IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5144 of 2007 AWADH KISHORE PRASAD, son of late Harihar Prasad, resident of Mohalla Ganesh Gali, Bichali Khandak, Police Station Biharsharif town, District Nalana (Biharsharif). Versus 1. THE STATE OF BIHAR 2. The Director, Health Services, Government of Bihar, Patna. 3. The Civil Surgeon Cum Chief Medical Officer, Nalanda. 4. The Additional Chief Medical Officer, Nalanda. 5. The Incharge Medical Officer, Referal Hospital, Asthawan, Nalanda. 6. The Accountant General of Bihar, Patna. ----------- 2 23.09.2010 Having heard counsel for the parties as with regard to the following relief:- “That this is an application for issuance of a writ of certiorari for quashing of the order contained in memo no.1010, dated 16.3.2007 (Annexure-6) issued by respondent no.3, by which without assigning any reason, petitioner has been inflicted with two punishment i.e. (i)Warning and (ii) Stoppage of one increment with non cumulative effect for one year, even though the Enquiry Officer has fully exonerated the petitioner from the allegation (Annexure-2), and also for issuance of an order/ direction, direction/ commanding the respondents to allow the consequential benefits with interest to the petitioner, as if the impugned order has not been given effect and also to pay the difference of arrears of salary of the suspension period i.e. 15.7.2006 to 4.3.2007 and be further pleased to grant such other relief or reliefs to which petitioner is found entitled in the eyes of law.” and the admitted position that even when the petitioner was subjected to a departmental proceeding by memo of charge dated 15.7.2006 and the Enquiry Officer in his enquiry report dated 24.8.2006 had not found such charge to have been proved against him, the resultant order of punishment (Annexure-6) cannot be sustained, inasmuch as, the petitioner was never given an opportunity of hearing by way of communicating the difference 2 of opinion recorded by the disciplinary authority as against the favourable report of the Enquiry Officer. By now it is well settled that the disciplinary authority can always differ with the findings recorded by the Enquiry Officer, but then before doing so he has to give notice with the tentative reasons for differing with the enquiry report. Reliance in this connection may be made to the judgment of the Apex Court in the case of „Punjab National Bank & Ors Vs. Kunj Bihari Mishra’ reported in (1998) 7 SCC 84. In that view of the matter, this Court would quash the impugned order dated 16.3.2007 (Annexure-6) and remit the matter back to the Civil Surgeon, Nalanda, who would now proceed from the stage of submission of enquiry report and would give an opportunity of hearing to the petitioner by way of furnishing a show cause notice alongwith tentative reasons for differing with the enquiry report and upon receipt of such show cause notice the petitioner will file his reply within a period of one month, whereafter final decision will be taken keeping in view that the petitioner had already retired on 31.10.2008 and is said to have suffered with a dangerous disease like Blood Cancer. It goes without saying that since the departmental proceeding against the petitioner was initiated before his retirement and now the petitioner has already retired, if any order of punishment has to be passed, the same must be in conformity with the provisions of Rule 43 B of the Bihar Pension Rules. Such 3 exercise in this regard, therefore, must be completed by the Civil Surgeon of Nalanda district within a period of six months from the date of receipt/production of a copy of this order. Payment of any financial benefit to the petitioner will, however abide by the result of the order which would be passed by the authority in the remitted proceeding. With the aforementioned observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)