Aparesh Kumar Singh, J.@mdashHeard counsel for the parties. By the Office order no. 1277 dated 2.3.2000 contained at Annexure-9 to the writ petition, petitioner, an operator under the Patratu Thermal Power Station (PTPS) of the erstwhile Bihar State Electricity Board in which place now Jharkhand State Electricity Board has stepped in, has been imposed punishment of stoppage of two annual increment with cumulative effect; debarring him from promotion to the higher post for three years from the date his junior is given promotion. It was further directed by the impugned order that he shall not be paid full salary for the aforesaid period apart from subsistence allowance; in the A.C.R. for the year 1994-95 a entry of censure was directed to be entered. The aforesaid office order dated 2.3.2000 is under challenge. Further the order passed by the Chairman, B.S.E.B. vide memo dated 429 dated 19.4.2001 (Annexure-11) issued under the signature of Joint Secretary, B.S.E.B. affirming the aforesaid order of punishment is also under challenge in the present writ application.
2. The petitioner was working as an operator (Boiler) at the relevant point of time i.e. on 23.2.1995 in night shift Group-A at P.T.P.S. under the respondent, Board in which an incident occurred in Boiler Drum Unit No. 9 which caused loss of generation and consequent financial loses to the tune of rupees One Crore to the Board because of closing down of the unit for several months. The petitioner along with others were proceeded departmentally and the inquiry report was submitted vide Annexure-5 dated 1.1.1997 by the Inquiry Officer cum Electrical Superintending Engineer of the respondent-Board.
3. By the inquiry report, the inquiry officer exonerated the present petitioner who was one of the operator operating the boiler in group-A category by holding that he was engaged in following oral instructions of the controlling officer during the period of change of shift duty. Hence, he was not found directly responsible for any negligence of duty or leaving work site without permission. It is interesting to note herein that two groups of employees were charge-sheeted and inquired in the same departmental proceeding by the same inquiry officer. The petitioner, herein was operator in group-A category of workmen who handed over the charge to the group-B category of the employees also consisting of four persons, i.e. three operators and one assistant controller. The inquiry officer in his report in respect of four workmen of group-B category also expressed in the same inquiry report that they had performed their duties satisfactorily and none of the main allegations levelled against them could be established.
4. At this stage it is important to mention that two such employees Birendra Prasad and Leela Raman Jha of Group-B category had earlier approached this Court in C.W.J.C. No. 4092 of 2000(P) being aggrieved by the order of punishment of the same date i.e. 2.3.2000 and of the same nature. They had been inflicted with stoppage of two annual increments with cumulative effect and other punishment such as debarment from promotion to the higher post for one year when it falls due, permanent withholding of pay and allowances for the period during which they were under suspension except subsistence allowance and punishment of censure to be entered into their annual character role for the year 1994-95. In the said case the grounds for challenge was that the disciplinary authority while issuing the second show cause did not show any reason for differing with the inquiry officer, who had exonerated the petitioners. Further, ground was also taken that the order of punishment did not show any application of mind so far as the reply to the second show cause is concerned. The impugned order in the said case was quashed by this Court after taking into account that the disciplinary authority has failed to record any reason while differing from the inquiry report at the time of furnishing of the second show cause to enable the delinquent to defend himself from the different reasons and opinions arrived at by the disciplinary authority before a punishment can be imposed upon them. The impugned order also did not show enough application of mind while dealing with the contention of the petitioners.
5. Learned counsel for the petitioner submits that the judgment in the case of Birendra Prasad and another Vrs. The Bihar State Electricity Board & others in C.W.J.C. No. 4092 of 2000(P) dated 21.3.2013 reported in
6. Learned counsel for the respondent-Board, however has opposed the prayer of the petitioner and submitted that the misconduct, which were inquired against the petitioner were of serious nature which led to the loss of not only generation but also consequent financial loss to the extent of Rs. One Crore to the Board. The disciplinary authority has differed with the findings of the inquiry officer while issuing the second show cause and held that this petitioner is also responsible for not performing his assigned duties and was grossly negligent in handing over the charge to the next shift of the workers. Therefore, no infirmity should be attached to the impugned order by which the punishment has been imposed and upheld by the appellate authority.
7. I have heard counsel for the parties and gone through the relevant materials on record including the impugned order. In the instant case the inquiry officer while submitting the inquiry report in respect of departmental proceeding jointly pursued against four sets of workers each in category A and B came to a distinct finding that the present petitioner, who was an operator (Boiler) in Group A category amongst 3 others was engaged in following instruction of the Controlling authority in resuming coal flow during the period of change of duty. The inquiry officer did not find the petitioner responsible for the incident nor did he find that petitioner left the work site without permission. In the wake of such clear finding by the inquiry officer the second show cause notice was issued against the present petitioner � employee making him responsible for gross negligence and alleging that he had left the site without handing over the charge properly to the next shift of worker, which however is not backed by any material adduced during the enquiry to establish his guilt. It seems to be lacking in the proper ingredients of a second show cause notice in a case where the disciplinary authority has to give reasons for differing from the report of the inquiry officer exonerating the delinquent.
8. In the instant case, therefore also it appears that the decision making process in imposing the punishment against the petitioner has suffered and stands vitiated for failing to follow the ingredients of a proper second show cause notice as also not taking into account the reply of the second show cause filed by the petitioner. The perusal of the impugned order of punishment passed by the disciplinary authority also shows that it has simply reiterated the statements made in the second show cause without discussing the defence of the petitioner put forward in reply to the second show cause (Annexure-8). It, therefore, shows that the impugned original order suffers from non application of mind. In similar circumstances, in respect of two other employees of category � B group , who were jointly proceeded departmentally and in respect of whom the inquiry officer had exonerated them, the impugned order of punishment were quashed by this Court as the requirement of second show cause was not met nor the impugned order showed the proper application of mind. The judgment rendered by this Court in the case of other two employees have been referred to supra and also applies to the case of the present petitioner.
9. In these circumstances, therefore, the impugned order of punishment contained at Annexure-9 dated 2.3.2000 as also the appellate order vide memo no. 429 dated 19.4.2004 cannot be sustained in law for the aforesaid reason and are accordingly, quashed. It is informed that petitioner has retired, therefore, it will be a futile exercise to proceed against the petitioner. Accordingly, the impugned orders are set aside and the writ application is allowed in the aforesaid terms.
