IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2151 of 2003 Ashok Kumar Morya, Son of Late Nathuni Prasad, Resident of Village Akauna, P.O. Sherghati, District- Gaya at present posted as District Sub-Registrar, Jamui. --------- Petitioner Versus 1. The State of Bihar. 2. The Secretary-Cum-Inspector General of Registration, Government of Bihar, Patna. ------ Respondents ----------- 7 14.7.2009 Heard counsel for the petitioner. No one appears on behalf of the State. Prayer in this writ application is to quash an order of punishment dated 30.10.2001 as also appellate order dated 21.8.2002 whereby and whereunder the petitioner has been subjected to a punishment of stoppage of five increments with cumulative effect in respect of misconduct covered by two separate memo of charge dated 2.11.1996 and 1.3.2000. Counsel for the petitioner has submitted that when an order of punishment of stoppage of five increments with cumulative effect was passed against the petitioner, the same had to be based on a full-fledged departmental proceeding but that was never conducted. Counsel for the petitioner in this respect would explain that as a matter of fact, initially the petitioner was asked to file his 2 explanation as with regard to a memo of charge dated 2.11.1996 (Annexure-6) pertaining to certain allegations of his tenure of posting as District Sub-Registrar, Nawada and when the petitioner had submitted a detailed explanation on 30.11.1996, the same was neither accepted nor rejected and subsequently, the petitioner was subjected to another departmental proceeding by resolution dated 1.3.2000 pertaining to certain charge of the period of his posting as District Sub- Registrar, Bahera. It is the case of the petitioner and in fact would also borne out from the records that in support of second memo of charge dated 1.3.2000, a departmental proceeding was conducted in which the enquiry officer had exonerated the petitioner from all the charges and yet the authorities went to pass the impugned order even without issuing any second show-cause notice disclosing the reasons for difference of opinion with the enquiry officer. Counsel for the petitioner in this context would refer to a specific averment in paragraph no.20 of the writ application, which reads as follows : - “That no proceeding whatsoever was 3 initiated against the petitioner before awarding major penalty of stoppage of five annual increments with cumulative effect, therefore, the impugned order is fit to be quashed.” Counsel for the State has not appeared and therefore, this Court has itself carefully perused the counter affidavit. From the reading of the exhaustive counter affidavit dealing mostly with the merit of the charges it is evident that the procedure for inflicting a major punishment in the case of the petitioner was not followed in letter and spirit. There is no denial in the counter affidavit that after the Enquiry Officer had exonerated the petitioner in respect of memo of charge framed by resolution dated 1.3.2000, the petitioner was given any notice disclosing the reasons for differing with the finding in the report of the enquiry officer. That apart, the first charge sheet dated 2.11.1996 and its consequential punishment of stoppage of two increments with cumulative effect has been sought to be explained in the counter affidavit by suggesting that it was a minor punishment. In this regard statement in 4 paragraph no.26 of the counter affidavit to the following effect:- “26. That the statement made in paragraph-20 of the petition it is stated earlier and the petitioner has accepted that he was awarded punishment of withholding of 5 increments (3 for Bahera and 2 for Nawada) on two different charges leveled against him while he was posted in Bahera Sub-Registry office and Nawadah District Registry office which may be treated as minor punishment. Moreover for charges against him regarding Bahera Sub-Registry office a formal departmental proceeding was initiated and for charges regarding Nawada, a departmental enquiry was conducted and the petitioner was asked to explain the charges and then after considering his explanation he was awarded the punishment of withholding of 3 and 2 increments for Bahera and Nawada respectively. Thus the petitioner’s prayer to quash the punishment order is not maintainable.” is by itself an admission that the impugned order of punishment was passed without application of mind as also without following the requirement of law. It is well settled that even if the disciplinary authority is not bound by the opinion of the enquiry officer, he, in case of differing with the findings of the enquiry officer, is duty 5 bound not only to give a notice but also disclose the reasons for such difference of opinion with the enquiry officer which may enable the delinquent to know the mind of the disciplinary authority for the purposes of his being held guilty. This aspect of the matter infact stand settled by the judgment of the Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in 1998 (7) SCC 84. Even the other aspect, that no order of punishment stopping an increment with cumulative effect being a major punishment can be inflicted without holding a regular departmental proceeding, is also well settled in different judgment of this Court including one in the case of Bachchan Prasad Singh Vs. The State of Bihar & Ors. reported in 2000 (3) PLJR 339, based on the judgment of the Apex Court in the case of Kulwant Singh Gill Vs. The State of Punjab reported in 1990 (6) SLR 73. There would be thus little scope for any further argument on this aspect that when no departmental proceeding was held against the petitioner as against the first memo of charge 6 dated 2.11.1996, the order of punishment of stoppage of two increments with cumulative effect is also unsustainable. In fact, this Court would also find no merit in that part of the case of the respondents that the petitioner was inflicting a minor penalty for charge dated 2.11.1996, inasmuch as, not only such stoppage of increment has been with cumulative effect but, in fact, in term of the impugned order, petitioner’s five increments have been withheld with cumulative effect. This Court, therefore, would also not find any justification in the reliance placed by the respondents in their counter affidavit on the appellate order, inasmuch as, the appellate order dated 21st August, 2002 a copy whereof has been brought to the notice of this Court and kept on record, which would itself go to show that not a word has been said by way of consideration of the facts and ground raised in appeal filed by the petitioner save and except that the State Government after considering the memo of appeal has taken a decision to reject the appeal of the petitioner. Such non-speaking order in terms 7 of the judgment of the Apex Court in the case of Ram Chander Vs. Union of India reported in AIR 1986 SC 1173 cannot be sustained and consequently, this Court must quash the appellate order dated 21st August, 2002 as sought to be referred to by the respondents in their counter affidavit. In the result, this application must be allowed and the impugned order as contained in Annexure-1 as also the aforementioned appellate order dated 21st August, 2002 are hereby quashed. Since the petitioner still continues in service, this Court would give liberty to the respondents to initiate a departmental proceeding as against the memo of charge dated 2.11.1996 within a period of three months from the date of receipt/production of a copy of this order and that if no departmental proceeding is initiated against the petitioner in this period, the respondents will be precluded from proceeding on the basis of this memo of charge against the petitioner. It is made clear that if the respondents shall intend to inflict minor punishment on the 8 basis of memo of charge dated 2.11.1996, they can definitely proceed to pass any appropriate order as the petitioner has already filed his show-cause reply to the memo of charge way back in the year 1996 itself. However, if the respondents intend to inflict a major punishment on the said memo of charge dated 2.11.1996 they will have to proceed by initiating a departmental proceeding. So far the second memo of charge dated 1.3.2000 is concerned, this Court must clarify that there would be no need to initiate a fresh proceeding because the enquiry officer has already conducted the proceeding and has submitted his report. Therefore, in the event, the respondents find any reason to differ with the findings with the enquiry report, such reasons along with a show-cause notice must be given to the petitioner within a period of three months from the date of receipt/production of a copy of this order and the petitioner’s reply thereto must be considered before passing any appropriate final order. It is also directed that since there 9 were two memos of charge, they would be required in law for passing two final orders and not one as was done earlier in this case while passing the impugned order of punishment. The payment of any monetary benefit by way of arrears and current amount, dependent on the final result of the departmental proceeding in respect of the both the memo of charges shall aside by the final decision which must be taken and communicated to the petitioner within a total period of nine months from the date of receipt/production of a copy of this order. That being so, this application is allowed with the aforementioned observations and directions. Rsh (Mihir Kumar Jha, J.)