IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7458 of 2007 DR.ARUN KUMAR SINGH, S/O Late Durga Prasad Singh, R/O Village- Bhotiya, P.S.- Simri Bakhtiyarpur, District- Saharsa. ……….Petitioner. Versus 1. THE STATE OF BIHAR. 2. Commissioner cum Secretary, Health Services Bihar, Patna. 3. The Deputy Secretary, Health (Medical Education & Family Welfare) Department, Bihar, Patna. 4. The Civil Surgeon cum Chief Medical Officer, Gaya, District-Gaya. ……..Respondents. ----------- 4 17.01.2011 The petitioner has filed the present writ application for quashing the Notification No. 1354(2) dated 13.08.2002 as contained in Annexure-6, issued by the Respondent no. 3, whereby the petitioner has been punished with censure and deduction of salary (save and expect the subsistence allowances) for the period the petitioner was under suspension. The petitioner has also prayed for quashing the Appellate Order dated 18.07.2003 passed by Respondent no. 3 as contained in Annexure-8 by which the appeal against the punishment order of the petitioner has been dismissed and the prayer has also been made for quashing of the order dated 30.03.2007 as contained in Annexure-9 issued by the Joint Secretary, whereby the representation of the petitioner against the impugned order of punishment dated 13.08.2002 has also been rejected. Besides this the petitioner has also prayed for payment of due salary 2 and subsistence allowance for the period under suspension as at the relevant time, the petitioner was posted as Assistant Medical Officer at Pilgrim Hospital, Gaya. The petitioner has challenged the order of punishment dated 13.08.2002 on the ground that the order of punishment does not reflect that the authorities have arrived at the conclusion that the petitioner was guilty, before inflicting punishment upon the petitioner. The petitioner's second contention is that no show cause was issued prior to imposing of punishment, as is required under Rule 55(A) of Civil Services (Classification Control and Appeal) Rules. The petitioner at the relevant time being Medical Officer was posted at Pilgrim Hospital, Gaya. The case of the petitioner is that on 24.07.2001, the petitioner along with others were put under suspension vide Annexure-3 because on 18.12.2000, during surprise inspection of the Health Minister, they were found absent. Subsequently, show cause was issued to the petitioner vide Memo No. 1496 (2) dated 7.11.2001, as contained in Annexure-4, whereby, the petitioner was directed to submit his show cause within two weeks. The charge against the petitioner as per the show cause was that the petitioner was found absent on 18.12.2000 at 3 9.45 AM, when the Health Minister conducted surprise inspection, which demonstrates indiscipline and carelessness of the petitioner. On 23.11.2001, the petitioner submitted his show cause to the effect that in pursuance to Memo No. 3939 dated 05.12.2000 issued by the Civil Surgeon, Gaya, the petitioner went to Saharsa to depose as a witness in a case in which the date was fixed on 15.12.2000. The petitioner proceeded for Saharsa on 13.12.2000 at night but he could not return back as he fell ill due to loose motion, dehydration and weakness, hence he stayed at Saharsa till 17.12.2000 and since there was a strike/bandhi called by some political organization, he could reach Gaya on 18.12.2000 in the afternoon and the petitioner then intimated the Civil Surgeon on 18.12.2000. Learned counsel for the petitioner had challenged the impugned order as contained in Annexure 6, whereby the petitioner’s suspension was revoked with awarding the punishment of censure and the petitioner was deprived of his salary for his suspension period except the subsistence allowance vide memo no. 1354(2), dated 13.08.2002 contained as Annexure 6, on two grounds, firstly that under Rule 55(A) of the Civil Services (Classification Control and Appeal) Rules, before imposing punishment, a show cause ought to have been 4 served but he was not given any opportunity before imposing punishment and secondly that the impugned order does not assign any reason for reaching to conclusion of amending punishment to the petitioner. The learned counsel for the petitioner has relied upon the judgment in the case of Chandradip Sinha Vrs the State of Bihar and Ors. reported in 2000(3) PLJR-64, part of para 3 of the said judgment reads as follows. “………………….an order imposing a punishment under Rule 55-A of the Rules must at least disclose application of mind by the disciplinary authority to the facts of the case and the reasons for the conclusion reached, even though they may be stated briefly.” Learned counsel for the State submits that in the reply to show cause the petitioner has himself admitted about his absence and since Saharsa was his native place, he deliberately chose not to return. Hence, the absence was admitted and the show cause was not found satisfactory, accordingly minor punishment was awarded. It is well settled principle that if any 5 procedure is prescribed for doing any act in a particular manner, then the same has to be done in that particular manner or not at all. This legal principle flows from the “latin Maxim” expression 'unius est exclusio alterius' which has been well interpreted in the case of Hukam Chand Shyam Lal Vs. Union of India and others, since reported in AIR 1976 SC 789, extract of paragraph 18 of the Judgment reads as:- “It is well settled that where a power is required to be exercised by a certain authority in a certain way it should be exercised in that manner or not at all and all other modes of performances are necessarily forbidden............” Rule 55(A) of Civil Services (Classification Control and Appeal) Rules prescribes issuing of notice to the delinquent before imposing penalty as specified in Rule 49(I),(II) or (IV). The punishment definitely comes within the purview of Rule 49(I) and admittedly no notice was given to the petitioner before imposing the said punishment. The impugned order does not reflect the reason on the basis of which the respondent authority reached the conclusion of imposing punishment and thus, on both the scores the impugned order as contained in Annexure 6 is bad. Hence the impugned 6 order of punishment as contained in Annexure 6 is hereby quashed with the liberty to the authorities to pass appropriate orders in accordance with law. The order as contained in Annexure 8 also does not reflect, in any manner, that the appeal was considered on merit. From perusal of Annexure 8 it appears that it is not an Appellate order rather the same is communication of dismissal of the appeal. In that view of the matter, this Court is not inclined to pass any order with regard to Annexure 8, since the original order of punishment has already been quashed. So far as the question of payment of salary and other claims of petitioner are concerned, that shall be subject to the passing of the afresh appropriate orders by the authorities as directed above. It is expected that fresh order will be passed within the period of six months from the receipt/production of the order of this Court. Accordingly, the writ application is disposed off. Bhardwaj/- ( Dinesh Kumar Singh, J.)