IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3644 of 2007 Devendra Prasad Yadav, son of Sri Shital Prasad Yadav, resident of Village Kalyanpur, P.S. K. Nagar, Dist. Purnia. -------- Petitioner Versus 1. The State of Bihar. 2. Divisional Commissioner, Purnia Division, Purnia. 3. District Officer, Purnia. 4. District Superintendent of Education, Purnia. 5. Circle Officer, Purnia East Anchal, Purnia. 6. Area Education Officer, Purnia. 7. Block Education Extension Officer, East Block, Sadar, Purnia. ------- Respondents ----------- For the Petitioner :- Mr. Pankaj Kumar Sinha, Adv. Mr. Kamal Kishore Jha, Adv. For the State :- Mr. Rajeev Kr. Singh, G.P.15 Mrs. Sunita Kumari, AC to G.P.15 ---------- 2 12.08.2011 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application to quash the order of punishment dated 17.11.2003 and the appellate order dated 20.10.2006 is based on a simple and plain premises that even when the petitioner was exonerated by the Enquiry Officer in his enquiry report dated 13.6.2003, the resultant order of punishment was passed either without differing with the findings of the enquiry report and also giving him notice and/or an opportunity of hearing. Learned counsel for the petitioner has also assailed the appellate order by 2 taking a plea that this vital aspect was not at all gone into by the appellate authority who had some how read between the lines in the show cause reply filed by the petitioner for treating them as his admission that he was unauthorisedly absent from duty in afternoon on 7.4.2003. Learned counsel for the State on the other hand has supported the view taken by the appellate authority, the Commissioner of Purnia Division affirming the order of punishment by pointing out that it was an admitted position that the petitioner had left the school on 7.4.2003 after luncheon interval without taking any permission from his controlling authority and, therefore, once he was found to be absent in the surprise inspection of the Collector of the district, the order of punishment could not be interfered only on account of the charge being not found to have been proved by the Enquiry Officer. In the considered opinion of this Court, neither the appellate authority nor the counsel can be permitted to make out a 3 third case, inasmuch as, in any disciplinary enquiry, the procedure laid down has to be followed. Such procedure ofcourse does not contemplate that the report of Enquiry Officer would be binding on the disciplinary authority but, at the same time, if the Enquiry Officer had fully exonerated the petitioner by recording the following conclusive finding:- “vr% izkIr Li"Vhdj.k rFkk ZLFkkuh; tkWp ,oa iwN&rkN ds vk/kkj Jh ;kno] lgk;d f'k{kd ds mij yxk;k x;k vkjksi rF;ghu] fujk/kkj rFkk lR;rk ls ijs gSA pwWfd os e/;kUrj esa osrukfn Hkqxrku ysus gsrq lec) fo|ky; genk vk;s gSa ftldh iqf"V lEc) fo0 ds iz/kkuk/;kid }kjk fyf[kr :i esa fd;k x;k gSA” and the same was sought to be differed by the Collector of the district, the disciplinary authority, he had to issue a show-cause notice disclosing the reasons for his difference of opinion and only thereafter, he could have proceeded to pass an order of punishment after considering the show-cause reply filed by the petitioner. The law in this regard stands settled in the judgment of the Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in 1998(7)SCC 84. Admittedly the disciplinary 4 authority had never issued any show cause notice to the petitioner before passing the impugned order of punishment as is apparent from the materials on record. Thus the impugned order of punishment is in violation of principles of natural justice as also in teeth of law laid down by the Apex Court in the case of Kunj Bihari Mishra (supra). Since this vital aspect going to the root of the matter has also been considered by the appellate authority, who has curiously gone into the merit of the charge, the appellate order can also not be sustained in law. Accordingly, both the order of punishment dated 17.11.2003 and the appellate order dated 20.10.2006 are hereby quashed. Since the petitioner has already retired from service, there would be no occasion for this Court to remit the matter back to the disciplinary authority for proceeding from the stage of service of show-cause notice after submission enquiry report and accordingly, this Court would also direct the District Programme Officer, Purnia to make payment of full salary for the period of 5 suspension of the petitioner as also refund the amount of one increment which the petitioner had been deprived by way of undergoing the consequence of the impugned order of punishment. With the aforementioned observations, this application is allowed. Rsh (Mihir Kumar Jha, J.)