Mushtaque Ansari v. The State Of Bihar Through Home Secretary, Government Of Bihar

Patna High Court CWJC No.14169 of 2012 (2) dt.17-01-2013 2 unsustainable both on fact and in law. Admittedly, the petitioner was subjected to a departmental proceeding on nine charges and the Divisional Commissioner, Muzaffarpur in his enquiry report dated

19.10.2009 had found none of the charges to have been proved in course of enquiry and, thereafter, the Home Commissioner having differed with the findings in respect of charge nos. 1, 3, 6 & 8 had issued show-cause notice to the petitioner directing him to explain as to why he should not be held guilty. The petitioner in paragraph no.11 of the writ application has stated that he had thereafter filed his show-cause reply, a fact which has also been admitted in paragraph no.12 of the counter affidavit filed today. In fact, the impugned order also refers to the filing of such show-cause reply by the petitioner pursuant to the second show-cause notice differing with the report of the enquiry officer. What thereafter has been done is really amazing, inasmuch as, the impugned order of punishment dated 26.8.2010 is a most cryptic order which does not even disclose application of mind on any of the facts mentioned by the petitioner in the second show-cause reply submitted by him. In fact, the impugned order, reading as follows:- ^^fcgkj dkal lsok ds inkf/kdkjh Jh eqLrkd valkjh ds fo:) eaMy dkjk] lhrke<+h ds v/kh{kd Patna High Court CWJC No.14169 of 2012 (2) dt.17-01-2013 3 ds :i esa inLFkkiu dky esa izfrosfnr vfu;ferrk] LosPNkpkfjrk ,oa vf/kdk;h osru izkIr djus ds vkjksiksa ds fy, foHkkxh; vf/klwpuk la0 5656 fnukad 26-05-08 }kjk foHkkxh; dk;Zokgh lapkfyr dh xbZA 2- foHkkxh; dk;Zokgh lapkyu ds mijkUr tkWp inkf/kdkjh ls izkIr izfrosnu ,oa ml ij Jh valkjh ls fd;s x;s f}rh; dkj.k i`PNk esa izkIr mrj dh leh{kk ds mijkar Jh valkjh] rRdkyhu v/kh{kd] eaMy dkjk] lhrke<+h ds fo:) eqykdr vof/k ds mijkar dkjk esa lalfer [krjukd canh ls jkT; ds ckgj ds O;fDr;ksa dks dkjk ds Hkhrj ys tkdj eqykdkr djkus esa vius fo”ks’kkf/kdkj dk nq:I;ksx djus] ftyk iz”kklu ds tkWp ny ls rF; Nqikus rFkk dkjk v/kh{kd ds :i esa mUgsa vuqekU; osrueku 6500&10500 ds LFkku ij egkys[kkdkj] fcgkj ls xyr <+ax ls 8000&13500 ds osrueku esa osruiqtkZ izkIr dj vf/kd osru dh fudklh dj ljdkjh jkf”k dk xcu djus ds vkjksi izekf.kr ik;s x;sA 3- mDr izekf.kr vkjksiksa ds fy, Jh eqLrkd valkjh] dkjk/kh{kd dks mudh rhu osruo`f};ksa ij lap;kRed izHkko ls jksd yxkus dk naM fn;k tkrk gSA 4- muds }kjk vuqekU; osru ls vf/kd izkIr fd;s x;s osru@Hkrs dh olwyh muls ,d eq”r dj yh tk;sxhA** would by itself be sufficient to indicate that the same was passed without application of mind much less discussing the issues raised by the petitioner in the second show-cause reply. As a matter of fact, from reading of the impugned order, it also appears that even for the charges on which the petitioner was exonerated by the enquiry officer and on which the Disciplinary Authority did not Patna High Court CWJC No.14169 of 2012 (2) dt.17-01-2013 4 differ, namely, charge nos. 2, 4, 5 & 7 were also taken into consideration for inflicting punishment on the petitioner. As noted above, the difference of the Disciplinary Authority was only in respect of charge nos. 1, 3, 6 & 8 but not a word can be inferred from the impugned order as with regard to his application of mind in respect of thana. It has been well settled that the Disciplinary Authority has every right to differ with the findings recorded by the enquiry officer but, then, when a second show-cause notice is issued differing with the findings in the enquiry report, the Disciplinary Authority would be under obligation to consider the facts mentioned in the reply to the second show-cause notice. That is how the judgment of the Apex Court right from the case of Narayan Misra Vs. State of Orissa reported in 1969 SLR 657 to judgment in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in 1998(7)SCC 84 has specifically led down the law in this regard. In fact, in Kunj Bihari Misra case (supra), the Apex Court has even gone to the extent that an opportunity has to be given to the delinquent for persuading the Disciplinary Authority as to why the findings recorded in his favour recorded by the Enquiry Officer should not be accepted. In view of all these settled position in law it would be Patna High Court CWJC No.14169 of 2012 (2) dt.17-01-2013 5 difficult for this Court to sustain the wholly bald and unspeaking impugned order. That being so, this application is allowed and the impugned order contained in Annexure-1 is hereby quashed and the matter is remitted back to the Home Secretary of the Government of Bihar to proceed afresh from the stage of consideration of the second show-cause reply of the petitioner, which is already on record and pass a speaking order in accordance with law. Since the petitioner is likely to superannuate shortly in the near future, the decision of the competent Disciplinary Authority must be taken in this regard within a period of six months from the date of receipt/production of a copy of this order. With the aforesaid observations and directions this writ application is allowed only to the extent indicated above. (Mihir Kumar Jha, J) Rishi/-