IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4859 of 2003 MD.JAMAL Versus THE STATE OF BIHAR & ORS ----------- 5/ 10/04/2009 Heard learned counsel for the petitioner, learned counsel for the Bihar State Housing Co-operative Federation and learned counsel for the State. On allegations of unauthorized absence, the petitioner was proceeded with departmentally. In the departmental proceeding he took the defence of his illness, suffering from Hepatitis-B. He produced medical evidence in support of the same including the certificate of the treating doctor. The enquiry officer was satisfied of the defence of the petitioner with regard to his illness and the medical evidence including the doctor’s certificate pressed in respect of the same. He did not disbelieve the defence of illness. However, he opined that the petitioner could certainly have his leave application submitted to the office in better appropriate manners rather than simply sending it by U.P.C. The enquiry officer did not disbelieve the sending of the leave application by U.P.C., but only opined that in absence of his having taken any other method for communication it becomes suspect. He, therefore, suggested that the petitioner be punished by 2 reduction of post from a driver to a peon and stoppage of one increment. The disciplinary authority issued him a second show cause notice that the charges stood proved. The petitioner gave his reply when the punishment of dismissal has followed. Learned counsel for the Housing Co-operative Federation submitted that there is no illegality in the procedure inasmuch as the petitioner makes no complaint against the departmental enquiry and he has been given adequate opportunity by issuance f a second show cause notice. The enquiry officer did not disbelieve the defence of the petitioner with regard to his illness and the evidence in support of the same. Had the authority disbelieved it and given a finding of guilt, the matter would have been entirely different. Even on the issue of the leave application, the enquiry officer did not disbelieve the submission of the same by the petitioner. Even while accepting that a communication was sent by U.P.C., the authority opined that the petitioner should have adopted other means of communication also. Thus, there was no finding of guilt to sustain an order of punishment. The disciplinary authority could have differed 3 with the enquiry report by setting out the tentative grounds for difference of opinion along with brief materials in support thereof. The issue of the petitioner having earlier also allegedly absented unauthorizedly could have been the subject matter of this second show cause notice given on 14.12.2002. Without following this procedure and holding the charges proved, the show cause was confined to the proposed punishment of termination. The petitioner submitted his reply when the order of punishment of termination has followed on 17.3.2003. This Court has already observed that there was no such finding of guilt by the enquiry officer. The second show cause notice issued by the disciplinary authority is vitiated for non-application of mind. Any subsequent order of punishment passed thereon is not sustainable. The past absence taken into consideration in the order of punishment without being the subject matter of the departmental proceeding or the second show cause notice is also not sustainable. The order dated 17.3.2003 of termination is set aside. The petitioner stands reinstated in service. This Court considers that as the enquiry officer did not disbelieve the defence and the respondent authorities resorted to a procedure completely contrary to 4 law and the writ petition having remained pending before this Court for six long years, justice shall be done to the petitioner if he is awarded 25% of his back-wages keeping in mind that he was holding the post of a driver. Since no issues of moral turpitude or defalcation causing monetary loss to the Government is involved, the Court is not persuaded to remand the matter to the disciplinary authority to commence afresh from submission of the enquiry report, considering the period of time for which the petitioner has already suffered harassment. The writ application stands allowed. KC (Navin Sinha, J.)