IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2689 of 2010 1. SURYA NATH PATHAK S/O LATE SATYA NARAIN PATHAK R/O CHHOTE BADALPUR, P.S.- KHAGAUL, DISTT.- PATNA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, ROAD CONSTRUCTION DEPTT. GOVT. OF BIHAR, PATNA 3. THE JOINT SECRETARY, ROAD CONSTRUCTION DEPTT. GOVT. OF BIHAR, PATNA 4. THE DEPUTY SECRETARY (VIGILANCE), ROAD CONSTRUCTION DEPTT. GOVT. OF BIHAR, PATNA ----------- 02. 26.08.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order of punishment dated 22.10.2009 which visits him with the punishment of 10% reduction of pension for five years and 5% reduction thereafter and that nothing beyond subsistence allowance was payable for the period of suspension which would otherwise count for pensionary service. It is submitted that the petitioner was subjected to departmental proceedings. A enquiry report dated 8.6.2001 was submitted exonerating him of all the four charges. The proceedings initiated during the service tenure was converted to Section 43(b) of the Bihar Pension Rules after superannuation and a fresh order for de novo enquiry passed on 19.1.2002 without issuing any notice for difference of opinion, with the report of exoneration along with tentative reasons for such difference of opinion. A fresh enquiry report then came to 2 be submitted indicting him on charge no.2 and partially on charges 3 and 4, exonerating him of charge no.1. A second show cause notice followed on 7.12.2005, replied by the petitioner on 7.1.2006. The impugned order has been passed thereafter. Counter affidavit has been filed on behalf of respondents. Though the learned senior counsel for the petitioner sought to persuade this Court to assail the order for a de novo inquiry after the submission of the first enquiry report as being contrary to the law without taking steps for notice on any difference of opinion and counsel for the respondents urged that once the petitioner participated in the fresh enquiry, it was not open for him to question the fresh enquiry report, this Court does not consider it necessary to decide those issues at this stage as the writ application can be disposed off on another ground. The aforesaid submissions are therefore left open for consideration in its entirety at a subsequent stage, if necessary. The petitioner in his reply to the second show cause notice specifically took the ground that as the Executive Engineer (District Engineer) he was proceeded along with one Satayendra Yadav, the then Junior Engineer. The latter has been exonerated of the charges, 3 in a departmental proceeding and his period of suspension has been treated on duty and the entire salary also paid. The final order of punishment passed after consideration of his reply to the second show cause notice only states that his show cause had been considered. The petitioner has specifically asserted the fact of exoneration of co-delinquent in paragraphs 39 and 41 of the writ application. The respondents in their counter affidavit have not denied this fact that the co- delinquent was proceeded with on the same charges was likewise subjected to a departmental proceeding and has been exonerated while dealing the same in paragraphs 13 and 14 of their reply affidavit. Learned counsel for the petitioner relies upon a Division Bench judgment reported in 2009 (1) PLJR 187 (The State of Bihar & Others Versus Yogendra Singh) to urge that different punishment to common co-delinquent is not justified in law. Each step in a departmental proceeding has its own relevance and importance. There can be no generalized yardstick to urge no prejudice due to violation of a particular procedure. The giving of second show cause notice and consideration of the final reply thereto is not an empty formality, certainly not in case of the present nature. The manner in which the disciplinary 4 authority has chosen to deal with reply to the second show cause notice and arrogate unto itself powers which the law does not vest with it leaves the Court with no option but to quash the order of punishment dated 22.10.2009 without prejudice to the rights of the respondents. In 2008 (12) SCC 331 (Man Singh Versus State of Haryana And Others) it has been held at paragraph-20 as follows:- “20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is not turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.” The order of punishment dated 22.10.2009 is hereby quashed. The writ application stands allowed. P.K. (Navin Sinha, J.)