IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6650 of 1996 Rah Grihi Mishra, son of Late Nathuni Mishra, resident of Village Dhobahan, P.s. sandesh, District Bhojpur. ------- Petitioner Versus 1. State of Bihar through the Secretary, Water Resources (Irrigation) Department, Sinchai Bhawan, Patna. 2. The Director, Revenue Administration, Water Resources (Irrigation) Department, Harding Road, Patna. 3. The Special-cum-Deputy Secretary, Water Resources ((Irrigation) Department, Sinchai Bhawan, Patna. 4. The Deputy Collector, Canal Revenue Division, Arah. --------- Respondents ----------- 9 02.11.2010 Heard Mr. R.N. Mukhopadhayay, learned counsel for the petitioner and Mr. Ranjan Kumar, Asst. counsel to A.A.G.-9 for the State. Prayer of the petitioner in this writ application reads as follows:- “1(i) For a direction against the office order baring Memo No.167 dated the 23rd November, 1995 issued by the respondent-Special Officer-Cum- Deputy Secretary, Water Resources (Irrigation) Department, Patna, by which the services of the petitioner has been dismissed from the post of Tahsildar (now known as Irrigation Revenue Inspector). (ii) For a direction against the order dated 3.6.1996 passed by the respondent-Secretary, Water Resources (Irrigation) Department, Patna by which the appeal petition of the petitioner has been rejected which has been 2 communicated to the petitioner by Memo No.872 dated 13.6.1996 issued by the respondent-Special Officer- Cum-Deputy Secretary.” Mr. R.N. Mukhopadhayay with regard to the aforementioned relief has made following submissions:- (1) Punishment order in respect of the charge in question having been already made subject matter of an earlier departmental proceeding wherein the petitioner was already punished, the impugned order in question cannot be sustained as it amounts to punishing the petitioner again for the same misconduct; (2) The Enquiry officer as with regard to charges in question had fully exonerated the petitioner and yet the authorities has proceeded on an assumption that the Enquiry officer had held the petitioner guilty and thus the impugned order is based on non-est and non-existent material. (3) The Enquiry officer in his enquiry report has held the petitioner guilty for the charge which was not even subject matter of disciplinary proceeding as reduced in definite memo of charge. (4) The order passed by the disciplinary authority is a non speaking order which does not deal with the facts and the 3 issues raised by the petitioner by way of his reply to the second show cause notice. (5) The appellate order is also a perfunctory order, inasmuch as, the appellate authority has failed to consider the issue raised in the memo of appeal in its true perspective. Counsel for the State as with regard to the aforementioned submission has stated that first of all the petitioner has some misconception that there was any punishment for the same misconduct for which he had already been punished earlier and in this context he has clarified both from the records as also from the counter affidavit that though the petitioner was subjected to two separate departmental proceeding, one relating to certain misconduct for the period of posting at Ara, the order in hand has been passed as with regard to the memo of charge dated 21.4.1990 and it has got nothing to do with the memo of charge for the period of functioning of the petitioner at Ara. Counsel for the State next contended that the actual enquiry report against the petitioner is dated 25.6.1991 and that was definitely supplied to the petitioner. As with regard to 4 the non-speaking order of punishment, counsel for the State has again, by placing the findings of the said enquiry report dated 25.6.1991 in respect of the corresponding charges, has tried to make out a case that even when the enquiry officer had more or less concentrated on recording the findings in respect of amount to be recovered from the petitioner, the charge of temporary embezzlement against the petitioner of keeping the Government money under his custody remains conclusively proved and as such, there was no requirement for recording a reasoned order. In the opinion of this Court, the first submission of the learned counsel for the petitioner has to be rejected, inasmuch as, it is absolutely clear from the memo of charge and the order of punishment relating to his period of his posting at Ara for which a separate departmental proceeding was drawn against the petitioner. In fact the charge in the said departmental proceeding was basically as with regard to not making the Revenue Receipt Book available in the tenure of his posting at Ara. The petitioner was also subjected to order of minor punishment dated 3.1.1991 as contained in 5 Annexure-7 whereas the memo of charge for the period of Piro was framed against the petitioner on 21.4.1990. Once this aspect becomes clear, it would be difficult for this Court to hold that the impugned order as contained in Annexure-1 dated 23.11.1995 is in respect of same charges for which the petitioner was already punished by an order dated 3.1.1991 (Annexure-7). This Court is also in agreement with the learned counsel for the State as with regard to the cumulative effect of the enquiry report against the petitioner, inasmuch as, the petitioner himself in his show-cause reply has admitted to have deposited various government amount under his custody after a long lapse of period. The charge of temporary embezzlement, in fact, stands proved not only from the detailed discussions made in the enquiry report but also from the show-cause reply filed by the petitioner himself. To that extent, this Court would not find any fault in the approach of the disciplinary authority in scanning the enquiry report for finding out the temporary embezzlement of Government money, a fact which was even otherwise proved from the own admission of the petitioner. 6 A question, however, would be that if such enquiry report had led to a positive action in the form of realization of the Government money as would appear from the order of the Deputy Collector and also admitted in the counter affidavit indicating that in terms of the recommendation made by the enquiry officer, the amount of temporary embezzlement was either recovered or adjusted, could the petitioner at the fag end of his service be inflicted with the most severe punishment i.e. dismissal from service. The issue of quantum of punishment was, therefore, required to be gone into by the disciplinary authority but as noted above, both the order of punishment and the appellate order of the appellate authority are completely silent about it. It is here that the prejudice theory can be invoked by the petitioner, inasmuch as, the enquiry officer, in his enquiry report dated 25.6.1991, had recorded that “ ” This concluding line of the enquiry report, of- course, has to be read with the other findings but nonetheless as this was the only enquiry 7 report made available to the petitioner,he had legitimate expectation of at least being made aware that the said concluding finding of the enquiry officer was not acceptable by the disciplinary authority. This aspect of the matter raised before the appellate authority, ought to have been gone into with more seriousness. The scope of judicial review as with regard to the quantum of punishment has been well circumscribed and unless the punishment is shocking to conscience this Court usually would not interfere with such punishments. Reference in this connection may be made in the case of B.C. Chaturvedi Vs. Union of India & Ors. reported in 1995(6)SCC 749. A question, therefore, would arise that if the petitioner was found to have been in the habit of depositing the Government revenue either to the tune of Rs. 100/- or Rs. 1000/-, that can also be taken to be a bonafide calculation mistake because in the report of the enquiry officer it has been found that on verification major chunk of amount were said to have been deposited by him within the stipulated period. Accounting mistake or short deposit of amount by a person having the responsibility of 8 revenue calculation and its deposit in the Government treasury, can always not be taken to be a act of misconduct much less misappropriation of the Government money even by way of temporary embezzlement. Admittedly, no criminal case was lodged against the petitioner for such temporary embezzlement. The petitioner infact had been, in fact, left with only nine months of his service when the order of punishment was passed. All these aspects of the matter, therefore, require reconsideration by the disciplinary authority himself, inasmuch as, his order, to say the least, is cryptic and does not deal with any of the issue raised by the petitioner in his second show-cause reply. The only relevant portion of the impugned order showing application of mind by the disciplinary authority reads as follows:- 9 The aforesaid order, in fact, does not go to show as to how much amount was temporarily embezzled by the petitioner and admittedly all the amount as mentioned in the memo of charge were never found to have been proved even by the enquiry officer. Thus, this Court is satisfied that both the impugned orders are bad to the extent of non-considering the specific reply of the petitioner. They being non-speaking orders, cannot be held to be in accordance with the settled principles of natural justice, which not only contemplates affording opportunity of by way of a show-cause notice after conclusion of the departmental proceeding but also considering the reply in an objective manner. The departmental proceeding is a quasi judicial proceeding and the entire fate and future of an employee is virtually dependent on the outcome of such departmental proceeding. Even otherwise, the requirement of an order passed in course of quasi judicial proceeding to be a reasoned is well settled and in this connection reference may be made in the case of S.N. Mukherjee Vs. Union of India reported in AIR 1990 SC 1984 which in fact has only reiterated 10 the earlier principle laid down by the Apex Court in the case of Siemens Engineer & Manufacturing Co. of India Ltd. Versus Union of India and Anr. reported in AIR 1976 SC 1785. Thus, both the impugned orders are quashed and the matter is remitted back to the disciplinary authority to proceed afresh from the stage of submission of second show-cause reply of the petitioner. In other words, the respondents are hereby directed to re-consider the second show-cause reply filed by the petitioner as contained in Annexure-18 dated 31.12.1994 and pass a fresh order. If the respondents would find that an order of punishment is still required to be passed, they will have liberty to pass such order but as the petitioner cannot be reinstated in service on account of completing his age of superannuation, such punishment will have to be within the parameters of Rule 43(B) of the Bihar Pension Rules. It is, however, made clear that the consequential benefit of quashing of both the impugned orders, will not be extended to the petitioner till a fresh order is passed by the Respondents strictly in accordance with law. This exercise should be completed as 11 expeditiously as possible preferably within a period of six months from the date of receipt/production of a copy of this order. With the aforesaid observations and directions, this application is disposed of. Abhay Kumar/Rsh (Mihir Kumar Jha, J.)