Patna High Court CWJC No.9157 of 2010 (4) dt.14-10-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9157 of 2010 ====================================================== Prantosh Kumar Das .... .... Petitioner/s Versus The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajesh Kumar Sinha 1 For the Respondent/s : Mr. (Gp20) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 4 14-10-2011 Heard learned counsel for the petitioner and the State. The petitioner, a Sub-divisional Police Officer in the State Police, is aggrieved by the order dated 2.3.2009 visiting him with the punishment of censure and stoppage of one increment with non-cumulative effect, as affirmed by the appellate authority on 7.12.2009. Learned counsel for the petitioner submits that charges were framed on 15.6.2007 and an enquiry officer appointed. An enquiry report followed leading to a second show cause duly replied, whereafter the order of punishment was passed. It is submitted that the giving of a second show cause notice was not an empty formality but a valuable opportunity to the petitioner to defend himself once again. If the petitioner had submitted his reply it was required to be considered properly and the order of punishment was required to discuss even Patna High Court CWJC No.9157 of 2010 (4) dt.14-10-2011 briefly why the defence was not acceptable. It is next submitted that even an appellate order of affirmance though not required to be detailed nonetheless is required to display application of mind to the materials brought on record, the grounds taken in appeal so that the delinquent is left convinced that his case was duly considered. The appellate order is cryptic and non- speaking. Learned counsel for the State has urged that the punishment is minor. Once the petitioner has had adequate opportunity to defend himself, the Court may not interfere with the same. The procedures for a minor punishment and major punishment are different. A minor punishment only postulates the giving of a show cause notice, the submission of a reply followed by a reasoned order displaying consideration of the defence taken and the grounds for acceptance or rejection of the same. But, where the procedure for a major punishment has been followed, leading framing of charges, appointment of an enquiry officer, holding of a full fledged enquiry followed by a report, the giving of a second show cause notice, the submission of a reply to the same, issues become entirely different. Merely because at this stage the disciplinary authority may opine that the punishment proposed may be minor shall not deviate from the requirements of fairness to be complied with by the respondents. They cannot adopt procedures of their Patna High Court CWJC No.9157 of 2010 (4) dt.14-10-2011 choice by a mix for that of minor and major penalties. If charges were framed and an enquiry held, that was the first phase. If enquiry report finds him guilty the disciplinary authority then gives a second show cause notice. That was the commencement of the second stage where the delinquent again had an opportunity to convince the disciplinary authority not to accept the enquiry report or to point out the deficiencies in the enquiry with regard to evidence or lack of evidence. Therefore, giving of a second show cause notice was not an empty or a useless formality especially where the charge is denied. The disciplinary authority was not required to write a detailed and lengthy order considering each objection taken in reply to the second show cause. Nonetheless, he was required to display application of mind in his order to the grounds of defence taken by the petitioner and briefly indicate reasons why the same were not acceptable. The impugned order dated 2.3.2009 simply states that the enquiry officer had found the charges proved and therefore after due consideration it had been decided to impose the specified punishments. There is absolutely no reference even to the reply filed much less the defence taken by the petitioner before the disciplinary authority and why it was not acceptable. The impugned order dated 2.3.2009 proceeds on the premise that the reply to the second show cause notice was not required to be taken into consideration. It has already been noticed that Patna High Court CWJC No.9157 of 2010 (4) dt.14-10-2011 there is no reference to the same even. If the enquiry report was to be accepted and his objections to the same were not found acceptable he stood to lose. Therefore he had a right to know why he stands to lose. It is not the absolute privilege of the respondents to hold that his defence was not acceptable. It was their duty to tell him why his defence was not acceptable. Without reasons for the same the order dated 2.3.2009 on the face of it becomes arbitrary and unsustainable. If that was not enough, learned counsel for the petitioner rightly contended that even an appellate order of affirmance is required to be speaking in nature briefly indicating why the grounds taken in the memo of appeal vis-à-vis enquiry report was not acceptable. The impugned orders dated 2.3.2009 and 7.12.2009 are unsustainable and are accordingly set aside. No useful purpose is going to be served by remanding matters to the appellate authority in light of the discussion contained in the present order. The matter has to be remanded to the disciplinary authority to proceed afresh from the stage after submission of reply by the petitioner to the second show cause notice and pass fresh appropriate reasoned and speaking order in accordance with law. Remedy of an appeal, if aggrieved, shall lie for the petitioner before the authority concerned. The writ application is allowed. Krishna Chandra Jha/- (Navin Sinha, J)