IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3335 of 2010 1. BHUDEO PRASAD YADAV @ BHUDEO YADAV S/O LATE SITAL PRASAD YADAV R/O SIDHI GHAT (NEAR BISHARI ASHTHAN), P.S.- SULTANGANJ, DISTT.- BHAGALPUR, RETIRED FROM THE POST OF PANCHAYAT SECRETARY, BLOCK OFFICE- KHAGARIA, DISTT.- KHAGARIA Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER MUNGER DIVISION, MUNGER 3. THE DISTRICT MAGISTRATE KHAGARIA 4. THE DISTRICT PANCHAYAT RAJ OFFICER KHAGARIA 5. THE BLOCK DEVELOPMENT OFFICER PARBATTA, DISTT.- KHAGARIA 6. THE BLOCK DEVELOPMENT OFFICER KHAGARIA, P.S. AND DISTT.- KHAGARIA 7. ABHAY KUMAR SINGH S/O NAME NOT KNOWN TO THE PETITIONER DISTRICT MAGISTRATE, KHAGARIA ----------- 2/ 13/09/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was suspended on 19.8.2000 and seven charges framed. The enquiry report exonerated him of the charges. An order of punishment dated 8.4.2001 of ‘censure’ and that only ‘subsistence allowance’ was payable for the period of suspension followed. His review came to be dismissed on 28.6.2001. On 15.4.2009 the appellate authority set aside the order of punishment noticing non-compliance with procedures by giving of a second show cause notice for a difference of opinion along with the report of exoneration. The matter was remanded to proceed afresh in accordance with law. On 2.9.2009 the disciplinary authority cancelled the order of - 2 - punishment by letter No.369. Simultaneously, by letter No.370 dated 2.9.2009 a second show cause notice was issued. The petitioner filed his reply. Final order of punishment dated 29.1.2010 then came to be passed for ‘censure’ and that nothing beyond ‘subsistence allowance’ was payable. The petitioner superannuated on 31.1.2010. Learned counsel for the petitioner submits that the appellate authority set aside the order of punishment dated 8.4.2001 and remanded the matter to proceed afresh in accordance with law from stage of submission of enquiry report. The disciplinary authority in his wisdom chose not to proceed further and by order dated 2.9.2009 cancelled the punishment. There was thus no justification for the disciplinary authority to reopen matters by a second show cause notice two days prior to the superannuation of the petitioner. The order of punishment dated 29.1.2010 is therefore not sustainable as the proceedings had been closed by the disciplinary authority himself. Learned counsel for the State points out that the District Magistrate acted only in furtherance of the order of remand by the appellate authority. The petitioner has not placed on record the second show cause notice issued on 2.9.2009 vide letter dated 370. - 3 - The order of the appellate authority set aside the order of punishment with an order of limited remand to proceed afresh in accordance with law from the stage of submission of the enquiry report. The order of punishment therefore did not become non-existent unlike the setting aside of an order on merits. The order of punishment was sent into suspended animation for confirmation or setting aside on merits, as the case may be, after a second show cause notice was issued to the petitioner for a difference of opinion from the enquiry report of exoneration. The order of the District Magistrate dated 2.9.2009 vide letter No.369 setting aside the punishment dated 8.4.2001 was superfluous in nature. Euphemistically speaking, the District Magistrate was seeking to kill an order already set aside by the appellate authority. The petitioner has chosen not to bring on record the second show cause notice issued to him simultaneously, based on the order of remand by the appellate authority. He is stated to have replied to the same also. There shall be a presumption under Section- 114(e) of the Indian Evidence Act that Governmental authorities, especially when exercising statutory powers, have acted in accordance with law. The presumption is rebuttable. It was for the petitioner to place materials to - 4 - rebut the presumption. The petitioner has chosen to withhold materials rather than place the relevant materials before the Court. This Court proceeds on the assumption that it was a proper second show cause notice containing grounds for a difference of opinion with the report of exoneration in accordance with the orders of the appellate authority. This Court therefore finds no infirmity in the procedure adopted warranting any interference with the order of punishment dated 29.1.2010. The writ application is dismissed. KC ( Navin Sinha, J.)