M.Y.EQBAL, J. - (1.) Heard the parties.
(2.) IT is really sad state of affair that although writ application was filed in April, 2001, but neither State of Bihar nor State of Jharkhand have filed their counter -affidavit. The petitioner has challenged the impugned order of punishment on various grounds but in my opinion one ground would be sufficient to dispose of the writ application. - - Petitioner was posted as Executive Engineer, Minor Irrigation Division, Ranchi. Pursuant to the acceptance of tender for construction of works an agreement was executed by and between the respondents and the petitioner -contractor. The contractor furnished security by way of Bank guarantee. Subsequently, petitioner was charge -sheeted on the allegation that the Bank guarantee furnished by the contractor was not properly verified and it was not genuine bank guarantee. Petitioner was subjected to departmental proceeding. The Inquiring Officer after considering the facts and material, come to a finding that the Bank guarantee which was deposited by the contractor by way of security was a valid document and it was properly verified by the petitioner. The Enquiry Officertherefore exonerated the petitioner from the charges. The Secretary of the Department agreeing with the finding of the Enquiry Officer recommended to exonerate the petitioner from the charges. However. Minister Incharge who is disciplinary authority issued second show -cause notice to the petitioner asking him to show -cause as to why punishment mentioned in the said notice be not imposed. Petitioner submitted his show -cause and thereafter impugned order of punishment has been passed.
(3.) LEARNED counsel for the petitioner drawn my attention to second show -cause notice which is Annexure 15 to the writ application. The second show -cause notice simply state that petitioner is liable to be punished by imposing punishment of withholding increment and recommendation for sending back the services of the petitioner to the parent department. It does not show as to how and on what basis the Disciplinary Authority differed with the conclusion arrived at by the Enquiry Officer. The law in this regard has been set at rest by the Constitution Bench of Supreme Court in the case of State of Assam v. Bimal Kumar, AIR 1963 SC 1612. Their Lordships have held that if the Dismissing Authority differs with the finding recorded by the Enquiry Authority, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. The Dismissing Authority should expressly state that it differs with the findings of the Enquiry Authority and then indicate the nature of the action proposed to be taken against him. This proposition of law has been followed in the subsequent decision of the Supreme Court and various High Courts. Since the second show -cause notice does not specify the reasons and the conclusions as to how the Dismissing Authority differs with the Enquiry Officer's report, it can safely be said that petitioner did not get opportunity to satisfy the authority with their defence. On this sole ground alone, the impugned order and consequential order of punishment can not be sustained in law. Respondent -Authority is required to issue fresh second show -cause notice in accordance with law laid down by the Supreme Court and then after considering the show -cause and hearing the petitioner may pass final order in this regard.;