IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5705 of 2008 UPENDRA CHOUDHARY Versus THE CHAIRMAN, Bihar State Electricity Board & ORS ----------- 6. 12.05.2009 Heard learned Counsel for the petitioner and the learned Counsel for the Bihar State Electricity Board. While the petitioner was in service at the Electric Supply Sub Division, Muzaffarpur (East), Anti Power Theft Squad raided the premises of one M/s Deepak Electro Casting Pvt. Limited at Muzaffarpur, when theft of electric energy was detected on 5.8.1995. The petitioner was placed under suspension and departmental proceedings initiated. An enquiry report of exoneration came to be submitted. Nonetheless the order of punishment dated 14.7.1998 came to be passed visiting him with punishment of censure to be entered in the ACR for the year 1995-96 and that nothing more than subsistence allowance during the period of suspension would be payable but the period of suspension would be treated as spent on duty for terminal benefits. The petitioner is stated to have preferred an appeal against the same which is still pending. It is submitted that in this situation the petitioner retired on 30.6.2007 whereafter the authorities have passed an order on 28.1.2008 prejudicially affecting the petitioner financially by re- fixing his emoluments while in service. Learned Counsel for the petitioner submits that after the enquiry report of exoneration was submitted no second show cause notice was issued to the petitioner before the respondents decided to differ with the same and imposed punishment on 2 14.7.1998 on the premise that it could not be said that the petitioner had no knowledge of the theft. He submits that this does not tantamount to a finding of guilt. In any event, the respondents were obliged to give a second show cause notice disclosing the tentative reasons why and to what extent they were differing with the report of the Enquiry Officer along with the materials for difference of opinion with opportunity to rebut the same. That not having been done the impugned order dated 14.7.1998 is not sustainable. It is next submitted that in similar circumstances one Ram Pujan Sah, a Junior Engineer, likewise was placed under suspension on similar allegation with respect to another location and that his appeal also remained pending, this Court directed expeditious disposal of the appeal, the respondents on 29.7.2005 absolved him of the guilt in appeal. Learned Counsel for the board has raised the issue of delay in the writ petition filed in 2008 challenging an order of punishment of 1998. He is however unable to satisfy the Court why the appeal filed by the petitioner before the Board has remained pending. That obliterates the objection of delay. The counter affidavit of the respondents is silent on the issue of the enquiry report of exoneration and absence of second show cause notice for difference of opinion with the same. Since the petitioner has already preferred an appeal and which is pending before the authorities all these aspects of the matter can be appropriately considered therein when the respondents are also obliged to deal with their own order dated 3 29.7.2005 in context of one Ram Pujan Sah when the petitioner alleges that he is similarly situated but is being accorded different treatment. Considering that the petitioner is stated to have retired this Court considers it proper to direct that no coercive action shall be taken against him in context of the order dated 28.1.2008 of re-fixation of his emoluments till disposal of the appeal by the respondents themselves. The writ application stands disposed off. Snkumar/- (Navin Sinha,J.)