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2009 DIGILAW 289 (PAT)

Harinandan Sharma v. State Of Bihar

2009-02-18

NAVIN SINHA

body2009
JUDGEMENT Navin Sinha, J. 1. The petitioner is aggrieved by the order of punishment dated 30.10.1993 visiting him censure for the year 1987-1988 and that nothing beyond subsistence allowance was payable for the period of suspension. He is also aggrieved by the appellate order dated 27.4.2002 by which the punishment has been affirmed. Learned Counsel submits that the petitioner was issued a show cause notice on 22.5.1993, to which he replied on 6.10.1993. 2. The short submission on behalf of the petitioner is that there has been no consideration of the cause shown by him in the order of punishment dated 30.10.1993. The appellate order was non-speaking and unreasoned. 3. Counsel for the State sought to support the impugned order that no prejudice had been caused to the petitioner, as he had submitted a detailed show cause and on consideration of which the order has been passed. The remedy of appeal had also been availed. 4. The punishment imposed on the petitioner is minor in nature under Rule 55A of the Central Civil Services (Classification, Control and Appeal) Rules. All that it required is a show cause notice and proper consideration of the cause shown leading to the orders of punishment. Such orders, primarily administrative in nature, are amenable to judicial review. If an order is amenable to judicial review, it has to be reasoned disclosing the materials that were considered, the reasoning passing through the mind of the authority to arrive at a conclusion, to enable the Court to review it. Reasons are the very foundation and heart of the order. In absence of reasons, the order becomes arbitrary. It is this reason which also gives satisfaction to the delinquent that he has had a fair opportunity, that his defence was properly considered, that he was unfortunate that he could not get relief in law. 5. The duty to give reasons was noticed in paragraph 31 by the Supreme Court in (C.D. Gautam v. Union of India and Ors.) which reads as follows: 31. 5. The duty to give reasons was noticed in paragraph 31 by the Supreme Court in (C.D. Gautam v. Union of India and Ors.) which reads as follows: 31. The recording of reasons which lead to the passing of the order is basically intended to serve a two fold purpose: (i) That the "party aggrieved" in the proceeding before (Sic the appropriate authority) acquires knowledge of the reasons and in a proceeding before the High Court or the Supreme Court (since there is no right of appeal or revision), it has an opportunity to demonstrate that the reasons which persuaded the authority to pass an order adverse to his interest were erroneous, irrational or irrelevant; and (ii) That the obligations to record reasons and convey the same to the party concerned operates as a deterrent against possible arbitrary action by the quasi judicial or the executive authority vested with judicial powers. 6. In the present case, the impugned order only contains a rhetoric recital that show cause was issued to the petitioner and the cause shown had been considered. What was the cause shown and what were the reasons for which the cause shown by the petitioner was not acceptable has not been discussed. Likewise the appellate order is non-speaking and unreasoned. The appellate authority is also required to briefly discuss the charges, the cause shown and by a brief discussion of application of mind by the appellate authority hold that the appeal had no merit. These are completely lacking in the appellate order also. 7. In (Divisional Forest Officer, Kotha Guden and Ors. v. Madhusudan Raut), it has been held at paragraph 20 as follows: 20. It is no doubt also true that the appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interest of justice the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision.... 8. In the nature of punishment, when there are no allegations of moral turpitude or any monetary loss to the Government, this Court 16 years after the punishment and 7 years after the appellate order is not persuaded to remand the matter. If the Respondents have chosen not to comply with the law, the responsibility for the same rests with them. In the nature of punishment, when there are no allegations of moral turpitude or any monetary loss to the Government, this Court 16 years after the punishment and 7 years after the appellate order is not persuaded to remand the matter. If the Respondents have chosen not to comply with the law, the responsibility for the same rests with them. 9. The impugned order of punishment dated 30.10.1993 and the appellate order dated 27.4.2002 are, accordingly, set aside. The petitioner is entitled to full salary for the period of suspension to be paid to him within a period of eight weeks from the date of receipt and/or production of a copy of this order. The writ application stands allowed.