Brindaban Rai v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.17748 of 2014 =========================================================== Brindaban Rai, son of Late Shankar Dayal Rai, resident of Tribhuban Gopal Enclave, Flat No. F1, Finance Department Colony, Khajpura, P.S. - Rajiv Nagar, District - Patna. .... .... Petitioner.

Versus

1. The State of Bihar.

2. The Principal Secretary, Road Construction Department, Govt. of Bihar, Patna.

3. The Joint Secretary, Road Construction Department, Bihar, Patna.

4. The Special Officer-cum-Deputy Secretary, Road Construction Department, Bihar, Patna.

5. The Secretary, Bihar Public Service Commission, Patna. .... .... Respondents. =========================================================== Appearance :

For the Petitioner/s : Mr. Abhay Kumar Singh, Sr. Advocate : Mr. Prabhu Nath Pathak, Advocate For the Respondent/s : Mr. Prashant Kumar, AC to GP8 For the B.P.S.C.

: Mr. Gyanendra Kumar Shukla, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL JUDGMENT Date: 16-03-2016 Heard learned counsel for the petitioner as well as learned counsel appearing for the respondents.

2. The petitioner is an Assistant Engineer in Road Construction Department. In the year, 2000 he was posted as Junior Engineer, Road Division, Kodarma in the Road Construction Department. On 20.11.2003, the petitioner was departmentally proceeded under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.

3. The charge against the petitioner was that he gave a receipt for 32.60 M.T. of Bitumen on transporters challan, instead of giving such receipt of Challan furnished by the Oil Company in pursuance with the DGS&D circular, dated 12.10.1994. The enquiry

Patna High Court CWJC No.17748 of 2014 dt.16-03-2016 2 / 3 officer on consideration of materials on record exonerated the petitioner of guilt vide enquiry report ,dated 12.05.2004 (Annexure4). The disciplinary authority did not accept the report of the enquiry officer and after providing a show-cause, awarded punishment of reduction in the lowest pay scale.

4. The petitioner's case is that he filed a review petition for reviewing the order of punishment.

5. A counter affidavit has been filed on behalf of the respondents stating that no such review petition has been filed.

6. I need not go into the said aspect of the matter, as the case can be disposed of on a limited issue that the second showcause notice was not in accordance with law laid down by the Hon'ble Apex Court in case of Punjab National Bank & Ors. Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 and in the case of Lav Nigam Vs. Chairman & MD, ITI Ltd, and another, reported in (2006) 9 SCC 440.

7. It is well settled by the ratio laid down in the aforesaid case that if a disciplinary authority disagrees with the findings recorded by the enquiry officer, he should give his tentative reasons for such disagreement.

8. I find virtually no reason in the second show-cause notice, dated 22.12.2003, for differing with the view of the enquiry officer. The only note of discordant is that the reasons given by the

Patna High Court CWJC No.17748 of 2014 dt.16-03-2016 3 / 3 enquiry officer is not acceptable.

9. It is true that there need not be an exhaustive or detailed reasons, but there has to be some reason for differing with the view of enquiry officer and merely saying that the reasons given by the enquiry officer is not satisfactory, would not satisfy the requirement of law.

10. In the result, the second show-cause notice as well as the impugned order of punishment are set aside and the matter is remitted to the respondents with liberty to proceed afresh from the stage of giving second show-cause notice and the same must be conclude within a period of four months.

11. Before parting with the order, this Court would observe that in case, the review petition annexed to this petition is manufactured, the authority can initiate enquiry.

12. This writ application is allowed to the extent mentioned above.

(Samarendra Pratap Singh, J.) Uday/- U