IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17889 of 2009 1. SHANKAR PRASAD SINGH S/O SRI RAM BACHAN SINGH, R/O AT & PO- KESHARI NAGAR, AJANTA COLONY, DISTT- PATNA-24 Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, GOVT. OF BIHAR, PATNA 3. THE DEPUTY SECRETARY (VIGILANCE) DEPARTMENT OF ROAD CONSTRUCTION, GOVT. OF BIHAR, PATNA ----------- 2. 10.3.2010 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 29.9.2009 visiting him with orders for recovery of Rs.1,13,898/- in five equal installments and stoppage of five increments with non-cumulative effect. The allegations against the petitioner along with one Anirudh Singh, the then Executive Engineer were the subject matter of consideration by the Lokayukta who by his report dated 7.8.2003 noticed adequately after hearing the petitioner and considering his defence to arrive at the conclusion that there had been excess payment. But the Lokayukta was unable to quantify the amount of excess payment and therefore opined that after quantification is done then the consequential amount be recovered from the guilty. In pursuance of the same a show cause notice was given to the petitioner on 28.7.2009 to which he 2 replied on 31.7.2009 whereafter the impugned order has been passed. Learned counsel submits that the order of the Lokayukta was in the nature of a recommendation, the last part of which left the issue of quantification of the excess payment made open for decision by the respondents. They were, therefore, required to arrive at a decision quantifying the excess payment and then disclose the basis of such quantification and thereafter fix liability on the petitioner and recover any amount or impose punishment. It is submitted that the show cause notice dated 28.7.2009/30.7.2009 is not in consonance with the recommendation of the Lokayukta. It does not contain any reasons on the basis of which the quantification had been done and on what basis the petitioner was being held liable to pay a sum of Rs. 1,13,898/- allegedly quantified as 1/3rd of the total excess payment of Rs. 3,41,693.92/-. It is submitted that if the petitioner had been furnished details of the quantification of excess payment, he may have had a defence to the same to urge whether the quantification itself was correct or incorrect based on which 1/3rd liability is sought to be imposed. If the show cause was itself bad, the punishment automatically collapses. Counsel for the State emphasizes that the 3 punishment was minor in nature. Once the petitioner acknowledges that a show cause notice had been issued to which he replied, after which orders of punishment have been passed, this Court should not interfere. It was next urged strenuously from Paragraph-8 of the cause shown by the petitioner that he has himself acknowledged his liability to pay 1/3rd of the quantified amount. The order of the Lokayukta was inconclusive. It fixed responsibility for excess payment but left quantification of the excess payment to be done by the authorities. The question presently is not whether the petitioner would or would not have a defence to the quantification done by the respondents. The question is of the fairness in procedure adopted by the respondents. Did they, in the show cause notice, disclosed the methodology on which they arrived at a particular figure for quantification of excess punishment and disclosed the materials or reasons for the same in the show cause notice ? The petitioner may or may not have had a defence. He could have explained that the quantification and the reasons for the quantification itself was bad. But if it was not disclosed in the show cause notice, the petitioner has clearly been denied an opportunity to put forth his 4 defence. This Court on reading Paragraph-8 of his reply to the show cause notice has no hesitation in holding that it does not amount to any admission by the petitioner that the quantum of excess payment was Rs. 3,41,693.92/- to fix liability at 1/3rd on him at Rs. 1,13,898/-. What the respondents appear to be doing is to read his reply to the show cause notice in a truncated manner culling out one line from the same, torn out of context and then urging that the petitioner has admitted his liability. This court holds that Paragraph-8 of his reply does not amount to any admission of the quantification but only that he was liable to pay 1/3rd of what be the quantification in accordance with law. In absence of any quantification done in accordance with law in the show cause notice, for reasons as discussed above, the order of punishment becomes unsustainable in law. The order of punishment dated 29.9.2009 is accordingly set aside. However, in view of the statement made by the petitioner in Paragraph-8 of his reply to the show cause notice, and that he has had a full opportunity to defend himself before the Lokayukta and the finding of the Lokayukta that there had been excess payment, the matter is remanded to the respondents to proceed 5 afresh in accordance with law from the stage of the recommendation of the Lokayukta. It is made clear that once the order of punishment has been set aside and the matter remanded, all issues are reopened also to be urged on behalf of the petitioner since a fresh show cause notice is required to be served upon him. The application stands allowed. P. Kumar (Navin Sinha, J.)