IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8469 of 2005. -- - - - - - - - - Krishna Chandra Pradhan son of late Lakshmi Pradhan, Resident of Ashoka Place, Exhibition Road, P.S. Gandhi Mainn District Patna ……….Petitioner. Vs. 1.The State of Bihar through the Secretary, Water Resources(Irrigation) Department, Sichai Bhawan, Patna. 2.The Joint Secretary, Water Resources (Irrigation) Department, Sichai Bhawan,Patna. 3.The Deputy Secretary, Water Resources (Irrigation) Department, Government of Bihar, Sichai Bhawan, Patna. 4.The Accountant General, Bihar, Birchand Patel Path, Patna, Bihar ………… ….. Respondents. 4. 01.07.2011 Heard learned counsel for the petitioner and the for the State. In this case, the petitioner has challenge the notification bearing No. 406 dated 2nd May 2005 passed by the Deputy Secretary, Water Resources (Irrigation) Department, Govt. of Bihar, contained in Annexure-18 whereby and whereunder it has been held that earlier punishment given to the petitioner vide notification No. 1282 dated 4th October 2002 has been confirmed. In the said order, penalty was awarded to the petitioner for recovery of Rs.1,60,000/- and the recovery was to be made @ Rs.5,000/- per month from his salary and that too, within the service period and the petitioner was further awarded punishment that he will not get anything, save and except the subsistence allowance for the period the petitioner remained under suspension. In this case, the petitioner was issued a charge-sheet for committing mistake stating that the petitioner while posted in the Division of Palamu as an Executive Engineer, had made a background for purchase of 200 chokes of sodium vapour lamp 250 watts and in pursuance thereof, the Committee decided to purchase the same which 2 was given in favour of M/s Sky Master, Cinema Road, Hajipur and also alleged different charges. In pursuance thereof a departmental proceeding was initiated and the enquiry report dated 13th December 1991, contained in Annexure-3, was submitted stating that the charges leveled against the petitioner were not found proved. Thereafter a second show cause was given to the petitioner without showing the reason and passed the order of punishment. The petitioner moved before this Court, vide C.W.J.C.No. 7535 of 1998 and this Court has remanded back the matter stating that the disciplinary authority has assigned no reason while differing with the enquiry report and, accordingly, the order of punishment was quashed. The Hon’ble single Judge passed the order in favour of the petitioner and remanded back the matter. The State of Bihar, being aggrieved by the said order, filed L.P.A. No. 98 of 2000 and this Court while refusing to entertain the L.P.A. had passed the following order: “In the present case, we are also of the view that the order of punishment cannot be sustained but on the ground different from what has been given by the learned single judge. Admittedly, the enquiry report was submitted in favour of the delinquent employee. On receipt of the enquiry report, if the disciplinary authority wanted to differ then he should have served upon the employee respondent proposed grounds of difference with a copy of the enquiry report before coming to the conclusion regarding guilt of the delinquent employee. From a perusal of Annexure-4 to the writ application, it appears that the disciplinary authority has given some reasons 3 and on the basis of the same conclusion regarding guilt has been arrived at and thereafter proposed the tentative punishment and asked the employee to show cause and thereafter passed final order of punishment. This approach on behalf of the appellant is contrary to the well settled law. Law in this regard is that if the disciplinary authority differs with the opinion/finding of the enquiry officer, then he should communicate the tentative grounds for difference to the delinquent employee along with copy of enquiry report and after giving him an opportunity of hearing, may arrive at the conclusion with regard to the guilt and punishment awarded in proof of the guilt. Reference in this connection may be made to the decision of the Supreme Court in Punjab National Bank Vs. Kunj Behari Mishra, AIRT 1998 SC 2713. As stated above, the said procedure has not been followed by the State in this case and accordingly the order of punishment is vitiated. As the order of punishment is being quashed on a technical ground, we are of the view that the matter has to be reconsidered by the appellant State in accordance with law. In other word s, the disciplinary authority should go through the enquiry report and in case if he decides to differ with the enquiry officer, then he will propose the tentative grounds for differing with the enquiry report on the materials on record and will serve a copy of the same on the delinquent employee and thereafter decide as to whether guilt has been proved or 4 not and will pass appropriate order in accordance with law. In the result, quasing of the impugned order by the learned single judge is upheld and the matter is remitted to the State authorities to consider the matter in the light of the observations made above”. In pursuance of the order, again a 2nd show cause notice was issued to the petitioner, vide Annexure-9 asking him to file the same so that the case again be considered. Later on, the petitioner was served point of difference, vide Anmnexure-11 dated 21st February 2010 in which grounds of difference were mentioned. In pursuance thereof the petitioner filed his 2nd show cause giving details of the facts and the grounds mentioned therein. The order of punishment was passed vide order No. 1282 dated 4th October 2002 (Annexure-13). The disciplinary authority committed the same mistake and did not discuss the case of the petitioner and the defence made therein. This order was again challenged before this Court by the petitioner in C.W.J.C.No. 10530 of 2003 and the matter was discussed vide order dated 26th September 2003 in which this Court quashed the order impugned and passed the following order: “Learned counsel for the State after going through Annexure-4 & Annexure-11 was unable to say anything, he virtually had to concede that Paragraph 3 of Annexure-4 and paragraph 2 of Annexure-11 are proposed findings and therefore, there is nothing wrong in the said Annexure-11. After hearing learned counsel for the parties, I must immediately record that the reasons given in Annexure-4 5 which were disapproved by this Court have been repeated verbatim in Annexure-11. Not only this, the last line in paragraph 2 of Annexure-11 records a finding that the petitioner has been found guilty. When this Court directed the Department first to issue a show cause notice along with the tentative grounds to dif fer and t hereafter record a finding into the delinquency of the delinquent officer then without giving a show caused notice, a finding into the misconduct of the petitioner could not be recorded. Annexure-11 shows non- application of mind and in fact records a finding on the subject in relation to which the show cause notice itself was issued. Annexure-11 is bad, it deserves to and is accordingly quashed. As cons3quence to that, Annexure-13 is also quashed. The respondents are hereby directed to adhere to the directions issued by this court in L.P.A.No. 98 of 2000 and proceed in accordance with law. The petition is allowed to the extent indicated above” In the order it has been specifically mentioned that the disciplinary authority was required to first issue a show cause notice with tentative grounds of differing and thereafter record the finding into the delinquency of the delinquent also and without giving this notice, the finding of misconduct of the petitioner cannot be recorded and the order of punishment was passed and the same was quashed. The disciplinary authority again vide letter No. 667 dated 3rd September 2004 sent the 2nd shows cause vide Annexure-16 and the point of difference was mentioned as follows: 6 (a) The documents produced by the department to prove the charges leveled against Sri Pradhan was not considered at all. (b) The indent dated 11.11.87 whereby Sri Pradhan issued indent without following the procedure for issuance of emergent indent. (c) Sri Pradhan having full knowledge about the availability of choke in the store issued emergent indent for purchase of chokes were available in the store of the department. From the record it is apparent that one Ishrar Ahmad proprietor of Sky Master fir filed an application addressed to Sub-Inspector, Cabinet Vigilance stating therein that fake tenders were submitted on behalf of his firm namely, Sky-Master under the signature of one Shri Ohm Prakash who is not known to Mr.Ishrar Ahmad which clearly indicates that Sri Pradhan (delinquent officer) in a planned way placed order to fake person and received the materials i.e. chokes from the fake person putting the State Govt. in huge loss and also violated the established procedure for issuing emergent indent and received the artic les from the fake person under a conspiracy for his personal gain. Sri Pradhan was aware of about the store position of the choke knowing well that there was no need to issuing emergent tender and getting supply of chokes from fake person and put the department in hug e loss for his personal gain. d) From the record it appears that the matter concerning illegal purchaser of choke was referred to the officer 7 in-charge Vigilance Police Station, Patna. Thereafter the matter was investigated in detail and a preliminary investigation report was submitted under the signature of Sri J.K.Khanna, Superintendent of Police, Cabinet Vigilance. On the basis of aforesaid preliminary report dated 16.11.90, Vigilance Case No. 51 dated 16.11.90 under Section 420, 467, 468, 471, 477A and 120B, 109 IPC and Section 5(2) 5(1) C.B,P.C. Act 1947 corresponding section 13(2)/13(1)(B) P.C.Act 1988 was registered and investigation started against Sri Pradhan. e) From the materials on record it further transpires that Sri Pradhan purchased the choke of about Rs.5,50,295/- on a much higher rate for his personal gain putting the Stage Govt. in huge loss. f) It further appears that Srti Pradhan issued supply orders and received the articles from a fake person who was not a registered contractor. It further appears from the materials on record that Sri Pradhan got a Bank Draft of Rs.5,50,295/- prepared in the name of Mr.Ohm Prakash, who was not the proprietor of the firm namely, Sky Master Cinema Road, Hazipur and the Bank draft was made payable at Patna which further corroborates the misconduct and dishonest act of the delinquent employee. g) From the materials on record it further appears that Sri Pradhan purchased 200 chokes from sodium vapour lamps in the month of April 1988 but upto 30th December 1988 only one choke was utilized and thereafter upto 12.10.90 only 8 54 chokes were utilized and the rest chokes were lying in the store which clearly indicate s t hat there was no need for purchasing 200 chokes by issuing emergent tender. h) It further appears from the record that in the relevant period the market rate of choke was Rs.800/- per choke whereas Sri Pradhan purchased 200 chokes at the rate of Rs.2500/- each in the year 1988 for his personal gain putting the State Govt. In huge loss. The above difference in the price of choke w as also mentioned in the show cause reply dated 29.4.2000 submitted by the delinquent employee.” On receipt of the same, the petitioner filed his show cause giving details of the fact and vide Annexure-17 in which he again gave his defence and also stated that he has not committed any misconduct and the point of difference shown by the disciplinary authority is not sustainable in the eye of law. The disciplinary authority passed the order of punishment vide order under Memo No. 406 dated 2nd May 2005 contained in Annexure-18 and again committed the same mistake as the misconducts have been mentioned in the order but the defence of the petitioner has not been dealt with and by giving the only 2-line statement, without discussing as to why the grounds mentioned in the explanation filed by the petitioner is not acceptable to the disciplinary authority, passed the order. The order is completely non-speaking and does not disclose the mind of the disciplinary authority. It has repeatedly been stated by this Court and the Hon’ble Supreme Court that while passing the order, reason in support of the 9 order must be there. Recording the reason is sine qua non while exercising the quasi judicial proceeding. It has been stated that the reasons are link between the mind of decision maker and the controversy in question as also the decision or the conclusion arrived at. In the case of Maya Devi. Vs. Raj Kumari Batra reported in (2010)9 SCC 486 the Hon’ble Supreme Court held as follows: “The juristic basis underlying the requirement that courts and in deed all such authorities, as exercise the power to determine the rights and obligations of individuals must give reasons in support of their orders has been examined in a long line of decisions rendered by this court. In Hindustan Times Ltd. v. Union of India, the need to give reasons has been held to arise out of the need to minimize chances of arbitrariness and induce clarity. In Arun v. Inspector General of Police, the recording of reasons in support of the order passed by the High Court has been held to inspire public confidence in administration of justice, and help the Apex Court to dispose of appeals filed against such orders. In Union of India v. Jai Prakash Singh, reasons were held to be live links between the mind of the decision-maker and the controversy in question as also the decision or conclusion arrived at. In Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, reasons were held to be the heartbeat of every conclusion, apart from being an essential feature of the 10 principles of natural justice, that ensure transparency and fairness, in the decision-making process. In Ram Phal v. State of Haryana, giving of satisfactory reasons was held to be a requirement arising out of an ordinary man’s sense of justice and a healthy discipline for all those who exercise power over others.” In another case of Union of India Vs. Jai Prakash Singh, reported in (2007)10 SCC 712 the Hon’ble Supreme Court held as under: “The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. V. Crabtree it was observed: “Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at’. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx’, it can, by its silence render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The “inscrutable face of a sphinx” is 11 ordinarily incongruous with judicial or quasi judicial performance.” In the case of S.N.Mukherjee V. Union of India reported in AIR 1990 SC 1984 the Hon’ble Supreme Court while deciding an issue has stated that the people must have a confidence in the judicial and quasi judicial proceeding. Unless the reasons are disclosed, how can a person know whether the authority has applied its mind or not ? Also, giving of reasons minimizes chances of arbitrariness. Hence it is an essential requirement of rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi judicial order, even if it is an order of affirmation. In this background, even after repeated demand, the authority failed to exercise the jurisdiction as per law of the land. In this view of the matter, the order of punishment dated 2nd May 2005 (Annexure-18) is quashed and the matter is remanded back to pass the order afresh in accordance with law. Before parting with the judgment, I must also rely on the judgment of this Court passed in C.W.J.C.No. 9197 of 2002 (Indradeo Narayan Singh Vs. The State of Bihar) wherein in a similar facts and circumstances, this Court has quashed the order impugned. The petitioner has also brought on record one order vide letter no.137 dated 29.7.09 and has drawn my attention that the authorities have passed the order pursuant to the order passed in C.W.J./C.No.9197 of 2002 and thereby authorities have decided not to proceed with the matter. In such a circumstance the authorities are directed to complete the exercise within 3 months from the date of receipt/production of copy of this order and while passing the order, the disciplinary authority will 12 consider the facts of present case. The petitioner will have the liberty to raise all t he points in his 2nd show cause. However, this Court has not given opinion on the merit of the case. With the above observations, the writ petition is allowed to the extent as aforesaid. Jay/ ( Shivaji Pandey,J.)