IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4135 of 2004 LAKSHMAN SINGH Son of Late Deo Nandan Singh Resident of Village Kosiar, P.S. Chawari (Sahar), District Bhojpur. Versus 1.THE STATE OF BIHAR through Home Secretary, Govt. of Bihar, Old Secretariat, Patna. 2.The Director General Cum Inspector General of Police, Bihar, Old Secretariat, Patna. 3.The Deputy Inspector General of Rail Police, Bihar, Patna. 4.Superintendent of Rail Police, Katihar. ----------- 3 24/8/2009 Heard counsel for the petitioner and counsel for the State. Prayer in this writ application is for quashing the order of punishment and its affirmance by the appellate order as contained in Annexures 3 and 5, the order dated 31st July, 2003 and 7.1.2004 respectively. Learned counsel for the petitioner would submit that after the enquiry officer had exonerated the petitioner, the disciplinary authority of course while differing with such findings could also inflict punishment on him, but then procedure known to law, i.e, giving at least an opportunity of show cause as to why the enquiry officer’s report in favour of the petitioner should not be accepted as also the reasons for such difference of opinion by the disciplinary authority had to be communicated to the petitioner. It is however the case of the petitioner as is manifest from reading of the impugned order itself that no such procedure was followed and the disciplinary authority having received the enquiry report had straight way proceeded to pass an order of punishment against the 2 petitioner. Counsel, therefore, would submit that the impugned order of punishment is definitely in violation of principles of natural justice as also the law well settled in this respect as has been held in the case of ‘Punjab National Bank & Ors Vs. Kunj Behari Mishra’ reported in 1998 (7) SCC 84. Learned S.C.1, on the other hand, would submit that there was no question of following the entire procedure of departmental proceeding because for such minor punishment a show cause notice itself was enough. In the opinion of this Court, such submission of the learned counsel for the State cannot be accepted, as the Constitution Bench of the Apex Court in the case of ‘Managing Director, ECIL, Hydrabad & Ors Vs. B. Karunakar & Ors.’ reported in 1993 (4) SCC 727 has already held that even if a minor punishment is awarded in a matter arising out of the departmental proceeding, not only enquiry report has to be supplied to the delinquent but entire procedure of such departmental proceeding has to be followed. In this case admittedly a regular departmental proceeding was held and after adducing evidence the enquiry officer had submitted his enquiry report exonerating the petitioner. In that view of the matter, if the disciplinary authority, the Superintendent of Police, was of the view that the charges stood proved, he had to issue a show cause notice to the petitioner disclosing reasons for such difference of opinion. That having 3 been not done in the case of the petitioner, the impugned order of punishment must be held to be bad. As a matter of fact when this aspect of the matter was again reiterated in the appeal filed by the petitioner, the appellate authority, also failed to consider the matter the same and he in a very cryptic manner has rejected the appeal by affirming the order of punishment. Consequently the appellate order also is equally bad. In the opinion of this Court from the connected records and materials collected in course of departmental enquiry it would be found that there were three applications filed by the petitioner after expiry of original period of leave obtained by him as contained in Annexures- A, B and C to the counter affidavit. It is true that in none of those three applications any order for allowing grant of leave was passed and therefore the petitioner could not have take a plea of remaining absent from duty on that ground, but then the enquiry officer had considered those circumstances to be good enough for exonerating the petitioner by holding that at least the petitioner had admittedly informed the authority about his inability in attending the duty. The plea of prior information given by the petitioner in the aforesaid three applications was considered by the disciplinary authority, but then the impugned order, in fact, does not take into account the contents of the application as contained in Annexures A and B and considers only the application as contained in Annexure-C, i.e, the 4 last application. From all these aspects of the matter this Court is satisfied that the petitioner was not given a fair deal while being inflicted with the punishment and its being affirmed by the appellate order. That being so, the impugned orders as contained in Annexures- 3 and 5 are quashed and the matter is remitted back to the disciplinary authority, the Superintendent of Police, who would go through the records of the departmental proceeding and the enquiry and if he would find it necessary to proceed against the petitioner, he will issue a show cause notice to the petitioner disclosing reasons for such difference of opinion with the enquiry report. The petitioner will have an opportunity to submit his reply, whereafter, final order would be passed by the disciplinary authority. It goes without saying that if the petitioner is aggrieved by order of the disciplinary authority, he will have remedy of appeal as was availed by him on the earlier occasion. On the other hand, if the Superintendent of Police would find that the petitioner has already suffered for the last seven years on account of departmental proceeding and the matter can be closed by forfeiting his salary for the period he had been absent from duty without sanctioned leave he would pass an order reinstating the petitioner in service with no back wages. Such a decision against the petitioner must be taken within a period of six months from the date of receipt/production of a copy of this order and till it is done 5 the petitioner will not be entitled for any monetary benefit as a consequence of quashing of the two impugned orders. With the aforementioned observations/directions this application is disposed of. Abhay Kumar (Mihir Kumar Jha, J.)