IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.327 of 2005 Sib Shankar Dhar. Versus The State Of Bihar & Ors With CWJC No.8356 of 2010 1. Sib Shankar Dhar S/O Late Amulya Kumar Dhar Permanent Resident Of Bara Bazar, P.O.& P.S.Chaibasa, Distt-West Singbhum, Jharkhand , Presently Residing At House No. 327-A, (Ground Floor), Ratan Singh Marg, Gali No. 2, Meethapur Village, Badarpur, New Delhi-110044 Versus 1. The State Of Bihar 2. The Principal Secretary, Department of Home Govt. of Bihar, Old Secretariat Building, Patna-800015 3. The Director, Sainik Kalyan Nideshalaya Hutment No. 10, Old Secretariat Building, Patna-800015 ----------- 3. 18.10.2011 Heard learned counsel for the petitioner and the State in both the writ applications. The petitioner is common in both. The claims are interconnected. They are thus being disposed by this common order. In C.W.J.C. No. 327 of 2005, the petitioner is aggrieved by the order dated 3.2.2004 visiting him with the penalty of reversion from the post of Assistant to the initial and basic grade of Clerk and that nothing beyond subsistence allowance was payable for the period of suspension. In C.W.J.C. No. 8356 of 2010 the impugned order dated 9.3.2009 denies him relief in context of his claim for appointment to the post of Assistant. If the petitioner persuades the Court to interfere with the order of 2 punishment dated 3.2.2004, the subsequent order dated 9.3.2009 shall become relevant for adjudication with regard to his claim for the post of Assistant. The petitioner has already superannuated on 28.2.2004. A memo of charge dated 24.5.1999 was issued to the petitioner on three grounds which were interconnected. The thrust of the allegation was that original appointment was made as a Clerk in the District Sanik Welfare Office. He wrongly obtained deputation as an Assistant and by practicing fraud/forgery got himself assimilated in the cadre of Assistant. Learned counsel for the petitioner submits that he had raised serious objections with regard to procedural infirmities during the course of the departmental enquiry as detailed in his reply to the second show cause notice submitted on 12.11.2001 at Annexure-16. The allegations raised inter alia were for admission of evidence behind his back, non consideration of his defence and pleadings before the enquiry officer etc. Dealing with the same the impugned order simply states that the reply to the second show cause notice had been considered along with the enquiry report, other facts and papers. It is 3 submitted that if the petitioner had raised objections with regard to procedural infirmities in the conduct of the departmental enquiry, the disciplinary authority was required to apply his mind to the objections and accept or reject the same by at least a brief order indicating his satisfaction why the allegations being made by the petitioner were not correct. In absence of the same it could not be said that his reply to the second show cause notice had been properly considered. Counsel for the State sought to persuade the Court that if the order itself recites that the reply had been considered, that may be sufficient and the Court may not interfere with the order of punishment in a departmental proceeding. The jurisdiction of the writ Court exercising powers of judicial review over an order of punishment passed in a departmental proceeding is primarily confined to infirmities in the decision making process only. Thereafter if allegations of perversity, arbitrariness or that no reasonable person would have come to such a conclusion on the materials produced are raised the Court may or may not go into the issues. The Court has gone through the objections 4 taken in the reply to the second show cause notice and which are detailed in nature. The petitioner appears to have raised serious issues with regard to alleged procedural infirmities during the departmental proceedings. Whether the allegations of procedural infirmities were correct or not and whether any prejudice had been caused to the petitioner was required to be considered by the disciplinary authority. If the enquiry was vitiated for reasons of non compliance with procedure, it cannot be said that any departmental enquiry was held in accordance with law. Conversely if the disciplinary authority opined that the alleged procedural infirmities do not go to the root of the proceedings and have not prejudiced the delinquent in any manner, the disciplinary authority is free to arrive at his own conclusions. But fairness required the disciplinary authority to pass a reasoned and speaking order. Reasons are the ultimate control on the exercise of power. An order without reasons becomes arbitrary. What happens if the disciplinary authority does not find grounds to reject the objection? Can he summarily say that the objections are not acceptable because he finds it inconvenient to deal with it? 5 Counsel for the respondents have raised an objection that the petitioner has not availed the remedy of a statutory Appeal. All grounds of alleged procedural infirmities in the proceedings can well be examined by the appellate authority also. The petitioner has made allegations of procedural infirmities in the departmental proceedings. If the infirmities be of a nature which go at the root of the proceeding virtually amounting to no proceeding in accordance with law, no useful purpose shall be served by remanding the matter to the appellate authority. Conversely if the disciplinary authority be of the opinion that even if there were any infirmities they do not go at the root of the proceedings and no prejudice has been caused to the delinquent, matters shall be entirely different when the remedy of appeal may follow. Keeping in mind that the petitioner has already superannuated, no useful purpose shall be served by remanding the matter to the appellate authority. If the appellate authority were of the opinion that there were procedural infirmities, the matter shall be again have to be remanded to the disciplinary authority. 6 The impugned order dated 3.2.2004 is accordingly set aside and the matter is remanded to the disciplinary authority to pass a reasoned and speaking order displaying full application of mind to the allegations made in the reply to the second show cause notice for procedural infirmities in the conduct of the proceedings vitiating the order of enquiry. Let such fresh orders be passed, reasoned and speaking in nature within a maximum period of three months from the date of receipt/production of a copy of this order before the disciplinary authority. The impugned order dated 9.3.2009 in C.W.J.C. No. 8356 of 2010 holds that the petitioner was appointed in a Mufassil cadre but was deputed in the Directorate (Headquarters). The post of Clerk related to the regional office while the post of Assistant pertains to the Secretariat and attached offices and the procedure for appointment of the two were also different. The contention of the petitioner that there was a separate cadre of the Sanik Welfare Board to which normal government Rules did not apply was incorrect reiterating that his appointment as an Assistant was the result of a fraud and forgery practiced by him. The occasion to test the correctness of the order in light of orders passed in 7 C.W.J.C. No. 1384 of 2004 and L.P.A. No. 711 of 2006 shall arise only after the final adjudication of the order of reversion dated 3.2.2004 questioned in C.W.J.C. No. 327 of 2005. If the reversion is upheld C.W.J.C. No. 8356 of 2010 may become infructuous. C.W.J.C. No. 327 of 2005 is allowed and C.W.J.C. No. 8356 of 2010 is disposed as premature. P. Kumar ( Navin Sinha, J.)