IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10881 of 2010 1. Kari Ram, S/O Ramdhan Ram, R/O Village Tirhut ,P.S. Babubarhi, District- Madhubani. Versus 1. The State Of Bihar. 2. The Secretary, Rural Works Department,Govt. Of Bihar, Patna. 3. The Secretary, Road Construction Department, Govt.Of Bihar, Patna 4. The Joint Secretary, Road Construction Department, Govt.Of Bihar, Patna 5. The Joint Secretary, Rural Works Department,Govt. Of Bihar, Patna. 6. The Deputy Secretary, Vigilance,Road Construction Department, Govt.Of Bihar, Patna ----------- 2. 09.11.2011 Heard learned counsel for the petitioner and the State. The petitioner a Junior Engineer in the Road Construction Department on deputation to the Rural Engineering Organization in the Rural Works Department was placed under suspension and charges framed on 13.8.2009. The enquiry report dated 3.12.2008 exonerated him when second show cause notice for a difference of opinion on three charges, 2, 3 and 4 followed on 1.7.2009. The petitioner replied to the same. The contention that the grounds for difference of opinion were based on material beyond the charge need not engage the attention of this Court at this stage. The final order of punishment followed on 9.10.2009 imposing withholding of three annual increments with cumulative effect, posting in a non works 2 department. On 11.12.2009 fresh orders were passed that nothing beyond subsistence allowance was payable for the period of suspension. On 10.6.2010 after the petitioner had preferred an Appeal, orders were passed for recovery of Rs. 2,00,227/- from him. The counter affidavit states that the appeal of the petitioner has been dismissed. On a bare perusal of the appellate order dated 10.9.2010 the Court is satisfied that it is unsustainable on the face of it. The appellate order is cryptic, non-speaking in nature, and display no application of mind to the issues involved. Even an appellate order of affirmance is required to be reasoned. Such an order may not be very detailed like the original order but it must contain brief reasons and discussions indicating independent application of mind by the appellate authority from the charges, the findings and the grounds taken in appeal. This duty becomes more onerous when the enquiry report exonerates and the proceedings progress on a difference of opinion especially when the defence is raised that the grounds for difference of opinion are beyond the 3 memo of charge. The appellate order is required to disclose the satisfaction of the appellate authority on all issues before the appeal is dismissed. The petitioner has a right to know why his appeal is not acceptable. He has a right to be told on what grounds the defence taken by him in his memo of appeal were not sustainable and for what reason. In absence of such reasons being spelt out the appellate order becomes arbitrary and unsustainable. Reasons lend transparency to an order and leaves the aggrieved satisfied that his case had been considered. The order as its stand, disclosing no reasons, the petitioner does not know the grounds and reasons on which he has lost. The Appellate order is in gross violation of the statutory requirements laid down in Rule 27 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 which provides in Rule 27(2) as follows:- “27(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 14, the appellate authority shall consider:- (a) Whether the procedure laid down in these Rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) Whether the finding of the disciplinary authority are warranted 4 by the evidence on the record; and (c) whether the penalty imposed is adequate, inadequate or severe; and pass orders:- (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case: Provided that (i) the Commission shall be consulted in all cases where such consultation is necessary; (ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (i) to (v) of Rule 14 and an inquiry under Rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 19, himself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 18 and thereafter on a consideration of the proceedings of such inquiry and after giving the appellant a reasonable opportunity, as far may be in accordance with the provisions of clause (ii) of Rule 18, of making a representation against the penalty proposed on the basis of the evidence adduced during such inquiry, make such orders as it may deem fit; (iii) if the enhanced penalty which the appellate authority proposed to impose is one of the penalties specified in clauses (i) to (v) of Rule 14 and an inquiry under Rule 17 has already been held in the case, the appellate authority shall, make such orders as it may deem fit, after the appellant has been given a reasonable opportunity of making a representation against the proposed penalty; and (iv) no order imposing an enhanced penalty shall be made in any other case unless the appellant 5 has been given a reasonable opportunity, as far as may be, of making a representation against such enhanced penalty.” The order dated 10.9.2009 is unsustainable. It is accordingly set aside with the directions as noticed in (2006) 11 SCC 147 (Director (Marketing), Indian Oil Corpn. Ltd. v. Santosh Kumar) at Paragraph-11 as follows:- “11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set aside the order passed by the disciplinary authority and the Appellate Authority and remit the matter for fresh disposal to the disciplinary authority. The disciplinary authority shall consider the detailed representation made by the respondent and also consider the detailed report of the enquiry officer and the records placed before him in its proper perspective and decide the mater afresh on merits. The disciplinary authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the disciplinary authority. The order passed by the High Court is set aside for the above reason. We also set aside the direction issued by the High Court ordering reinstatement into service with continuity in service and all consequential benefits. The disciplinary authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. The civil appeal is disposed of accordingly. No order as to costs.” 6 The appellate authority is required to grant a personal hearing to the petitioner and then pass a reasoned and speaking order in accordance with law. Since the matter is being remanded to the appellate authority, the fresh order dated 10.6.2010 passed after the institution of the appeal on 20.11.2009 is permitted to be challenged by the petitioner in the restored appeal. Let the appellate authority in the aforesaid manner pass a reasoned and speaking order recording reasons and displaying application of mind to facilitate judicial review, should the need arise within a maximum period of four months from the date of receipt/production of a copy of this order. The writ application is allowed. P. Kumar ( Navin Sinha, J.)