Allowed

Kavindra Kumar Singh v. the State of Bihar and Ors.

Patna HC25 Apr 2013CWJC/8115/2012

Case brief

AI extract

What is this about?

The Patna High Court quashed a departmental punishment order and its appeal dismissal because the disciplinary authority failed to record reasons for rejecting an inquiry officer's exoneration, violating natural justice and Rules 18 and 21 of the 2005 Service Rules. The Court issued a direction for a fresh hearing.

What did the court decide?

Impugned orders quashed; liberty given for fresh de novo proceedings within three months to consider defence.

Kavindra Kumar Singh Vs the State of Bihar and… — Pension and Retirement Benefits | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8115 of 2012

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====================================================== Kavindra Kumar Singh S/O Late Harihar Singh R/O Village- Sohansi, P.O.Sohansa, P.S.- Paroo, District- Muzaffarpur, Presently Working As Junior Engineer, Water Resources Department, Drainage Division, Hajipur, District- Vaishali At Hajipur .... .... Petitioner Versus 1. The State Of Bihar 2. The Principal Secretary Water Resources Department, Government Of Bihar, Patna 3. The Secretary Water Resources Department, Government Of Bihar, Patna

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The Engineer-In-Chief Water Resources Department, Government Of Bihar, Patna

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The Executive Engineer-Cum-The Conducting Officer Water Resources Department, Design Division No.1, Dehri, District- Rohtas

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The Under Secretary Water Resources Department, Government Of Bihar, Patna

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.... .... Respondents

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====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER

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3 25-04-2013 Heard counsel for the parties.

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The prayer of the petitioner in this writ application reads as follows:

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“(I) For issuance of an appropriate writ in the nature of Certiorari for quashing the order dated 14.6.2011 passed by the respondent no.4 and contained in his memo no. 683 dated 14.6.2011, whereby and whereunder three punishments were imposed against the petitioners after holding a departmental proceeding against him and after quashing the aforesaid order of punishment, for a direction to the respondents for payment of benefits to the petitioner for which he would have been entitled, had the aforesaid order of punishment would not have been passed against him.

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Patna High Court CWJC No.8115 of 2012 (3) dt.25-04-2013

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(II) For issuance of an appropriate writ in the nature of Certiorari for quashing the letter dated 28.2.2012 issued under the signature of the respondent no.6 and contained in his letter no.226 dated 28.2.2012 whereby and whereunder the petitioner has been communicated the decision of the appellate authority on appeal filed by the petitioner against the order of punishment.

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(III) for issuance of an appropriate writ in the nature of Mandamus commanding and directing the respondent authorities for payment of salary of the petitioner from 17.11.2008 to 16.11.2009 which was also a punishment proposed against the petitioner in the second show cause notice issued under the signature of the respondent no.4 but ultimately no such order has been passed by the respondent no.4 while issuing order of punishment against the petitioner.”

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The facts which are not in dispute and would be

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sufficient to dispose of this writ application lie in a very narrow compass. The petitioner working as a Junior Engineer was subjected to a departmental proceeding in which the memo of charge was framed against him on 11.11.2009 after the petitioner had already been placed under suspension on 2.11.2009. The departmental proceeding against him had proceeded, inasmuch as the petitioner had filed his written statement of defence on 2.12.2009 denying the charges whereafter the Enquiry Officer having examined the materials on record had submitted his

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enquiry report on 25.3.2010 exonerating him from all the charges. The disciplinary authority, however, by his order dated 15.11.2010 had differed with the finding of the enquiry report and had issued a show cause notice to the petitioner as to why he should not be held guilty. The petitioner is said to have filed his show cause on 14.12.2010 and 30.12.2010 whereafter the impugned order dated 14.6.2011 imposing punishment on the petitioner was passed and when the petitioner took the matter in appeal, the appellate authority also by his order dated 28.2.2012 had dismissed the appeal by affirming the order of the disciplinary authority.

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Mr. S.B.K.Mangalam, learned counsel appearing on behalf of the petitioner, has assailed both the orders on various grounds but one which will go to the root of the matter is relating to violation of principals of natural justice. Mr. Mangalam in this regard has explained that after the petitioner was exonerated by the Enquiry Officer though it was open for the disciplinary authority to defer with the finding of the Enquiry Officer but then when the petitioner had filed his show cause reply explaining not only the correctness of the finding given in the enquiry report but even otherwise putting his view that the disciplinary authority had wrongly inferred that the charges against the petitioner were proved, it was absolutely necessary for the disciplinary authority

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Patna High Court CWJC No.8115 of 2012 (3) dt.25-04-2013

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to record reasons for rejecting the contentions raised by the petitioner while passing an order of punishment against the petitioner. In this regard he has submitted that the petitioner being governed by the Government Servants (Classification, Control and Appeal) Rules, 2005, he is well protected by the provision of Rule 18 read with Rule 22 which mandates the disciplinary authority to give reasons while passing the order of punishment. He has also submitted that as a matter of fact even the appellate authority has not examined the matter in the light of the issues raised by the petitioner in his memo of appeal and that order also is cryptic as also non-speaking.

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Mr. Vikas Kumar, learned counsel appearing on behalf of the State, on the other hand, with the help of the counter affidavit has submitted that true it is that the petitioner was exonerated by the Enquiry Officer but then the disciplinary authority had found obvious discrepancy in the enquiry report and as such, has chosen to differ with the same. In this regard he has placed reliance on the show cause notice issued to the petitioner containing the reasons for deferring with the findings of the Enquiry Officer and he submits that those reasons had already been disclosed to the petitioner, even if the impugned order does not contain the reasons in support of the order of punishment, no

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prejudice has been caused to the petitioner on this score. He has further relied on the content of the appellate order to say that since the original order passed by the disciplinary authority has merged with the appellate order, the reasons given by the appellate authority could be very well looked into in justification of the order of punishment.

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Having given anxious consideration to the aforementioned submission this Court is of the considered view that there can be no substitute of reasons to be given in the order of punishment. That is the requirement of 2005 Rules and that has to be followed in letter and spirit. A close perusal of Rule 17, Rule 18 and Rule 21 will leave nothing for speculation that the Enquiry Officer is under obligation to give reasons while recording the finding in respect of each of the charge and thereafter the disciplinary authority has to pass his order considering those findings given by the Enquiry Officer as also explanation submitted by the delinquent. It is in this regard Rule 21 becomes most important which lays down that:

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“Orders made by the disciplinary authority shall be communicated to the government servant who shall also be supplied with a copy of its finding on each article of charge, or where the disciplinary authority is not the inquiring authority, a statement of the findings of the

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disciplinary authority together with brief reasons for its disagreement, if any, with the findings of the inquiring authority and also a copy of the advice, if any, given by the Commission, and where the disciplinary authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance.”

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The requirement of Rule 21, therefore, is with regard

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to an order which has to be passed by the disciplinary authority in terms of Rule 18(4) which lays down that:

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“The disciplinary authority shall consider the representation or submission, if any, submitted by the government servant before proceeding further in the manner specified in sub rules (5) and (6).”

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Rule 5 and 6 lay down the power of the disciplinary authority to impose punishment and in Rule 18(5) it has been provided that:

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“If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (i) to (v) of rule 14 should be imposed on the government servant, it shall, notwithstanding anything contained in rule-19, make an order imposing such penalty.”

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In Rule 18 Sub-rule (5) when the word “its findings”

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has been qualified with the word “disciplinary authority” the findings of the Enquiry Officer cannot be a substitute and therefore, Rule 18 Sub-rule (5) read with Rule 21 will leave

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nothing for speculation that in any event the disciplinary authority has to record his own finding in respect of each charge after receipt of the enquiry report and the explanation of the delinquent.

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This becomes more important in case of disagreement from the finding recorded by the Enquiry Officer because the plea putforward by the delinquent has already been accepted by the Enquiry Officer and the disciplinary authority chooses to defer with those pleas and also the findings of the Enquiry Officer by giving his own reasons. He may very well do so but then once an explanation of the delinquent in regard to his own tentative findings holding the delinquent guilty is placed before him he would be required to record the reasons for rejecting such pleas before imposing the order of punishment. That is the minimum requirement of principles of natural justice because mere issuance of show cause notice is not enough by way of compliance of the principles of natural justice.

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By now it is well settled that passing of a reasoned order on any show cause reply is essential for an effective compliance of the principles of natural justice. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of The Siemens Engineering and Manufacturing Co. of India Ltd. v. The Union of India & ors .,

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reported in AIR 1976 SC 1785 , wherein it was held that :-

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"......... the rule requiring reasons to be given in support of an order is, like the principles of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process........."

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The requirement of recording reasons also was gone

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by the Apex Court in the celebrated judgment in the case of S.N.Mukherjee v. Union of India, reported in AIR 1990 SC 1984, wherein it was held that if the Rules required recording of reason the authorities will have to give reasons otherwise the order will be bad. In fact another facet was added in the said judgment by the Apex Court that since such orders are amenable in appeal or before courts in the process of judicial review, the reasons alone can go to show application of mind by the disciplinary authority. The Apex Court in this regard had held as follows:-

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"35. ............... An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations

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which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority. (i) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy of expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency.

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Reasons, when recorded by an administrative authority in an order passed by it while exercising quasijudicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative

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authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstance. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage................"

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Thus, in the backdrop of the aforesaid settled position

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in law when the impugned order passed by the disciplinary authority in this case is examined, which reads as follows:

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“fcgkj ljdkj ty lalk/ku foHkkx vkns'k

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vk0la0&22@fu0fl0 ¼le0½&2&06@2009@iVuk] fnukad&14@6@11

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Jh dohUnz dqekj flag rr~dkyhu duh; vfHk;ark ck<+ fu;a=.k ize.My la0&2 >a>kjiqj dk lFkkukUrj.k izlklfud n`f"Vdks.k ls foHkkxh; vkns'k la[;k 06 fnukad&4@2@09 }kjk ewq[; vfHk;ark ty lalk/ku foHkkx fMgjh fd;k x;k A ijUrq foHkkxh; funsZ'k dk vuqikyu ugh djrs gq, Jh flag }kjk euekus <+ax ls LFkkukUrjhr LFkku ij ;ksxnku ugha fd;k x;k A vr^% foHkkxh; vkns'k ds vogsyuk djus ,oa ?kksj vuqlk'kufgurk cjrus bR;knh dfri; xaHkhj vkjksiks ds fy, Jh flag dfu; vfHk;ark dks foHkkxh; vkns'k la0&194 fnukad&2@11@09 ¼Kkkikad&1190 fnukad&2@11@09½ }kjk fuyafor fd;k x;k ,oa foHkkxh; vkns'k la[;k 201 fnukad 11@11@09

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Kkikad&1252 fnukad& 11@11@2009 ¼}kjk fogkj ljdkjh lsod½ oxhZdj.k fu;a=.k ,oa vihy fu;ekoyh 2005 ds fu;e 17 ds rgr foHkkxh; dk;Zokgh izkjaHk dh xbZ A

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foHkkxh; dk;Zokgh esa tk¡p inkf/kdkjh }kjk lefiZr tk¡p izfrosnu dh lfe{kk foHkkxh; Lrj ij dh xbZ A lE;d lfe{kksa ijkUr tk¡p inkf/kdkjh;ksa dh tk¡p izfrosnu ls vlger gksrs gq, dfri; vlgefr ds founqvksa ij Jh flag dfu; vfHk;ark ls foHkkxh; i=kad 1657 fnukad& 15@11@2010 }kjk f}rh; dkj.k iPNk fd;k x;k A <u>Jh flg duh; vfa</u> Hk;ark ls izkIr f}rh; dkj.kiPNk ds mRrj dh lfe{kk foHkkxh; Lrj ij dh xbZ lE;d lfe{kksijkUr Jh flg da s fo:} foHkkxh; vkns'kksa dk mya?ku djus vius mPpkf/kdkjh;ksa ls nwO;Zogkj djus muds vkns'kksa dk vuqikyu ugha djus dk vkjksi izekf.kr ik;k x;k tks xaHkhj dnkpkj dh Js.kh esa vkrk gS A

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vr% Jh flag duh; vfHk;ark dks fuyacu ls eqDr djrs gq, vuqlklufgurk ds izekf.kr vkjksiksa ds fy, fufEu naM lalqfpr djus dk fu.kZ; foHkkx }kjk fy;k x;k gS A

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¼1½ fuUnu o"kZ 2008&09

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¼2½rhu osru o`f);ksa ij vlap;kRed izHkko ls jksd A

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¼3½fuyacu vof/k esa ns;HkRrk ds vfrfjDr dqN ns; ugh gksxk A ijUrq mDr vof/k dh x.kuk isa'ku iz;kstukFkZ dh tk;sxh A

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mDr foHkkxh; fu.kZ; Jh dfoUnz dqekj flag dfu; vfHk;ark dks lalqfpr fd;k tkrk gS fuyacu ls eqfDr ds i'pkr Jh flag ty lalk/ku foHkkx ¼eq[;ky;½ esa ;ksxnku djsaxsA

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g0@&

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nsoh jtd

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vfHk;Urk izeq[k ¼e/;½

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(underlining for emphasis)

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there would be nothing left for speculation that the entire consideration of the disciplinary authority after submission of

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show cause reply by the petitioner was only to the extent that after examination of the show cause reply of the petitioner his misconduct was found to be grave in nature as would be also clear from the underlined portion of the impugned order quoted above. From reading of the aforementioned reason it does not transpire that the disciplinary authority had even looked into the specific defence of the petitioner. In this regard it has to be also kept in mind that the findings of the Enquiry Officer were in favour of the petitioner and therefore, he had all the reasons to persuade the disciplinary authority to accept the reasons given by the Enquiry Officer.

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It is this aspect which has been explained by the Apex Court in the case of Punjab National Bank & ors. v. Kunj Behari Misra, reported in (1998)7 SCC 84, wherein their Lordships has dealt with similar situation and had held as follows:

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“17. ................ It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must given him a

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hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.

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Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciploinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impost the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before

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the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recoding a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case reported in (1993) 4 SCC 727.

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The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

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Thus, this Court in view of aforesaid law laid by Apex Court in the case of Kunj Bihari Mishra (supra) will have no difficulty in holding that in case of disagreement with the finding of the Enquiry Officer the disciplinary authority will have to always record reasons and in absence thereof the order of punishment cannot be sustained being both in violation of the principles of natural justice as also in violation of Rule 18(5) read with Rule 21 of 2005 Rules.

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The submission of Mr. Vikas Kumar that the original order of the disciplinary authority having been merged with the appellate order, the reasons given in the appellate order could become a substitute for lapse on the part of the disciplinary authority in recording reasons has to be only noted for its being rejected. First of all it is the requirement of Rule 21 that disciplinary authority has to record reasons and in fact the appellate authority also cannot look into the aspect unless those reasons are available in the order of the disciplinary authority. The delinquent cannot file his appeal in an effective manner because he is not aware as to what has weighed upon the disciplinary authority in passing such order. In that view of the matter, filing of the appeal becomes a mere formality whereas 2005 Rules lays down the manner in which the appellate authority had to consider

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the appeal. Rule 26 lays down forms and content of appeal and Rule 27 provides the manner in which the appeal has to be considered. Rule 27 thus being relevant is quoted hereinbelow:

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“Consideration of appeal.-(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in view of the provisions of rule 9 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke or modify the order accordingly.

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(2) In the case of an appeal against an order imposing any of the penalties specified in rule 14, the appellate authority shall consider-

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(a) whether the procedure laid down in these rules has been complied with and if not, whether such noncompliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

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(b) whether the findings of the disciplinary are warranted by evidence on the record; and

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(i) confirming, enhancing, reducing, or setting aside the penalty; or

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(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; Provided that-

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(i) the Commission shall be consulted in all cases where such consultation is necessary;

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(ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 14 and an inquiry under rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 19, himself hold such inquiry or direct that such inquiry be held in accordance with the provisions of rule 18 and thereafter on a consideration of the proceedings of such inquiry and after giving the appellant a reasonable opportunity, as far as may be in accordance with the provisions of clause (ii) of rule 18, of making a representation against the penalty proposed on the basis of the evidence adduced during such inquiry, make such orders as it may deem fit;

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(iii) if the enhanced penalty which the appellate authority proposed to impose is one of the penalties specified in clauses (i) to (v) of rule 14 and an inquiry under rule 17 has already been held in the case, the appellate authority shall, make such orders as it may deem fit, after the appellant has been given a reasonable opportunity of making a representation against the proposed penalty; and

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(3) The appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equaltable.”

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From reading of Rule 14(2) of 2005 Rules it would be

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clear that first of all the authority has to be independently satisfied

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that the procedure laid down for holding the enquiry has been completed and whether any of violation has resulted into prejudice to the delinquent or failure of justice. Secondly, under Rule 27(2)(b) the appellate authority has to apply as to whether findings of the disciplinary authority are supported by the evidence on record. Thus, the requirement of reasoned order of the disciplinary authority cannot be dispensed with, inasmuch as if no reasons are there and no finding is recorded by the disciplinary authority, on what material the appellate authority can apply itself while complying the provisions of Rule 27(2)(b) of 2005 Rules. In view of above, there will be no difficulty in holding that even before the appellate authority considers the issues raised in the memo of appeal he has to first examine the existence of a reasoned order backed by finding in respect of charges framed against the delinquent.

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Based on the analysis of the aforementioned provisions of Rule 27 if the content of the appellate order is also examined the same does not fulfil the test of 2005 Rules, inasmuch as all that he has gone to hold while rejecting the memo of appeal is as follows:

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“funs'kkuqlkj mi;qZDr fo"k;d foHkkxh; vkns'k la0&43 fnukad&14-6-11 ¼Kkikad&683 fnukad&14-6-11½ }kjk lalwfpr n.M ds fo:} vkils izkIr vihy vH;kosnu dh leh{kk foHkkxh; Lrj ij dh

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xbZ A lE;d leh{kksijkUr fuEu rF; ik;k x;k %&

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¼1½ vkids }kjk foHkkxh; LFkkukUrj.k vkns'k la0&6 fnukad&04-02-09 ¼Kkikad&227 fnukad&04-2-2009½ dk vuqikyu ugha fd;k x;k A mDr vkns'k ds fo:} vkids }kjk nk;j ;kfpdk la0&2433@2009 fnukad&18-2-2009 ij ekuuh; U;k;ky; }kjk dksbZ LFkxu vkns'k ugha FkkA vkidk ;g dguk gS fd U;k;kns'k dh izrh{kk esa vius in ij cus jgs dks ekU; ugha fd;k tk ldrk gS A

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¼2½ vkids }kjk vius mPpkf/kdkfj;ksa ls nwO;Zogkj djus ,oa muds vkns'kksa dk vuqikyu ugha fd;s tkus ds rdZ esa ek= ;g dguk fd muds fo:} pykbZ xbZ foHkkxh; dk;Zokgh esa lapkyu inkf/kdkjh }kjk mUgsa vkjksiksa ls eqDr fd;k tk pqdk gS] rdZ laxr ugha gS A lkFk gh vkidk ;g dguk gS fd nwO;Zogkj dk laKku dkQh le; ckn fy;k x;k gS] xyr gS A pwafd ;g ?kVuk 11-5-2008 ds lqcg 8-30 cts dk;Zikyd vfHk;ark] ck< fu;a=.k ize.My la0&2] >a>kjiqj ds vkokl ij voj ize.Myinkf/kdkjh ds lkFk ?kVh ,oa mlh fnu voj ize.My inkf/kdkjh }kjk bldh fyf[kr lwpuk dk;Zikyd vfHk;ark dks nh xbZ A dk;Zikyd vfHk;ark Lo;a blds lk{kh Fks] blfy, mUgksaus bldh lwpuk ,oa dkjZokbZ ds fy, mPpkf/kdkjh dks fy[kk gS A ftlls mDr ?kVuk dh iqf"V gksrh gS A

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of.kZr fLFkfr esa vkids fo:} foHkkxh; ,oa mPpkf/kdkfj;ksa ds vkns'k dh vogsyuk djus ,oa ek= vLFkk;h vfxze dk cgkuk cukdj foHkkxh; dk;Z ds fu’iknu esa Vky&eVksy dh uhfr viukus dk vkjksi izekf.kr ikrs gq, vkids }kjk lefiZr vihy vH;kosnu dks vLohd`r djus dk fu.kZ; foHkkx }kjk fy;k x;k gS A 19. The appellate authority, therefore, has only dealt with

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the possible pleas of the petitioner but has not at all addressed himself to the findings recorded by the disciplinary authority. In fact there was no finding in the order of disciplinary authority and therefore, the appellate authority had tried to only look into the aspects as could be gathered by him from the memo of appeal.

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¶127

Such appellate order, however, cannot be said to be in accordance with the requirement laid down under Rule 27(2) especially when the petitioner had emphatically placed reliance on the findings of the report of the Enquiry Officer. As noted above, the disciplinary authority has given no reasons in his order of punishment for rejecting the finding in favour of the petitioner recorded in the enquiry report and the appellate authority also had done the same. Thus, this Court would not find that the appellate order also is not in accordance with the provisions made in 2005 Rules.

¶128

In the light of the aforementioned discussions this Court must hold that both the impugned orders are bad and cannot be sustained either on fact or in law and are, accordingly, quashed.

¶129

Since this Court has interfered with the impugned orders on the ground of violation of principles of natural justice it will give liberty to the respondents to proceed from the stage of filing of the show cause reply by the petitioner and since the petitioner has already filed his show cause reply to the notice communicating the reasons for deferring with the enquiry report it will be now necessary for the disciplinary authority to pass afresh order after considering the defence of the petitioner in the show cause reply filed by him. This exercise must be completed within a period of three months from the date of receipt of this order.

¶130

Patna High Court CWJC No.8115 of 2012 (3) dt.25-04-2013

¶131

¶132

In the event the petitioner would be exonerated by the disciplinary authority, he will be entitled for everything which was deprived on account of either the departmental enquiry or the order of punishment.

¶133

This application is, accordingly, allowed to the extent indicated above.

¶134

(Mihir Kumar Jha, J)

¶135

surendra/-

Kavindra Kumar Singh v. the State of Bihar and Ors.

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Kavindra Kumar Singh v. the State of Bihar and Ors.

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