IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6313 of 2003 RAM BHAJAN RAM, son of late Shivgadhi Ram, resident of village Ramshar, P.S. Barhara, District Bhojpur … Petitioner Versus 1. THE STATE OF BIHAR through Commissioner, Patna Commissionary, Patna 2. The Commissioner, Patna Commissionary, Patna 3. The District Magistrate cum Conducting Officer, Nalanda 4. The Sub-divisional Magistrate, Nalanda … Respondents. ----------- 3. 26.8.2009 Heard counsel for the petitioner and the counsel for the State. Prayer of the writ petitioner as mentioned in paragraph no. 1 reads as follows:- “....... for quashing the order bearing memo no. 380 dated 9.5.2003 contained in Annexure-6 to this application issued under the signature of Respondent no. 2 whereby and whereunder the petitioner has been awarded two punishment first censured and secondly not to pay anything beyond subsistence allowance for the suspension period” Bereft of all niceties, the impugned order dated 9.5.2003 passed by the Commissioner of Patna Division inflicting punishment of Censure and stoppage of salary in the period of suspension cannot be sustained on the simple ground that the petitioner in course of a duly conducted departmental proceeding was exonerated by 2 the Enquiry Officer as is apparent from the content of the enquiry report. From the impugned order it appears that the Commissioner of Patna Division in capacity of disciplinary authority had straightway passed the order of punishment by recording a conflicting difference of opinion with the findings recorded by the Enquiry Officer. The petitioner’s assertion that he was not given any show cause notice by the disciplinary authority, the Commissioner of Patna Division, stands wholly substantiated from the contents of the impugned order dated 9th May, 2003 (Annexure 6) itself. There being also no counter affidavit filed by the State the aforesaid statement of the petitioner even otherwise has to be accepted. By-now it is well settled that the disciplinary authority has all the rights to differ with the opinion of the Enquiry Officer and can still proceed to hold a delinquent guilty but then the reasons regarding such difference of opinion by the disciplinary authority has to be given to the delinquent before inflicting punishment 3 as was also held in the judgment of the Apex Court in the case of Punjab National Bank vs. Kunj Behari Misra, reported in (1998) 7 SCC 84. Admittedly no such show cause notice was given to the petitioner and therefore, this Court has little option but to quash the order of punishment (Annexure 6) and remit the matter back from the stage of submission of enquiry report. It will be open for the present Commissioner of Patna Division to again go into the contents of the charge and also the enquiry report and the evidence on record and if he is of the opinion that the report of the Enquiry Officer cannot be accepted, such reasons for difference of opinion in the form of show cause notice must be given to the petitioner and after the petitioner files his reply to such show cause notice a final decision either exonerating or punishing the petitioner may be taken in accordance with law. Any financial benefit including payment of salary for the period of suspension and/or claim of the petitioner would however await the aforesaid final decision of the Commissioner, Patna 4 Division. Considering the fact that the charge against the petitioner is quite old and the order of his punishment, which has been quashed today, was passed in the year 2003, the entire exercise must be completed by the Commissioner of Patna Division within a period of six months from the date of receipt/production of a copy of this order. This writ application is accordingly allowed only to the extent indicated above. (Mihir Kumar Jha,J.) Surendra/