Ajay Kumar Tripathi, J.@mdashShorn of all other details and the submissions which have been made at the bar by the learned senior counsel representing the petitioner, one aspect does merit consideration, in view of the well settled proposition in this regard by several decisions rendered not only by this Court but even the apex Court.
2. Respondent authorities in exercise of power under Rule 43(b) as well as Rule 139(a) and (b) of the Bihar Pension Rules have decided to withhold 100 per cent pension of the petitioner on the basis of a departmental enquiry conducted against him twice over. According to the petitioner, neither in the first enquiry report nor in the second enquiry report the enquiry officer found the petitioner guilty of any of the charges framed against him. This would be borne out from the enquiry reports which have been brought on record by the petitioner. But despite such a finding of innocence, the respondent disciplinary authority issued a second show-cause and decided to impose punishment. Petitioner superannuated in the meanwhile on 31.8.1995, so recourse to 43(b) and 139 (a) & (b) of Bihar Pension Rules was taken. He submits that the whole procedure has been given a go-by by not giving the petitioner a notice of disagreement with the material for doing so, by the disciplinary authority, contrary to the findings recorded by the enquiry officer.
3. The right of the disciplinary authority to disagree with the findings of the enquiry officer is not disputed at all. But it is well settled that if there is disagreement with the findings of the enquiry officer, by the disciplinary authority, the disciplinary authority has to give a notice of disagreement along with the materials for such a disagreement to the delinquent. But from the records it emerges that no separate notice for disagreement was given to the petitioner. Only a second show-cause was given based on which the punishment contained in Annexure-12 dated 26.8.1997 came to be passed.
4. Petitioner has also brought on record a so-called order of punishment dated 25.8.1995 where respondents decided to record a warning in the service book for the period 1989-90.
5. Yet another prayer on behalf of the petitioner besides quashing of the punishment orders is to grant him promotion for the period he was entitled to. This prayer of the petitioner is being rejected primarily on the ground that the petitioner is not entitled to demand or pray for multiplicity of relief in one writ application. The present writ application will have to be confined to the punishment orders which have been passed against him and nothing more.
6. In the counter affidavit which has been filed on behalf of the respondent State they have stated that there were serious charges against the petitioner, which primarily related to large scale of purchases beyond the power and sanctioned budget vested in the petitioner. The entire exercise of holding the departmental enquiry culminated from the said fact. Though the enquiry officer was evasive in his findings but the disciplinary authority disagreed and a second show-cause was issued before imposition of punishment. The punishment imposed was the least which could be done for his misdemeanour while being posted as an officiating Executive Engineer in the project.
7. This Court has certain reservation on the stand taken by the respondents on two counts. Number one that no notice for disagreement with necessary material has been brought on record and second that no evidence has been shown that such a step was taken in this regard. In absence of such a notice the second show-cause notice and the punishment thereafter will not help the respondents in any manner. Since this failure on the part of the respondents is prejudicial to the interest of the petitioner, the Court has no option but to interfere with the orders of punishment.
8. Both Annexures 12 and 13 are quashed but matter is remanded back to the disciplinary authority with liberty to him to give notice to the petitioner with material and evidence which has come during the course of enquiry, which forms the basis for disagreement or conclusions contrary to the findings of the enquiry officer. If he is not satisfied with the explanation offered by the petitioner then may consider issuing a second show cause and the consequential order may follow. As of now, for the infirmity noted above, the orders of punishment cannot be sustained.
9. The writ application is allowed and the two impugned orders are quashed and set aside and matter is remitted back.
10. Since this matter has dragged on for many years now and the petitioner retired many years ago, the Court expects that the respondents will give utmost priority to the issue and would try to take the matter to its logical end within a period of six months from the date of communication/production of a copy of this order.
