IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.295 of 2008 Suresh Prasad Singh, son of Late Bahadur Singh, resident of Rajapur, P.S. Sri Krishnapuri, District and Town-Patna .. Petitioner-Appellant Versus 1. Bihar State Cooperative Marketing Union Ltd., through its Administrator, Biscomaun Bhawan, South Gandhi Maidan, Patna 2. Administrator, Bihar State Cooperative Marketing Union Ltd., Biscomaun Bhawan, South Gandhi Maidan, Patna 3. Chief of Engineering Service, Bihar State Cooperative Marketing Union Ltd., Biscomaun Bhawan, Gandhi Maidan, Patna 4. The Financial Controller, Bihar State Cooperative Marketing Union Ltd., Biscomaun Bhawan, Gandhi Maidan, Patna … Respondents-Respondents ----------- 9 05.08.2011 The present appeal has been filed against the order dated 14.03.2008 passed in C.W.J.C. No. 2612 of 2001. The appellant being the petitioner has chosen to question Annexure-1 i.e. the order of punishment on the ground that no appropriate reasons have been adduced in Annexure-9, the show cause, issued by the respondent-Bihar State Co- operative Marketing Union Limited (hereinafter referred to as BISCOMAUN) which brings with the findings of the enquiry officer. The appellant was the Assistant Project Manager in BISCOMAUN and he was issued a show cause notice on 27.09.1992. 2 The petitioner-appellant herein submitted his reply to the show cause on 28.09.1992. On 13.10.1992, the Executive Director, BISCOMAUN and Deputy Managing Director, BISCOMAUN examined the reply to the show cause notice and found the reply satisfactory and the charges which had been alleged against the petitioner-appellant herein were not proved. Thereafter, the matter was again sent to the Deputy Commissioner, Deoghar for proper instructions. On 22.10.1992, the petitioner-appellant herein was placed under suspension for certain charges. The finding of the Deputy Commissioner was that appropriate disciplinary proceedings have to be taken against all the persons who were posted during the construction work of the plant. The construction work of the plant was completed in the year 1992. On 04.12.1992, a charge-sheet was issued to the petitioner-appellant herein by respondent-BISCOMAUN along with the report of the Deputy Commissioner. The Chief of Agriculture Marketing was appointed as Enquiry Officer. BISCOUMAN has lodged the 3 F.I.R. against the petitioner along with other persons relating to certain financial irregularities said to have been committed by petitioner-appellant herein and other persons. On 09.08.1993, the petitioner- appellant herein submitted his reply to the show cause stating therein that the period for which the charges are related he was not posted there at the relevant time. An enquiry was conducted by the enquiry officer and final report was submitted on 25.08.1995 and the petitioner-appellant herein was exonerated from all the seven charges out of eight charges by the enquiry officer. In respect of charge no.1 i.e., the loss of Rs. 3,09,166.00/- was caused in the factory where petitioner-appellant herein was controlling officer. The enquiry officer has indicated that loss to BISCOMAUN could have been caused by his act of omission of several persons and hence the liability of individual employee may have to be fixed by the Managing Director with the help of experts. It has also been held by the enquiry officer that the 4 delinquent employee cannot be singly held responsible. But however, as BISCOMAUN has lodged a complaint against eleven others, the decision cannot be arrived at after the police verification and therefore, it is stated by the enquiry officer that it will be premature to come to a conclusion at the present stage. Differing with such finding, a second show cause was issued to the petitioner-appellant herein. Meanwhile, the appellant has come to this Court by filing a writ petition being C.W.J.C no. 5634 of 1999 on 10.06.1999 against the order of BISCOMAUN holding the appellant guilty and directed him to deposit Rs. 1,50,000/- (Rs. One Lac Fifty Thousand). The said writ petition, i.e., C.W.J.C. No.5634 of 1999 was disposed of by this Court on 02.07.1999 by directing BISCOMAUN to pay subsistence allowance to the petitioner-appellant herein on month to month basis from the month of July 1999 onwards and thereafter the entire arrears of subsistence allowance must be paid to the appellant within three months and the order dated 10.06.1999 5 contained in Annexure-3 was also quashed by this Court on 06.04.2000. Subsequent to that order the appellant seems to submit his joining on 08.05.2000 and his joining was accepted by the office on 13.06.2000 with effect from 08.05.2000. On 18.08.2000, thereafter, a second show cause was also issued to the petitioner-appellant herein i.e. Annexure-9 to the L.P.A. indicating that the petitioner-appellant herein being the controlling officer is responsible for the loss caused to BISCOMOUN to the tune of Rs. 3,09,166.00/-. On 02.09.2000, the petitioner-appellant herein seems to have submitted his reply to the show cause seeking reasons for not agreeing with the findings of the enquiry officer. But however, Annexure-11 to the L.P.A. was issued by BISCOMOUN directing the appellant to submit his report on 24.10.2000. The petitioner-appellant herein submitted his reply and he was awarded with punishments. Annexure-1 was passed by the disciplinary authority awarding the punishment of cost to the tune of Rs. 3,09,166.00/- for irregularities which is said to have been 6 committed by the petitioner-appellant herein and secondly, he was not entitled to get anything except amount of subsistence allowance for the suspension period. The same was questioned in the writ petition. It was contended before the learned Single Judge by the appellant-writ petitioner that no reasons have been adduced by the disciplinary authority for not agreeing with the findings of the enquiry officer. So far as the charges no.1 indicating that it is premature for holding the appellant responsible when there is joint receipts in proof of the allegation of all the officers against whom the police complaint was lodged by BISCOMAUN although, the enquiry officer has exonerated the appellant against other seven charges. The disciplinary authority has not agreeing with such finding of the enquiry officer that the delinquent officer cannot be held responsible and therefore, they have issued a second show cause dated 18.08.2000, Annexure-9 to the L.P.A. and when the petitioner-appellant herein has chosen to seek reason as to how the enquiry report is 7 not acceptable, Annexure-11 was issued on 24.10.2000 directing him to submit reply to Annexure-9. Even the contention sought to be raised before the learned Single Judge that no reasons are forthcoming for differing with the findings of the enquiry officer holding that it is premature to come to the conclusion that delinquent officer is responsible for the loss caused for which the respondent did not give any reply except issuing Annexure-9. But however, the learned Single Judge having gone into merits of the case has held that from combined reading of Annexures 9 and 11, it would indicate that for the reasons forthcoming from respondent-BISCOMAUN there cannot be any grievance to the appellant to putforth his case on the basis of non- mentioning of the reasons by the disciplinary authority. Holding so the learned Single Judge dismissed the writ petition. Hence, the present appeal. It is vehemently contended by learned counsel appearing for the appellant that by combined reading of Anexures 9 and 11, it would not indicate that any reason 8 is given which would make liable to the delinquent officer for causing loss to the tune of Rs. 3,09,166.00/-. Without proper appreciation of the reasons, the appellant was not inclined to reply to the show cause, so that BISCOMAUN would come to the conclusion and imposed punishment as indicated in the order of punishment. It has also been contended that as reasons are not indicated, therefore, in absence of any reasons comingforth in Annexures 9 and 11, it cannot be presumed that the disciplinary authority was differing with the findings of the enquiry officer. It has been contended that BISCOMAUN lodged a complaint against 11 persons which is still pending. An enquiry has been held by the enquiry officer and the report of the enquiry officer holding responsibility on the delinquent officer is still premature as BISCOMAUN come to the conclusion that the appellant is responsible without giving any reasons. Learned counsel has drawn our attention to a judgment rendered in the case of State of Rajasthan vs M.C. Sazena reported in AIR 1998 SCC 1150. The relevant 9 paragraph no.5 of the said judgment is quoted hereinbelow:- “The grievance of the delinquent government servant is based upon a thorough misconception about the rights of the government servant concerned. It is undisputed that the enquiring officer did not rely upon the FSL report on the ground that the procedure prescribed for taking sample have not been followed and therefore exonerated the delinquent government servant. But the disciplinary authority recorded reasons for disagreeing with the findings of the enquiry officer and held that the charges against the respondent has been established. It is well settled that the disciplinary authority can disagree with the findings arrived at by the enquiring officer and act upon his own conclusion, but the only requirement is that the said disciplinary authority must record reasons for his disagreement with the findings of the enquiry officer. If the disciplinary authority gives reasons for disagreeing with the findings of enquiring officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. In this view of the matter, the disciplinary authority was well within his powers to award punishment on the findings arrived at by him. We do not find any force in the submission of the learned counsel appearing for the delinquent government servant that before the disciplinary authority proceeds to award punishment, the delinquent government servant 10 should have been afforded a further opportunity of hearing. As it appears, the punishment of stopping two increments without cumulative effect is a minor punishment under CCA Rules. Then again the delinquent government servant filed review petition and State Government allowed the review petition and reduced the punishment to stoppage of one increment without cumulative effect. In such circumstances, the argument that there has been a gross violation of principle of natural justice is devoid of force. A set of charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiring officer having recorded his findings and thereafter the disciplinary authority having disagreed with the findings by recording the reasons therefore, and ultimately awarding minor punishment of stoppage of one increment without cumulative effect, there is no procedural irregularity therein nor can it be said that there has been any violation of principle of natural justice. Thus, the punishment imposed upon by the authority has rightly not been interfered with by the High Court.” But in this case a question would arise as to whether an opportunity of hearing is afforded before issuing show cause and imposing the punishment vide order dated 18.08.2000, Annexure-9 to the L.P.A. It is not a case where the 11 delinquent officer was afforded with an opportunity of hearing for the reasoning adduced by BISCOMAUN for which a request has been made for the controlling officer. It is not sufficient ground that they have lodged the complaint also against other eleven persons and the matter is still pending. In light of the above background, with regard to reasons, we are of the opinion that as per law laid down by the Apex Court, we are not in agreement with the contention raised by the respondent mainly the reasoning contained in Annexure- 9 along with Annexure-11 that as the appellant is the controlling officer he is responsible. This is not sufficient to differ with the opinion of the Enquiry Officer. There should be specific reason to hold the appellant guilty of misuse of amount of Rs. 3,09,166.00/-, as indicated by the Apex Court in the judgment reported in the AIR 1998 1150 holding that the disciplinary authority must indicate the reasons basing on the material available to make the delinquent officer responsible for 12 any of the charges. We are of the opinion that the reasoning adduced by the disciplinary authority that being the controlling officer he is responsible, is not sufficient as the disciplinary authority must indicate the reasons along with the material in their show cause so as to enable the delinquent officer to reply the same. Under the above circumstances as no reasons have been adduced for differing with the findings of the Enquiry Officer, we are not in agreement with the observation of the learned Single Judge. Accordingly, the order of learned Single Judge is set aside and the appeal is allowed. But however, we are of the opinion that liberty may be granted to BISCOMAUN to issue a fresh second show cause indicating the reasons to come to the conclusion for holding the appellant responsible for the loss amount of Rs. 3,09,166.00/- so as to enable the delinquent officer to reply the same within a period of eight weeks from the date of receipt of the copy of this order and the appellant will reply the same within a period of eight weeks thereafter 13 and the disciplinary authority is granted liberty to pass order in accordance with law as expeditiously as possible without being influenced by any observation made by the learned Single Judge and also by this Court. With the above observation, the appeal is allowed. Ashwini (T.Meena Kumari,J.) (Vikash Jain,J.)