IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1005 of 2008 NIRAJ KUMAR RUKHAIYAR . Versus THE STATE OF BIHAR & ORS . ----------- 2/ 18/12/2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was proceeded against departmentally. An enquiry report of exoneration came to be submitted. He was issued a show cause notice on a difference of opinion to which he replied. Final orders of punishment were then passed on 09.10.2006 for stoppage of one increment with cumulative effect and a decision for the period of suspension shall be taken after conclusion of the criminal proceedings. His appeal against the same has also been rejected on 07.06.2007. No allegations have been made of any impropriety in the departmental proceedings or in the second show cause notice. It has been contended that his reply to the show cause notice based on difference of opinion, has not been properly considered. The second show cause notice for difference of opinion was on two grounds. (A) the failure of the petitioner to take any steps in the matter after receipt 2 of the inspection report and to which he has not replied; (B) his failure to take appropriate steps for placement of the original records while he kept insisting for inspection on the basis of a re- constructed record. This Court has gone through the reply to the second show cause notice on a difference of opinion submitted by the petitioner at Annexure-8 to the writ application. On going through the same this Court finds that on both grounds mentioned in the reply the petitioner has not denied the charge but has tried to offer an explanation to justify the issues as a matter of fact. In a departmental proceeding findings are arrived at on preponderance of probabilities. Once a second show cause notice was given to him in accordance with law and he filed his reply to the same whereafter final order of punishment has been passed the recital in the final order that his explanation was not acceptable is sufficient compliance. This Court does not concur with the submission of the petitioner that the respondents were obliged to deal with the reply and answer each point. It would depend on the nature of the charges. Where technical and highly complex issues may be involved 3 or the facts be seriously in dispute the position may be entirely different. Presently once the delay has been admitted and no infirmity in the proceedings have been pointed out, this Court finds it difficult to interfere. The contention that the appellate order is non-speaking does not appeal to the Court. Reliance upon a Division Bench decision reported in 2000(3) P.L.J.R. 64 (Chandradip Sinha vs. the State of Bihar & Ors.) is misconceived. It dealt with a case of minor punishment imposed after a show cause notice when the punishment order itself was not speaking in nature. In any event the appellate order is not non- speaking. Being an order of affirmance, the Court holds the discussion in the appellate order sufficiently displays application of independent mind by the appellate authority. Interference by courts for procedural non- compliance has now been circumscribed by the theory of prejudice and the useless formality theory. If the procedural non-compliance that the petitioner alleges satisfies the court that it has prejudiced him and that some aspect of the matter has not been considered, it will be an entirely different issue. But where there is 4 no procedural infirmity in the proceedings and the appellate order is one of affirmance, the petitioner cannot be stated to have been prejudiced in any manner. This Court has already held that the findings in a departmental proceeding are based on preponderance of probabilities. The impugned order clearly states that his explanation has not been considered acceptable which is, per se, evidence that the respondents have applied their mind to his defence. This Court is therefore satisfied that there is no occasion to interfere with the impugned order of punishment or the appellate order on either of the grounds, as urged on behalf of the petitioner. Insofar as the claim for subsistence allowance is concerned, now that the departmental proceedings have concluded, an appropriate decision with regard to the period that the petitioner was under suspension, is required to be taken by the respondents. This Court does not uphold the contention of the respondents to deny consideration with regard to the period of suspension till the conclusion of the criminal proceedings. Let the same be done in accordance with law within a maximum period of two months from the date 5 of receipt/production of a copy of this order. The writ application is allowed only to the extent indicated and dismissed on other issues. KC/ ( Navin Sinha, J.)