IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2993 of 2008 VASHISHTH NARAIN, SON OF SRI R.V. RAM, RESIDENT OF VILLAGE KAZIPUR, P.S. SIMRI, DISTRICT BUXAR. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. ADDITIONAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. DEPUTY SECRETARY-CUM-CHIEF VIGILANCE OFFICER, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. ------------------------------------------------------------------------------------------------ RESPONDENTS For the petitioner :- Mr. Chitranjan Sinha, Sr. Advocate Mr. P.N. Pathak, Advocate For the State :- A.A.G. 5 ----------- 3 29.4.2011 The petitioner who is an Executive Engineer in the Road Construction Department has challenged the order contained in Annexure-1, dated 7.12.2007 by which the petitioner has been awarded punishments in a departmental proceeding. The petitioner has also challenged the second show-cause issued to the petitioner contained in Annexure-A dated 27.7.2007. The questions that have been raised in this writ application are :- 1) The order passed by the disciplinary authority (Annexure-1) is a non-speaking order. 2) The second show-cause issued to 2 the petitioner is not in accordance with law, for the reason that the authorities concerned have pre-judged the issues and that no reasons have been specified for differing with the enquiry report. The facts of the case are that the petitioner was issued a charge sheet in which six charges were levelled against the petitioner. It would be relevant to give a synopsis of the charges as mentioned in Annexure-6. A) It is alleged that the petitioner has supplied excess of bitumen to the Contractor to the extent of 132.07 metric tones. B) The petitioner ought to have recovered the excess advance given to the Contractor which is sum of Rs 1,09,23,938/-. C) After local inspection of the road concerned, it was found that the road were in a bad condition, which indicates that there has been misuse of Government‟s funds. D) That on inspection made on 16.3.2001, it was found that the road was not built in accordance with the 3 specifications. E) That the work was completed beyond the time fixed in the agreement entered between the State and the Contractor. F) That the petitioner had paid an excess sum of Rs. 2,65,284/- to the Contractor for „sand filling work‟. An enquiry took place and the enquiry officer has found that the charges against the petitioner have not been proved. The recommendations were sent to the disciplinary authority who issued a second show-cause notice on 27.7.2007. Considering the points that have been raised in this case, it would be relevant to quote the portion of the show cause which is under challenge on the grounds mentioned in this order. It is said that “lapkyu inkf/kdkjh ls izkIr tk¡p izfrosnu ds leh{kksijkzUr ;g ik;k x;k tcfd vkids izHkkj xzg.k djus ds iwoZ gh 486-29 ,e0Vh0 fcVwfeu laosnd dks fuxZr dj fn;k x;k FkkA fQj 150 es0Vu0 fcVwfeu fuxZr djus dk dksbZ vkSfpR; ugha gSA ;fn vkids v/khuLFk lgk;d vfHk;ark@duh; vfHk;ark }kjk vkids vuwefr ds fcuk 150 ,e0Vu0 fcVqfeu fuxZr fd;k x;k ijUrq muds fo:) vkids Lrj ls dkjZokbZ ugha dh xbZ lkFk gh laosnd dks iwoZ esa fuxZr fcVqfeu ls dk;Z djkdj ’ks"k fcVqfeu dh dVkSrh dj olwyh dh dkjZokbZ ugha dh xbZA bl izdkj vkjksi la0& A ,oa AA izekf.kr gksrk gSA vkjksi la0 3 bl vk/kkj ij izekf.kr gksrk gS fd tk¡p ds Øe esa djk, x, dk;Z dh xq.koRrk dkQh [kjkc ik;h x;h] iFk ijr dbZ LFkkuksa ij ttZj ik;k x;kA tk¡p inkf/kdkjh }kjk bl iFk esa O;; fd, x, lkjs jkf’k dks vuqi;ksxh crk;k x;k gSA vkjksi la0 4 bl vk/kkj ij izekf.kr gksrk gS fd vkids 4 }kjk tks bl iFk esa dk;Z djk;k x;k gS mls eq[; vfHk;ark] nf{k.k fcgkj ¿;k0À miHkkx rFkk v/kh{k.k vfHk;ark dsUnzh; iFk vapy }kjk fujh{k.k ds nkSjku fof’kf"V ds vuq:I ugha ik;k x;k gSA vr% tk¡p izfrosnu ls mDr vlgefr ds vkyksd esa viuk fn~olh; dkj.k i`PNk i= fuxZr dh frfFk ls iUnzg fnukas ds vUnj lefiZr fd;k tk, fd D;ksa ugha mDr vfu;ferrk ds fy, vkids fo:) n.M nsus dh dkjZokbZ dh tk,A On perusal of the aforesaid show- cause, it appears that the disciplinary authority has levelled or repeated the allegations as formulated in the charge sheet and thereafter has come to a finding that “ Iis prakar aarop sankhya I avam II pramanit hota hai”. Similarly as far as charges 2, 3 and 4 the paragraph ends by saying that “is aadhar par pramanit hota hai-------” and finally concludes that on the basis of the aforesaid show-cause, the order of punishments is to be issued. On the basis of the aforesaid facts two points arise. Firstly, it is well settled law that while issuing a show-cause notice the disciplinary authority is required to express the reasons for differing with the enquiry report. Merely repeating the allegations without giving any inkling of the doubts or reasons that have arisen in the mind of the disciplinary authority does not satisfy the procedure of issuing a show- 5 cause notice. The concerned delinquent on the basis of the second show-cause gets an opportunity to answer the doubts and meet the reasons, pointed out by the disciplinary authority for differing with the findings of the enquiry officer. Merely making a summary of the allegations does not fulfill the manner in which the show-cause notice should be issued. Tentative reasons ought to be set out for differing with the finding by the enquiry officer. The word “pramanit” when translated into English as per the standard Hindi to English dictionary means “authentically proved” whereas the meaning in OXFORD dictionary is “proved, confirmed (as the assertion), certified”. Thus, the disciplinary authority while issuing a second show-cause notice has basically pre- judged the issue. For the aforesaid propositions I may refer to two decisions of the Supreme Court reported in (1999) 7 SCC 739 (Yoginath D. Bagde Vs. State of Maharashtra & Anr.) The Supreme Court on this issue has referred to several cases including Punjab National Bank 6 & Ors. Vs. Kunj Behari Misra [(1998) 7 SCC 84] as well as the decision rendered in Ram Kishan Vs. Union of India (1995) 6 SCC 157. It has been observed that a delinquent employee has a right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved it is all the more necessary to give an opportunity of hearing to the delinquent officer. The formation of the opinion of the enquiry officer should be tentative and not final. He must informed of the reasons as to why the disciplinary authority has proposed to disagree with the findings of the enquiry officer. It has been held that this is in consonance with Article 311 of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges 7 against him and given a reasonable opportunity of being heard in respect of those charges. “Right to be heard would be available to the delinquent up to the final stage”. This right being a constitutional right cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution. Similarly in the case of Lav Nigam Vs. Chairman & MD, I.T.I. Limited & Anr., reported in (2006) 9 SCC 440 is also on the issue that not only should the delinquent be given an opportunity to be heard if the disciplinary authority differs with the view taken by the enquiry officer but he is also bound to give tentative reasons for coming to the conclusion with respect to the difference. Thereafter the delinquent would have to be served with a notice relating to the punishment proposed. In the present case the disciplinary authority has not given any reasons for differing with the findings of the enquiry officer. In fact the disciplinary authority has gone a step ahead by stating that the charges are 8 “proved” (izekf.kr gksrk gS). As such this Court finds that the second show-cause issued to the petitioner is defective. The second proposition that arises in this case is whether the order passed by the disciplinary authority on the show-cause filed by the petitioner specifies the requirement of being a reasoned order. Annexure-1 would indicate that the disciplinary authority has not applied his mind and has not stated the reasons for differing with the Enquiry Officer rather has come to a conclusion on the basis of the charges levelled that the petitioner is guilty and has awarded punishments. On behalf of the State, it has been argued that the second show-cause issued to the petitioner does give tentative reasons, inasmuch, as it is stated that the petitioner has not acted in accordance with the contract agreement and has supplied excess bitumen and has also not ensured that the standard of the road laid down was according to the specifications. The question would be that while coming to this conclusion, even if it is supposed to be 9 tentative conclusion, some reasons for differing with the conclusions of the Enquiry Officer ought to be mentioned. The delinquent ought to have been given an opportunity as stated earlier to know the mind of the disciplinary authority so that he should file an effective show-cause. It has also been argued that the word “izekf.kr” does not mean that it is proved rather it is a tentative finding. I do not agree to the submissions made by the learned counsel appearing on behalf of the State as the language of the show-cause ought to be such, that it would appear that it is a tentative finding. The next argument raised on behalf of the State is that the petitioner ought to have filed an appeal in this case before the Hon‟ble Governor. At this stage when the pleadings are completed and the Court has an opportunity to examine the documents and the pleadings of the parties, it cannot ignore the fact that the final order would suffer from an inherent defect which is essential part of all proceedings in a Court i.e. the order has been passed without following the 10 principles of natural justice and is not in consonance with Article 311(2) of the Constitution. I thus, do not find any merit in the objection raised by the counsel for the State. It would be travesty of law to send it back, so that an appeal may be filed only to be remanded again. Once the facts are before the court, it is only proper that they should be considered and a decision rendered by the by the Court. Counsel for the State submits that the punishments imposed are minor punishments and as such there is no requirement that a show-cause be issued and the matter be remanded for rehearing on this issue. The punishments imposed on the petitioner are as follows: 1) Reduction to lowest stage of pay scale in Executive Engineer for three years and during such reduction no increment shall be paid but on expiry of the aforesaid three years the reduction will not have the effect of postponing the future increment of his pay. 2) Censure. 3) The petitioner would not be 11 entitled to grant of pay during the suspension period. In this context, it would be relevant to mention the minor punishments which are defined under Rule 14 of the Bihar Servants (Classification, Control and Appeal) Rules, 2005. The following are the minor punishments: i)censure; ii)withholding of promotion; iii)recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; iv) reduction to a lower stage in the time scale of pay for a period not exceeding three years, without cumulative effect; v) withholding of increments of pay with cumulative effect. The punishments awarded to the petitioner cannot be said to be minor as the first and the last punishments do not come within the definition of a minor punishment. It has next been argued that unless the petitioner pleads prejudice caused to 12 him as a result of issuance of a defective show-cause, the Court should not interfere in the matter. For this purpose counsel for the State refers to the case of Chairman, Ganga Yamuna Gramin Bank & Ors. Vs. Devi Sahai, reported in (2009) 11 SCC 266. The facts of the case were that the petitioner who was a bank employee was issued a show- cause notice against the charges levelled against him. The petitioner did not appear on notice. Thereafter despite several notices and advertisements he did not appear in Court rather he filed his show-cause. The enquiry officer submitted an ex-parte report. The report was supplied to the petitioner and he was asked to file a second show-cause. The petitioner did not respond to the show-cause issued to him. Thereafter several reminders and letters were issued to the petitioner, he still did not appear as a result the disciplinary authority imposed a punishment of dismissal upon him. A writ was filed by Devi Sahay in which he claimed that the entire proceedings be set aside as they were in violation of the principles of natural justice. The High Court held that 13 since the guidelines of NABARD are mandatory in nature, non compliance of the guidelines issued by NABARD vitiates the entire proceedings. The petitioner did not refer to the rules of the bank nor did the petitioner specify the reasons as to why the enquiry report was defective. In such an extreme circumstance, the Supreme Court has held that no prejudice was caused to the petitioner especially in view of the fact that the bank rules did not envisage the issuance of a second show-cause notice on a delinquent. Thus, this case has no applicability in the facts of the present case. Counsel for the State has also relied on the case of Union of India & Ors. Vs. Alok Kumar & analogous cases, reported in (2010) 5 SCC 349. In this case the Court had considered the circumstances under which it can be pleaded that there is a violation of the principles of natural justice. In this regard the Supreme Court has held as follows: “The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non- mandatory rules or violation of natural 14 justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.” In the present case the second show- cause issued does not disclose the reasons for differing with the enquiry officer who had exonerated the petitioner from the charges levelled against him, but also pre- judges the issues which on the face of it are not permissible. The prejudice would be apparent from the face of the document as it discloses the mind of the disciplinary authority, who without even considering the second show-cause has held the petitioner guilty for the offices. Thus, the very issuance of the second show-cause is negated by the contents thereof. On the basis of the aforesaid discussions, this Court comes to the conclusion that Annexure-1, the order of the disciplinary authority suffers from the 15 defect that it does not disclose the reasons for imposing punishments of the petitioner. The second show-cause is defective for the reasons mentioned aforesaid. In the result, I quash Annexure-8, dated 26.7.2007 issued by the Deputy Secretary-cum-Vigilance Officer, Road Construction Department and the Notification contained in Annexure-1 14116(S) dated 7.12.2007 imposing punishment on the petitioner. I further direct that the disciplinary authority should issue a second show-cause notice to the petitioner indicating the reasons for “prima facie” differing with the findings of the Enquiry Officer, giving an opportunity to the petitioner to file a show cause and thereafter pass a reasoned order, if in case the disciplinary authority comes to the conclusion that the charges are proved against the petitioner. This writ application is allowed for the reasons mentioned aforesaid. Sanjay/A.F.R. ( Sheema Ali Khan, J.)