IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11689 of 2009 KISHORI LAL Versus THE STATE OF BIHAR & ORS ----------- 3. 30.10.2009 Heard learned counsel for the petitioner and the State. The petitioner was proceeded with departmentally when memo of charges were served in 1984 on allegations with regard to short-supply in purchase of brick tiles when full payment was released, acceptance of inferior quality valves and illegal issuance of approximately six hundred bags of cement from the store. Final order of punishment was passed affirmed by the appellate authority on 26.8.1996. The petitioner superannuated from service on 31.10.1990. He had questioned his orders of punishment of stoppage of five increments with cumulative effect, censure, stoppage of promotion for five years, recovery of the amount in question, nothing beyond subsistence allowance would be payable in CWJC No. 9070 of 1997. It was contended that the first departmental enquiry was based on a preliminary enquiry which formed the basis of memo of charge. This Court noticed the submission that the first departmental enquiry was based on preliminary enquiry, which was ex parte in nature, copy whereof was not given. The findings of the Inquiry Officer were based on preliminary enquiry report. During departmental proceedings, no personal hearing was given; 2 prosecution witnesses were examined behind his back and, therefore, he was not made aware of the date of the departmental proceedings. Valuable right to cross-examine the witness was, thus, denied. Before imposition of punishment, no copy of the enquiry report was given. In the second departmental proceeding also personal hearing was denied, prosecution witnesses examined behind the back denying cross-examination and likewise no copy of the enquiry report given with the show cause notice. The appellate order was non-speaking and cryptic. This Court noticed the dispute with regard to non- supply of preliminary enquiry report and on which findings of the Inquiry Officer was based. Serious allegations of procedural irregularities vitiated the departmental enquiry were also noticed apart from non-supply of the enquiry report and absence of second show cause notice in addition to the appellate order being cryptic and non-speaking. The counter affidavit had only taken the stand that the preliminary enquiry report was made available and other objections of procedural irregularities are being raised before this court when no such objection was taken before the Inquiry Officer. This court by its judgment and order dated 29.11.2007 set aside the order of punishment dated 25.8.1985/30.1.1990 and appellate order dated 26.8.1996 and remanded the matter to the disciplinary authority to decide the matter afresh in light of the nature of the controversy and materials 3 noticed in the order. Learned counsel for the petitioner submitted that even fresh orders by the disciplinary authority in both the proceedings dated 19.11.2008 and 21.11.2008 suffers from the same infirmities as noticed by this Court earlier and are non- speaking in nature. Learned counsel for the State contended that the orders show that the second show cause notice was issued to the petitioner along with a copy of the enquiry report and only thereafter the fresh orders have been passed. Therefore, there has been full compliance with the procedures and the impugned orders warrant no interference. No detail reasons were required when the appellate authority was not inclined to take any different view from that taken earlier. This Court in CWJC No. 9070 of 1997 after consideration of the case of the petitioner and that of the Respondents in their counter affidavit was prima facie satisfied of the serious procedural lapses in conduct of the departmental proceedings and non-supply of the second show cause notice along with enquiry report was also one of the lapses but not the only lapse. For that reason, the matter was remanded to the disciplinary authority to re-determine, if other procedural lapses with regard to the non-supply of the preliminary enquiry report, examination of witnesses behind the back of the petitioner, denial of right to cross-examination etc. were correct or not. Merely that the second show cause notice may have been now given along 4 with the inquiry report would not satisfy fulfilment of the aforesaid procedural irregularities at stage prior to the same. The appellate order of affirmance though may not require detailed reasoning, yet it is required to display application of mind by a discussion, albeit brief, of the materials, defence and conclusion. Earlier, this Court found fault not only with the departmental proceedings but with the appellate order also. The matter was remanded to the disciplinary authority to proceed afresh from the stage of completion of the enquiry. The mere act of furnishing of a second show cause notice along with inquiry report, after remand, did not obviate the need for the appellate authority to consider and deal with the objections of gross procedural irregularity in the departmental proceedings. The earlier appellate order having been set aside remained no more in existence and the matter cannot be given a short shrift by the appellate authority to contend that there was no reason to take any different view. The impugned orders being non-speaking are clearly not sustainable in law. In normal circumstances, this court would have been required to set aside the order of punishment and remand the matter to the authority. But this is not an universal rule applicable under all circumstances. This Court on the previous occasion did set aside the orders and remand the same to enable the authorities to rectify/remove the procedural irregularities committed by them. If despite a reasoned and discussed order of the Court, the authority insists on acting in a manner of their choice unconcerned 5 with their obligations in law as held by the court, this Court has little option but to set aside the order. At this stage to remand the matter shall not only be giving premium and advantage to the Respondents for their own lapses but shall also be burdening the petitioner with unnecessary complications in the evening of his life when he is stated to have retired as far back 31.10.1990 and shall be approximately 79-80 years old. The Respondents are alone to be blamed for the nature of the orders. The impugned orders dated 19.11.2008 and 21.11.2008 being in teeth of the order of this court in CWJC No.9070 of 1997 are not sustainable. They are accordingly set aside. The Respondents are directed to make available all consequential monetary benefits to the petitioner including revision of his retiral dues accordingly within a maximum period of four months from the date of receipt and/or production of a copy of this order. The order of punishment in so far as it directs recovery is also set aside. As the petitioner has retired, the order withholding promotion, imposing censure etc. lose their relevance and warrant no adjudication. The writ application stands allowed to the extent indicated above. AKS/ (Navin Sinha, J.)