IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15536 of 2009 1. KRISHNA KUMAR SINGH S/O LATE RAM SAKAL SINGH R/O M.P. BAGH, ARAH, NEAR OLD POLICE LINE, P.S.- ARAH, DISTT.- BHOJPUR, PRESENTLY RESIDING AT B-104, SANGEETA SHASHWATAM APARTMENT, NEAR SHYAMAL HOSPITAL, MAURYA PATH, KHARJPURA, P.S.- SHASTRI NAGARM DISTT.- PATNA Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE JOINT SECRETARY WATER RESOURCES DEPARTMENT (IRRIGATION), GOVERNMENT OF BIHAR, PATNA 4. THE SPECIAL SECRETARY IRRIGATION, SINCHAI BHAWAN, PATNA 5. THE DEPUTY SECRETARY WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 6. THE CHIEF ENGINEER (MECHANICAL) WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 7. THE EXECUTIVE ENGINEER IRRIGATION, MECHANICAL DIVISION, MUZAFFARPUR 8. THE SUPERINTENDING ENGINEER IRRIGATION, MECHANICAL DIVISION, MUZAFFARPUR 9. THE ACCOUNTANT GENERAL BIHAR, PATNA ----------- 2/ 04/12/2009 Heard learned counsel for the petitioner and learned counsel for the State as also learned counsel for the Accountant General, Bihar. The petitioner was proceeded against departmentally on allegations of defalcation along with violation of Government circulars and provisions of Rules regulating withdrawal of cash through cheque, payment of cash etc. The proceedings remained inconclusive when he retired in 2000 leading to conversion of the proceedings under Section-43B of the Pension Rules. He came to this Court challenging the final order of punishment in C.W.J.C. 2 No.14447/01. This Court on 9.3.2006 noticed that the procedure followed for differing with certain aspects of the enquiry was without complying with the requirement for an adequate second show cause notice, in accordance with law. The order of punishment was quashed with liberty to proceed afresh in accordance with law from the stage of the error to be completed within six months. The petitioner was issued a fresh show cause notice, considered erroneous, when he came to this Court again in C.W.J.C. No.5542/07, during the pendency of which a revised second show cause notice was issued. This Court disposed the matter observing that the issue should now be decided in accordance with law within a maximum period of three months. Thereafter, the impugned order dated 20.8.2009 has followed. Learned counsel for the petitioner with reference to the second show cause notice issued after the earlier order of this Court in C.W.J.C. No.14447/07, at annexure-8, submits that it only states that the disciplinary authority does not concur with the exoneration by the enquiry officer 3 on charges ‘p’ and ‘N’ and that the petitioner against an advance of Rs.10,55,793/- had performed works for only Rs.02,51,569/- and, therefore, a sum of Rs.08,10,304/- remained outstanding. It only encloses the second enquiry report, the Flying Squad Report and the earlier enquiry report calling upon him to explain. This, it is submitted, is not the mandate of the law which requires the grounds for difference of opinion to be set out along with the materials in support of the grounds for the difference of opinion. Learned counsel for the State submits that the materials on which the difference of opinion was proposed has been mentioned in the second show cause notice i.e. the new enquiry report, the Flying Squad Report and the old enquiry report. Further prayer is made for adjournment to file a counter affidavit. Learned counsel for the petitioner has not been able to point out any procedural infirmity in the departmental proceedings insofar as the other two charges stated to have been proved are concerned. 4 This Court finds no merit in the writ application to that extent. Insofar as the two charges stated not to have been proved, the law mandates that if the disciplinary authority proposes to take a different view of the matter, that is his prerogative, but in that event he is required to set out the reasons for the difference of opinion along with the materials in support of those reasons with an opportunity to the delinquent to meet the same. This necessarily postulates classification and identification of the grounds for difference of opinion. This has then to be supported by the materials on which the disciplinary authority proposes to reply. This is considered necessary to enable the delinquent to know as to what is passing the mind of the disciplinary authority and then for him to answer the same. The requirement for the disciplinary authority to disclose his mind by setting out the reasons and materials in support of the reasons is nothing, but an integral facet of the principles of natural justice. Unless the petitioner is clearly told as to what is the reason for difference of opinion 5 and what are the grounds he is supposed to meet, what was to be replied to. If he is not made aware of issues passing the mind of the disciplinary authority what does he reply to. This procedural requirement to be complied with in the case of departmental proceedings is not an empty formality, but a vital requirement considering the adverse effect that it has on the delinquent. In (2004) 13 S.C.C. 797( S.B.I. AND OTHERS VERSUS ARVIND K. SHUKLA), the disciplinary authority did not agree with certain conclusions of the enquiry officer to hold that certain charges had been fully proved. The Single Judge held that non-furnishing of reasons which weighed with the disciplinary authority to differ with the findings of the enquiry officer to the delinquent was fatal and vitiated the order of punishment. The writ petition was allowed. The appeal of the bank was dismissed. Dismissing the appeal, the Supreme Court held that the disciplinary authority was required to record its tentative reasons for disagreement and furnish the same to the delinquent officer with an opportunity to meet it before recording the ultimate findings. 6 The petitioner filed his reply to the second show cause notice on 24.7.2007 at annexure-19. At paragraph-6 and 16 of the same in addition to paragraphs-14 and 15 he has taken a specific objection that in absence of being told the reasons for the difference of opinion along with the materials in support of the difference of opinion he is unable to understand what he is to answer. The matter pertains to a departmental proceeding which this Court is adjudicating on the basis of records of the respondents themselves. No useful purpose shall be served by a counter affidavit which, in any event, cannot explain the second show cause notice. It is not the case of the respondents that the second show cause notice assailed by the petitioner is not the correct second show cause notice. If the respondents insist on passing orders contrary to law despite having been given adequate opportunity to rectify the errors committed by them explained in detail in judicial orders and verdicts there is little that the Court can do about it except to fulfil its duty by relying upon 7 (1999) 4 S.C.C. 62 (V.M. CHANDRA VERSUS UNION OF INDIA AND OTHERS) to quash the order insofar as the unsustainable part is concerned. This Court cannot lose sight of the manner in which the petitioner has had to pursue the matter by more than one writ application before this Court. The order of punishment dated 20.8.2009, therefore, is harsh. It not only orders recovery, but withholds entire pension. It is not sustainable in its present form. It is accordingly set aside. Since the punishment was integral with regard to the four charges and this Court has not interfered with the finding on the other two proved charges, the command of punishment, per se, does not become illegal. It now becomes an issue of quantum of punishment. The matter is remanded to the respondent authorities to consider the matter in light of the aforesaid discussion and pass a reasoned and speaking order in accordance with law, considering that the entire pension has been withheld, within a maximum period of two months 8 from the date of receipt/production of a copy of this order. The writ application is dismissed in part, allowed in part with directions. KC ( Navin Sinha, J.)