ORDER : Mihir Kumar Jha, J. Heard Mr. Mukul Sinha, learned counsel for the petitioner and Mr. Amish Kumar Jha, A. C. to S. C. 18 on behalf of the State. 2. The prayer of the petitioner in this writ application is to quash the ORDER :of punishment dated 20.3.2006 whereby and whereunder she has been dismissed from service on the charge of proven misconduct. 3. The facts which are not in dispute and need to be noticed for the disposal of this writ application lie in a narrow compass. The petitioner was appointed as Civil Assistant Surgeon on 1.1.1991 in the Bihar Health Services and had been assigned rural posting in the Primary Health Centre, Baraul in the district of Gopalganj. Within a space of four months she was made Medical Officer Incharge Leprosy Control Unit, Gopalganj in May 1991 and is said to have continued in the same capacity till 22.1.1994 whereafter she had applied for study leave for doing her post-graduation and accordingly was relieved of her responsibility of the post of Incharge Leprosy Control Unit. Subsequently, after completing her post-graduation, she is said to have continued with her different assignments. 4. The petitioner was however subjected to a departmental proceeding by serving her a memo of charge dated 29.7.2000 for the alleged misconduct and disobedience of the government ORDER :relating to her period of posting as Incharge of Leprosy Control Unit in between 3.7.1991 to 22.1.1993. The memo of charge against the petitioner containing the details of allegations reads as follows:- Þvkjksi fooj.kh %& MkE foHkkf"k.kh izlkn] rRdkyhu fpE inkE] dq"V fuE bZE xksikyxat lEizfr orZeku irk MhE,eElhE,pE njHkaxk us vius inLFkkiu dk;kZy; esa o"kZ 1993&94 esa foHkkxh; i=kad 176 ¼10½ fnukad 27&1&82 esa fu:fir fu;eksa ds foijhr ljdkjh jkf'k dk nq:i;ksx] foHkkxh; fu;eksa dh vogsyuk rFkk vkoafVr jkf'k ls vR;f/kd jkf'k dh nok ,eE,lEMhE dydRrk }kjk b';w Hkkmpj la[;k 31@7@93 ls 5]31]511@&] 5@3@93 ls 2]03]005@&] 13@12@93 ls 1]32]808@&] 7@7@93 ls 3]97]352@& :E dh nok Øs; ,oa izkfIr esa nks"kh izrhr gksrs gSAÞ 5. The petitioner had filed a written statement of defence denying the aforesaid charge wherein her main defence was that she had no experience or training of discharging financial duty and that the procurement of medicine by her was also made at the behest of office of Civil Surgeon whose head clerk had presented the required requisition form of medicine for its being obtained from Medicine Supply Depot (MSD, Kolkata). It is, also very significant to note here that she had categorically denied her signature on 3 out of 4 alleged vouchers and had admitted only her signature on the remaining one voucher mentioned in the memo of charge. 6. A departmental proceeding against the petitioner was thereafter conducted and the Enquiry Officer in his conclusive his finding in the enquiry report dated 27.2.2002 had held her partly guilty in the following words:- Þ40- earO; %& vr,o vkjksi bl gn rd izekf.kr gS fd Ø; laca/kh fu;eksa dh vogsyuk gqbZ] vkoaVu jkf'k ls vR;f/kd jkf'k dh nok dk Ø; ,eE,lEMhE ls djkus dh iwjh i`"BHkwfe vkjksfir }kjk laiUu dh x;hA nokvksa dh izkfIr ds ekeys esa mudk nks"k vkaf'kd gh gSA 41- lkjka'k % vkjksi va'kr% izekf.kr gSAÞ 7. The said enquiry report was supplied to the petitioner by Joint Secretary to the Government in the Department of Health by her letter dated 7.5.2003 in form of a second show-cause notice asking her to explain as to why she be not held guilty for the charge framed against her and to that extent it would be relevant to quote the contents of second show-cause notice which reads as follows:- Þizs"kd] Jhefr ,fy"k m"kk jkuh flag] ljdkj ds la;qDr lfpo lsok esa MkE Jhefr foHkk"k.kh izlkn] rR~dkyhu fpfdRlk inkE] dqE fu;a=.k bdkbZ] xksikyxatA lEizfr fuyafcr] eq[;ky; LokE foHkkx] fcgkj iVukA iVuk] fnukad fo"k; % f}rh; dkj.k i`PNk ds laca/k esaA egk’k;] mi;qZDr fo"k;d lapkyu inkf/kdkjh ls izkIr vf/kxe dh Nk;k izfr layXu djrs gq, funs’kkuqlkj dguk gS fd izekf.kr vkjksi ds vk/kkj ij D;ksa ugha vkidh lsok lekIr dj nh tk;sA vr% vuqjks/k gS fd vki viuk dkj.k i`PNk i= izkfIr ds ,d lIrkg ds vanj v/kksgLrk{kjh dks fuf’pr :i ls miyC/k djkus dh d`ik djsa] vU;Fkk le>k tk;sxk fd bl laca/k esa vkidks dqN ugha dguk gS vkSj ,drjQk fu.kZ; ls fy;k tk;sxkA fo’oklHkktu gE@& ljdkj ds la;qDr lfpoÞ (underlining for emphasis) 8. The petitioner thereafter had filed her reply to second show-cause notice as contained in Annexure 13, whereafter the ORDER :of punishment was passed on 20.3.2006 which reads as follows:- ÞMk0 ¼Jherh½ foHkkf"k.kh izlkn] rRdkyhu fpfdRlk inkE] dq"B fu;a=.k bdkbZ] xksikyxat ¼lEizfr fuyafcr &eq[;ky; }ks=h; mi funs’kd] LokLF; lsok;sa] iVuk izeaMy] iVuk dks dk;kZy;½ dks ,eE,lEMhE ls vfu;ferk ok@jlk;u Ø; djus ds vkjksi esa foHkkxh; vf/klwpuk la[;k 651 ¼18½ fnukad 20-4-99 }kjk fuyafcr djrs gq,] foHkkxh; ladYi fuxZr Kki laE 812 ¼18½ fnukad 29-7-2000 }kjk buds fo:) foHkkxh; dk;Zokgh lapkfyr dh x;hA lapkyu inkf/kdkjh ls izkIr vf/kxe esa vkjksi izekf.kr ik;s x;s] ftldh izfrfyfi ds lkFk foHkkxh; i=kad 114 ¼9½ fnukad 7-5-03 }kjk fd;s x;s f}rh; dkj.k i`PNk dk mRrj leh{kksijkUr vLohd`r djrs gq, MkE ¼Jherh½ izlkn dks ljdkjh lsok ls c[kZkLrxh dk fu.kZ; fy;kA rn~uqlkj mi;qZDr fu.kZ; esa eaf=ifj"kn~ dk vuqeksnu ,oa fcgkj yksd lsok vk;ksx] iVuk ds i=kad 2266 fnukad 31-12-04 }kjk izkIr lgefr ds vkyksd esa MkE ¼Jherh½ foHkkf"k.kh izlkn] fuyafcr fpEinkE eq[;ky; {ks=h; mi funs'kd] LokE lsok;sa] iVuk izeaMy] iVuk dk dk;kZy; dks ljdkjh lsok ls c[kZkLr fd;k tkrk gSA vkns'k vknsf'kr gS fd bl ladYi dks MkE ¼Jherh½ izlkn lfgr lHkh lacaf/krksa dks vko';d dkjZokbZ gsrq Hksth tk;sA fcgkj jkt;iky ds vkns'k ls gE@& vLi"V ¼ij'kqjke feJ½ ljdkj ds mi lfpo Kkikad 9@lEviE&113@03&282 iVuk fnukad 20-3-06 izkfrfyfi v/kh{kd] lfpoky; eqnz.kky;] xqytkjckx] iVuk dks lwpukFkZZ ,oa fcgkj jkti= ds vxys vad esa izdk'kukFkZ izsf"krA ljdkj ds mi lfpo Kkikad 282 ¼9½ iVuk fnukad 20-3-06Þ (underlining for emphasis) 9. Mr. Sinha, learned counsel appearing on behalf of the petitioner while assailing the aforementioned ORDER :of punishment has mainly concentrated on the following issues; (i) The petitioner was not provided with the documents despite demand made by her and as such she was prejudiced in defending herself in the departmental proceeding. (ii) The Enquiry Officer went beyond the scope of the charge in holding the petitioner guilty inasmuch as four specific vouchers which was made subject matter of charge had been sought to be replaced by the Enquiry Officer by taking into consideration some other vouchers without even amending the memo of charge. (ii) The Enquiry Officer went beyond the scope of the charge in holding the petitioner guilty inasmuch as four specific vouchers which was made subject matter of charge had been sought to be replaced by the Enquiry Officer by taking into consideration some other vouchers without even amending the memo of charge. (iii) The charge against the petitioner of violating the circular of the Government dated 27.1.1982 for misappropriation of the government fund was absolutely vague and in fact if the same was read along with the circular in question dated 27.1.1982, it could hardly lead to the conclusion which had been arrived by the Government while inflicting the punishment on her. (iv) The Disciplinary Authority in fact again went beyond the scope of the Enquiry Report inasmuch as even when the Enquiry Officer had held charge against the petitioner to be only partly proved, the ORDER :of punishment from the stage of second show-cause proceeded as if the whole of the charge was proved against the petitioner. (v) The impugned ORDER :of punishment being one thus in part disagreement with the finding recorded by the Enquiry Officer and holding the petitioner guilty for the charge as a whole is in violation of principles of natural justice inasmuch as the petitioner was never given further show-cause notice for such part disagreement. (vi) The impugned ORDER :of punishment is a cryptic ORDER :and does not contain any reason for rejecting explanation offered by the petitioner pursuant to the second show-cause reply. (vii) In any event the ORDER :of punishment by way of major penalty of dismissal of the petitioner from service is not only disproportionate but also in teeth of the finding and recommendation of the Central Bureau of Investigation. 10. Mr. Amish Kumar Jha, learned counsel for the State on the other hand defending the impugned ORDER :of punishment has submitted that once this fact has been admitted by the petitioner that she had sent requisition to M.S.D. for obtaining medicine it would be futile for her to contend that she had not committed the alleged misconduct inasmuch as an Incharge Medical Officer could not have sent such requisition on her own. He has also submitted that there was no fatal procedural infirmity in course of enquiry which could have vitiated the ORDER :of punishment which can not be held disproportionate considering financial loss caused to state exchequer. He has also submitted that there was no fatal procedural infirmity in course of enquiry which could have vitiated the ORDER :of punishment which can not be held disproportionate considering financial loss caused to state exchequer. He has also explained that the opinion or recommendation of C.B.I. of initiating an enquiry against the petitioner for minor punishment was not binding on State Govt. 11. In the considered opinion of this Court the issue as with regard to the charge initially framed against the petitioner being vague is well established from the contents of memo of charge itself. The fact such memo of charge was sought to be expanded by the Enquiry Officer and again by the disciplinary authority in altogether different manner would go to show the charge was vague. Mr. Sinha seems to be correct that the petitioner or any prudent person reading the memo of charge could have only gathered impression that obtaining of medicine from MSD to the tune of Rs.12 lakh and odd by the petitioner was bad because her such an act was in violation of the government circular dated 27.1.1982. His such submission as with regard to the scope of the aforesaid circular dated 27.1.1982 has to be also accepted inasmuch as it is not in doubt that Incharge Medical Officer or any one who is authorized to purchase medicine could make direct requisition from MSD. His such submission as with regard to the scope of the aforesaid circular dated 27.1.1982 has to be also accepted inasmuch as it is not in doubt that Incharge Medical Officer or any one who is authorized to purchase medicine could make direct requisition from MSD. Paragraph 3 of the said circular reading as follows:- ^^Hkkjr ljdkj ds izfr"Bkuksa ,oa ,eE,lEMhE ls vkS"kf/k bR;kfn ;fn izkIr djus ds fy, tks vkns'k Hkstk tk;s] og fucaf/kr Mkd ls Hkstk tk;s vkSj mldh ,d izfrfyfi mi funs'kd] LokLF; lsok,a lkexzh iVuk dks Hkh Hksth tk;s vkSj Mk;jsDVj ,eE,lEMhE dydRrk vkns'k izkIr gksus ij vkS"kf/k bR;kfn dks vkiwfrZ lh/ks dj nsaxsA ;fn vkiwfrZ esa rhu pkj lIrkg ls vf/kd le; ls yxsxk rks os bl lEca/k esa vkns'k@O;kns'k Hkstus okys inkf/kdkjh dks lwfpr djsaxs fd dc mudh vkiwfrZ dj ldrs gS ;k ugha vkSj ;fn dj ldrs gSa rks fdrus fnuksa esaA bl i= dks izfrfyfi os mi funs'kd] lkexzh] iVuk dks Hkh nsaxsA bl izdkj dk i= izkIr gksus ds ckn vkns'k@O;kns'k Hkstus okys inkf/kdkjh fu.kZ; ysaxs fd os bl vkS"kf/k;ka bR;kfn dks djus ds fy, mrus fnu Bgjsaxs ;k mi;qZDr uhfr ds vuqlkj nwljs Jksrksa ls izkIr djus ds fy, dkjZokbZ djsaxsA** clearly envisages that the person concerned can obtain medicine for its being supplied to the patients. 12. Thus the crucial question however would be as to whether such requisition was made by the petitioner on her own or at the instance of the office of the Civil Surgeon and whether submitting such a requisition to the MSD for supply of medicine can itself be said to be a misconduct in terms of government circular dated 27.1.1982 ?. It is however clear from the circular in question that such submission of requisition by itself will not amount to misconduct and therefore when there is nothing else explained in the memo of charge it was really difficult for the petitioner to understand that actually for which part of action she was being accused whether for requisitioning medicine without first making effort to obtain such medicine from establishment of Government of India (central government) or making requisition beyond allotment of fund. To that extent the following finding of the enquiry officer:- Þ28& LFkkfir uhfr ds vuqlkj vkS"kf/k;ksa dk Ø; igys Hkkjr ljdkj ls fd;k tkuk gSa] Hkkjr ljdkj ds izfr"Bkuksa esa nok miyC/k ugha gksus ij ,eE,lEMhE] dydRrk] ls izkIr djus dk vuqns’k gSA bu nksuksa lzksrksa ls ugha izkIr gks ldus ij vkxs rhljs&pkSFks fodYi crk;s x;s gSaA ,slk dksbZ izek.k ugha gS fd vkjksfir us Hkkjr ljdkj ds izfr"Bku ls nok Ø; gsrq dksbZ igy dh FkhA vr% uhfr dk mYya?ku fd;k tkuk izekf.kr gksrk gSAÞ was itself well beyond the scope of memo of charge inasmuch as it was not even remotely alleged in the memo of charge that the petitioner ought to have first made requisition for medicine from the agencies of Government of India and since she had not done so and had straightway submitted requisition to MSD Calcutta for supply of medicine, her such action was contrary to the norms laid down in the government circular dated 27.1.1982. 13. As noted above the complete purchase procedure laid down in the government circular dated 27.1.1982 was capable of being acted upon by different authorities in different manner and so far the petitioner was concerned, she had no direct access or power to approach Government of India agency for supply of medicine. Paragraph no. 3 of the Government Circular dated 27.1.1982 quoted above will also go to show that such requisition was to be made from MSD, Calcutta under the conscious decision with a prior information to the headquarters of the Health Directorate. There is however no allegation in the memo of charge against the petitioner that any portion of instructions contained paragraph 3 of the circular was in any way infringed and in fact the memo of charge also does not give any inkling to this extent. The Enquiry Officer as noted above had held the petitioner guilty only for this part of the violation of the government circular namely she did not approach the agency of the Govt. of India before sending her requisition to M.S.D. when this aspect was not at all even remotely mentioned in the memo of charge. 14. The Enquiry Officer as noted above had held the petitioner guilty only for this part of the violation of the government circular namely she did not approach the agency of the Govt. of India before sending her requisition to M.S.D. when this aspect was not at all even remotely mentioned in the memo of charge. 14. Yet again this Court would find that when nothing specific was mentioned about the amount of allotment, the petitioner could not have been expected to defend herself as with regard to allegation in the memo of charge of making requisition of medicine beyond allotment of fund. All that could have been understood by the petitioner that she had to explain requisition of medicine worth Rs. 12,81,676/- by four requisitions but how that was beyond allotment and for what amount if any having been not mentioned, the petitioner could not have satisfactorily explained this part of cheque. 15. The whole aspect of vagueness of charge therefore is writ large on the face of record and in fact the same is also established from the fact that the charge as framed and the finding arrived by the Enquiry Officer are itself absolutely at variance. It has to be kept in mind that even when the Enquiry Officer was satisfied with three of the four requisitions/issue vouchers for a sum of Rs.2,03,005/-, 1,32,808/- and 3,97,352/- as specifically mentioned in the memo of charge were not in the pen and signature of the petitioner and therefore also not admitted by her, even then he has gone to hold the petitioner guilty by taking into account some other issue vouchers/requisitions for different amount which were not subject matter of memo of charge. To that extent the finding of the Enquiry Officer without amending the memo of charge by taking into account some other requisitions/issue vouchers will itself go to show that the charges were vague and infact incorrect. To that extent the finding of the Enquiry Officer without amending the memo of charge by taking into account some other requisitions/issue vouchers will itself go to show that the charges were vague and infact incorrect. Infact the Enquiry Officer traveling beyond the scope of charges and issue vouchers mentioned therein had held that:- Þ31& fo'ys"k.k % vkjksfir inkf/kdkjh us pkj O;kns'kksa ij gLrk{kj fd;s tkus dh ckr dks Lohdkj fd;k gSA tks pkj b';w Hkkmpj ;k muls lacaf/kr nLrkost izLrqr gq;s gSa] mudk vkjksfir }kjk fd;s x;s rhu O;kn'kksa ls lacaf/kr gksuk Hkh i;kZIr :Ik ls izekf.kr gSA vkjksfir us ,d fcanw ;g mBk;k gS fd vkjksi i= esa pkj b';w okmpj dk ftØ gS blesa ls rhu b';w okmpj ls lacaf/kr dksbZ dkxtkr nkf[ky ugha fd;k x;kA dk;Zokgh izkjaHk gksus vkSj lquokbZ ds chp vU; rhu b';w okmpjksa ds dkxtkr yk;s x;s gSaA vius bl dFku dks mUgksaus fdlh Li"V rdZ ;k ekax ds :i esa ifjos'k ugha fd;k gSA laHkkfor vk'k; ;gh gks ldrk gS fd muds dFkukuqlkj ckn esa lk{;ksa ds :i esa izLrqr fd;s x;s rhu b';w okmpj] ;Fkk 122@4@94, 118@5@94 ,oa 110@12@94 dks xzg.k ugha fd;k tk;s] D;ksafd os vkjksi i= esa of.kZr ugha gSA blds flok cpko ds c;ku ,oa lquokbZ esa fn;s x;s bl rdZ dk vksj dksbZ iz;kstu ugha fn[krk gSAÞ 16. It, thus, becomes clear that vague memo of charge gave sufficient amplitude to the Enquiry Officer to travel beyond the memo of charge who had gone to hold the petitioner guilty even in respect of such allegation which was not part of the memo of charge. The law however is well settled that a charge sheet should disclose with adequate clarity and precision the charge leveled against the employee and the requirement is one of the essential adjuncts of the concept of a reasonable and adequate opportunity of defending oneself. Reference in this connection may be usefully made to the JUDGMENT :s of Apex Court in the case of Suresh Chandra Chakraberty Vs. State of West Bengal reported in A.I.R. 1971 S.C. 752, Swami Singh Vs. State of Rajasthan reported in A.I.R. 1986 S.C. 995 and Deputy Inspector General of Police Vs. K.S. Swaminathan reported in (1996) 11 S.C.C. 498 . The submission of Mr. State of West Bengal reported in A.I.R. 1971 S.C. 752, Swami Singh Vs. State of Rajasthan reported in A.I.R. 1986 S.C. 995 and Deputy Inspector General of Police Vs. K.S. Swaminathan reported in (1996) 11 S.C.C. 498 . The submission of Mr. Jha, learned counsel for the State that since the petitioner had participated in the enquiry she cannot be allowed to assail the memo of charge on any ground including its being vague cannot be accepted by this Court inasmuch as mere participation of the delinquent in the enquiry would not exonerate the department to bring home the charge and therefore such participate would not confer to the validity of proceedings based on vague charges as was infact held by the Apex Court in the case of Sawai Singh (supra). 17. The plea of Mr. Sinha, as with regard to non-supply of documents prejudicing the petitioner in the submission of her written statement of defence and in course of enquiry also has sufficient force inasmuch as the petitioner on receipt of memo of charge had specifically made demand of five documents namely; ^^dkxtkrksa dh lwph 1- {ks=h; funs'kd] LokLF; lsok,a] lkj.k izeaMy] Nijk ds i=kad 54 fnukad 27-1-97 ds lkFk yxk gqvk lkjk vuqyXudA 2- vuqcU/k ls of.kZr ,eE,lEMhE dydRrk }kjk izkIr lHkh b';w Hkkmpj dh izfrA 3- nokvksa ds ewY; dh lwphA 4- fpfdRlk inkf/kdkjh ds }kjk O;kns'k djus ls lacaf/kr vf/kdkj ,oa drZO;ksa ds fu"iknu ls lacaf/kr dkxtkrsa rFkk O;kns'k djus dh fu;ekoyhA 5- foHkkxh; i=kad& 176@10@fnukad 27-1-82 dh Nk;kizfrA mijksDr dkxtkrksa ds miyC/k gksrs gh eSa viuk cpko C;ku rqjUr lefiZr dj nwaxhA** 18. It is true that the petitioner had thereafter submitted her written statement of defence denying the charge even without supply of any of the aforementioned five documents but when this aspect was raised by the petitioner before the Enquiry Officer, the Departmental Enquiry Commissioner, he had rejected the same on the plea of there being no prejudice to her holding that if the issue vouchers mentioned in the memo of charge was not referable to the petitioner and other relevant issue vouchers were brought on record in course of proceeding that would not make any difference in the nature of misconduct alleged against the petitioner. It is thus clear that the finding therefore recorded in paragraph 31 and 32 of the Enquiry Report is based on such documents which was not even made subject matter of charge or the copy thereof was also not supplied to the petitioner at the time of submission of her written statement of defence. Such documents being extraneous materials and not referable to the memo of charge could not have been taken into consideration as the memo of charge was never amended. It is thus more than clear that the petitioner was also gravely prejudiced also on account of non-supply of documents. It has been a long standing rule of natural justice that if any relevant material is not disclosed in the memo of charge, then the decision making process would be vitiated. Procedural fairness in departmental proceedings demands proper disclosure of materials to be used against the delinquent. Reference in this connection may be usefully made to the JUDGMENT : of Apex Court in the case of State of Punjab Vs. Bhagal Ram reported in A.I.R. 1974 S.C. 2335, and Kashi Nath Dikshita Vs. Union of India reported in A.I.R. 1986 S.C. 2118. 19. Once this aspect becomes clear that the Enquiry Officer had also proceeded to examine certain other three issue vouchers, which were not made subject matter of charge, there would be no difficulty in holding that the Enquiry Officer had also travelled beyond the scope of charge and had gone to hold the petitioner even partly guilty in respect of such allegations for which she was never sought to be proceeded by the Government. The brief of the Enquiry Officer in course of a departmental proceeding is absolutely confined to the memo of charge alone and he cannot make any improvement even by amending the charge or substituting the nature of allegation on his own. Here in the present case, when the memo of charge had specifically disclosed the number and date of issue vouchers with the amount, the Enquiry Officer could not have gone beyond those issue Vouchers by looking any other vouchers for the purposes of holding the petitioner partly guilty. 20. Mr. Here in the present case, when the memo of charge had specifically disclosed the number and date of issue vouchers with the amount, the Enquiry Officer could not have gone beyond those issue Vouchers by looking any other vouchers for the purposes of holding the petitioner partly guilty. 20. Mr. Mukul Sinha, learned counsel for the petitioner also seems to be correct in pointing out that the Disciplinary Authority had also gone beyond the scope of the findings recorded by the Enquiry Officer and had gone to hold the petitioner guilty even for such charges which was not found to be proved in course of enquiry by the Enquiry Officer. The finding of the Enquiry Officer was specific that charge against the petitioner was proved only in part to the extent of violation of the circular of the State Government leading to furnishing a background for purchase of medicine of an excessive amount beyond the allotment. It thus becomes clear that that the Enquiry Officer had found the charges only partly proved against the petitioner but when the Disciplinary Authority had either issued the second show-cause notice or had gone to pass the ORDER :of punishment as shown in the underlined portion thereof it has proceeded as if the whole charge against the petitioner was proved. 21. It has to be noted that the charge against the petitioner was that she had herself misappropriated the government amount by flouting the Government Circular dated 27.1.1982 and had gone to make purchase and also receive medicine from MSD beyond the amount of allotment to the tune of Rs. 12,86,676/- lakhs by forged vouchers. The Enquiry Officer however did not hold the petitioner guilty either of misappropriation or misuse of the Government amount and had only found the petitioner to have furnished a base for purchase of medicine by submitting requisition to M.S.D. He had also not found the petitioner guilty either for purchase of medicine or its receipt. In such a situation, if the Disciplinary Authority had found it necessary to inflict punishment for the charge originally framed against the petitioner, it was incumbent on its part to record the difference of opinion with the finding of the Enquiry Officer and communicate the same to the petitioner before proceeding to inflict punishment on her. In such a situation, if the Disciplinary Authority had found it necessary to inflict punishment for the charge originally framed against the petitioner, it was incumbent on its part to record the difference of opinion with the finding of the Enquiry Officer and communicate the same to the petitioner before proceeding to inflict punishment on her. The law in this regard also stands settled by a number of JUDGMENT : of Apex Court and this Court. Reference in this connection may be usefully made to the JUDGMENT : of the Apex Court in the case of Punjab National Bank & Ors vs. Kunj Bihari Misra, reported in (1998) 7 SCC 84 . 22. Thus, the Disciplinary Authority without giving notice and disclosing the reasons for recording difference of opinion with the Enquiry Report could not have held the petitioner guilty for the charge as a whole, as is apparent from the reading of the impugned ORDER :of punishment. In fact, the ORDER :of punishment to that extent is also a non-speaking ORDER :as it does not even consider any of the pleas raised by the petitioner in her second show-cause reply wherein she had specifically raised this aspect in paragraph 16 and 17 in her detailed 21 pages reply containing 23 paragraphs. The impugned ORDER :, however, does not take into notice any of such pleas raised by the petitioner and the same in one word was held to be 'unsatisfactory' for inflicting on her the most severe punishment of dismissal from service. 23. As noted above, the ORDER :of punishment in the present case was not passed by way of concurrence with the findings of the Enquiry Officer inasmuch as the Enquiry Officer had never held the petitioner guilty for the charge framed against him. In that context, if the Disciplinary Authority had sought to differ by holding that the whole of the charge against the petitioner was proved, the minimum requirement of principle of natural justice was that the plea raised by the petitioner in her second show-cause reply ought to have been taken into consideration by either accepting or rejecting and recording reasons in the impugned ORDER :. Mere issuance of show-cause or second show-cause in such circumstances would not be sufficient as was held way back in the Constitution Bench JUDGMENT : of the Apex Court in the case of State of Assam & Another vs. Bimal Kumar Pandit, reported in AIR 1963 SC 1612 . The Apex Court had in the said JUDGMENT : has classified three types of Enquiry Report and the actions to be taken thereon by the Disciplinary Authority. The first one could be where the charge as a whole was proved and the Disciplinary Authority had gone to accept such finding of the Enquiry Officer. In that case, the Apex Court had held that there was no requirement of recording reasons beyond holding that the reasons given by the Enquiry Officer were also accepted by the Disciplinary Authority. The Apex Court thereafter had found second type of cases where part of the charge was proved and part of the charge was not proved, recording of reasons in this category was held to be necessary by affording an opportunity of hearing at least in respect of the charges of which the Enquiry Officer had not held the delinquent guilty. The third type of cases where the Enquiry Officer had exonerated the delinquent from the charges was of course held to be those type of cases where recording of reasons by way of rejecting the show-cause reply pursuant to second show-cause on the ground of difference of opinion was held to be mandatory. 24. In the present case, the ORDER :of punishment was passed without recording any difference of opinion and infact was based on the basis of findings in the Enquiry Report itself. That by itself would lead to an irresistible conclusion that the Disciplinary Authority had not even applied its mind to the facts of the case of the petitioner and was simply overawed by volume of MSD Scam wherein admittedly the government had lost substantial amount on account of misconduct of certain medical officers and controlling officers. 25. That by itself would lead to an irresistible conclusion that the Disciplinary Authority had not even applied its mind to the facts of the case of the petitioner and was simply overawed by volume of MSD Scam wherein admittedly the government had lost substantial amount on account of misconduct of certain medical officers and controlling officers. 25. In this context this Court would also find that for the same misconduct a preliminary enquiry was conducted by the Central Bureau of Investigation (C.B.I.) in which the role of the petitioner was also examined and the CBI had found no clue as with regard to any criminal misconduct on the part of the petitioner, and had only recommended for taking action against the petitioner by way of departmental proceeding for a minor punishment. It was thus all the more necessary for the disciplinary authority to adopt a conscious approach before passing the ORDER :of major punishment by way of her dismissal from service. Specially the charge against the petitioner in the report of Enquiry Officer was found to be proved only in part confined to the extent of violating the norms of purchase of medicine laid down in the Government Circular dated 27.1.1982. 26. In this context even when the petitioner has brought on record the specific recommendation of CBI contained in the letter of DIG, CBI Patna Region dated 9.12.2004 addressed to the Chief Secretary of the Government of Bihar wherein the said authority had after examined the role of a number of doctors and other officers of the Health Department while making the following recommendation; “9. You, are further, requested to initiate Regular Departmental Action for Major Penalty proceedings against Sri Surendra Kr. Dubey (A-6), the then Store Keeper, CS Office, Gopalganj and ACMO, Gopalganj; Sri Sheo Shankar Prasad (A-12), the then Head Clerk-cum-Store Keeper, Leprosy Control Unit, Gopalganj; Dr Shasi Shekhar Singh (A-13), the then MOIC, Distt. T. B. Centre, Gopalganj; Sri Birendra Kumar Pandey (A-14), the then Store Keeper, Distt. T. B. Centre, Gopalganj; Minor Penalty proceedings against Dr. (Smt.) Vibhasini Prasad (A-11), the then MOIC, Leprosy Control Unit, Gopalganj and Such Action as deem fit against Dr. N. P. Saha (A-1), the then CS, Gopalganj and ACMO, Gopalganj, Dr. A. P. Mishra (A-2), the then CS, Gopalganj and Supdt. T. B. Centre, Gopalganj; Minor Penalty proceedings against Dr. (Smt.) Vibhasini Prasad (A-11), the then MOIC, Leprosy Control Unit, Gopalganj and Such Action as deem fit against Dr. N. P. Saha (A-1), the then CS, Gopalganj and ACMO, Gopalganj, Dr. A. P. Mishra (A-2), the then CS, Gopalganj and Supdt. Sadar Hospital, Gopalganj; Sri Giridhar Prasad (A-4), the then Head Clerk, CS Office, Gopalganj; Sri BBN Tiwary (A-5), the then Store Keeper, CS Office, Gopalganj; Sri Suresh Kumar Verma (A-7), the then Head Clerk, Sadar Hospital, Gopalganj; Sri Govind Bihar Srivastava (A-8), the then Store Keeper, Sadar Hospital, Gopalganj; Dr. R. D. Singh (A-9), the then Supdt., Sadar Hospital, Gopalganj; Sri Ganesh Pd. Sah (A-10), the then Head Clerk, Sadar Hospital, Gopalganj; Dr. B. P. Gupta (A-19), the then CS, Gopalganj & Sri Ramashray Ram (A-25), the then Head Clerk, ACMO, Gopalganj.” the same has been conveniently denied in the counter affidavit by suggesting that the CBI had actually recommended for punishment by way of dismissal of the petitioner from service, as would be apparent from paragraph 5 of the counter affidavit reading as follows:- “5. That for the above grave charges a departmental proceeding was initiated against the petitioner. The enquiry officer submitted his report on 27.7.02 in which the charges against the petitioner regarding financial irregularities and disobedience of departmental Circular No. 176 (10) dt.-27.1.82 were proved. The petitioner was named in the M.S.D. Scan and her case has been taken over by the C.B.I. for Investigation. The C.B.I. found major irregularities in the investigation of such scam. Thus on the recommendation of Enquiry Officer as well as of the C.B.I. the proposal for punishment by way of dismissal of the petitioner was approved by the B.P.S.C. and after the approval of Cabinet the said resolution has been issued.” 27. It thus becomes clear that even on the basis of recommendation of CBI the petitioner ought not to have been inflicted major punishment and when this aspect was raised by the petitioner in paragraph 29 of the writ petition in following terms:- “29. It thus becomes clear that even on the basis of recommendation of CBI the petitioner ought not to have been inflicted major punishment and when this aspect was raised by the petitioner in paragraph 29 of the writ petition in following terms:- “29. That it is very important to note that the matter relating to supply of medicines all over the state by the M.S.D. Kolkata vis-a-vis the role of different doctors had acquired the nature of a sort of scam and was subject matter of investigations by the Central Bureau of Investigation (CBI) which included the supply relating to the present leprosy control unit, Gopalganj no evidence regarding involvement of petitioner was found during the course of investigation by the C.B.I. Accordingly, the C.B.I. in its report recommended for minor penalty so far this petitioner is concerned, in view of very minor nature of guilt. The report was sent to the government vide letter dated 9.12.2004.” the answer thereto has been given in paragraph 10 of the counter affidavit in the following manner:- “10. That with regard to paragraph-29,35,36,37 and 38 of the writ application, it is stated and submitted here that the C.B.I. has found the petitioner guilty and recommended for initiating departmental proceeding for major penalty against the petitioner. Rule 18 of C.C.A. Rules 2005 provides that the disciplinary authority has power to award quantum of punishment. The disciplinary authority has examined all the materials and only thereafter the ORDER :of dismissal dt.20.3.06 was passed. No any authority is empowered to decide quantum of punishment awarded against the petitioner.” 28. It thus becomes clear that if there was any other recommendation of the CBI beyond dated 9.12.2004, the same should have been brought on record in the counter affidavit. The pleading in the writ petition and the counter affidavit capable of being supported by a document has to be furnished by the concerned authorities and in absence thereof an adverse interference has to be drawn as was laid down by the Apex Court in the case of Bharat Singh and others Vs. The pleading in the writ petition and the counter affidavit capable of being supported by a document has to be furnished by the concerned authorities and in absence thereof an adverse interference has to be drawn as was laid down by the Apex Court in the case of Bharat Singh and others Vs. State of Haryana and others reported in 1988 S.C. 2181:- "When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondents, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the Civil P.C. and a writ petition of a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.". 29. This Court is therefore satisfied that Disciplinary Authority has proceeded in a mechanical manner and basically on its own assumption that since on some of the vouchers there were signature of the petitioner and there was a government circular with regard to procurement of medicine, the action of the petitioner by itself was unwarranted. The Disciplinary Authority in fact has failed to analyse that procurement of medicine by the Incharge Medical Officer of Dispensary or Unit was the part of exercise of official duty and if any procedural infirmity was committed by such an officer, the same had to be viewed in the backdrop of the job, duty and responsibility assigned to such officer. In the present case, the petitioner hardly with a service of three years was made incharge of Leprosy Unit and was functioning under direct control of Civil Surgeon. In the present case, the petitioner hardly with a service of three years was made incharge of Leprosy Unit and was functioning under direct control of Civil Surgeon. Therefore, if the petitioner had made certain requisition which was to be countersigned by the Civil Surgeon before its being sent to MSD, Kolkata and the said requisitions were directly sent to MSD, Kolkata without signature of Civil Surgeon by the Head Clerk of the Civil Surgeon's office the same could not have been honoured by the MSD unless there was someone in the MSD, Kolkata who had also flouted the same government instruction. In that regard, neither the Civil Surgeon nor any one from MSD, Calcutta has been examined in course of departmental proceeding so as to suggest that it was the petitioner who had made requisition, also gone with it to Kolkata and had procured the medicine by herself for making for her own pecuniary gain. The Government Circular as noted above does not lay down such a procedure where medicine could be supplied straight way on a requisition made by the Incharge Medical Officer and therefore even if it be accepted that the petitioner had signed and sent requisition to M.S.C. the same by itself would not amount to misconduct in terms of Government Circular dated 29.1.1982. 30. In that view of the matter, this Court is of the considered opinion that there is complete lack of conscious application of mind to the facts of the case of the petitioner before passing the ORDER :of punishment and to that extent this Court would find that even if the charge against the petitioner to the extent it was found to have been proved by the Enquiry Officer is accepted that could not warrant an ORDER :of major punishment. It is true that the doctrine of proportionality by way of judicial review of an ORDER :of punishment has to be exercised by a writ court only by way of applying the principle of balancing test and necessity test but then if the ORDER :of the punishment as with regard to the misconduct alleged would be wholly disproportionate to the misconduct alleged, the writ court can definitely direct the Disciplinary Authority to reconsider its decision as with regard to inflicting punishment. Reference in this connection may be made to the following passage the JUDGMENT : of the Apex Court in the case of Coimbatore District Central Cooperative Bank vs. Coimbatore District Central Cooperative Bank Employees Assn. and Anr., reported in (2007) 4 SCC 669 which reads as follows:- “34. As observed by this Court in M.P. Gangadharan vs. State of Kerala the constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. The Court observed that we are not unmindful of the development of the law that from the doctrine of “wednesbury unreasonableness”, the court is leaning towards the doctrine of “proportionality’. But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the act was enacted.” 31. Thus, this court would not like to substitute its own opinion as with regard to quantum of punishment against the petitioner but then for the reasons recorded above it would definitely find the case of the petitioner good enough for issuance of a direction to the disciplinary authority to reconsider the matter from the stage of submission of Enquiry Report in the light of findings recorded in this JUDGMENT : as also in view of recommendation made by the CBI in the letter dated 9.12.2004, for initiating a departmental proceeding only for a minor punishment against the petitioner. The Disciplinary Authority also must confine its consideration only to the four issue vouchers specifically mentioned in memo of charge and if three of them were not related to the petitioner, its decision to inflict punishment on the petitioner if any, must be completely restricted to the sole admitted issue voucher dated 31.7.1993 for Rs. 5,31,511/-. 32. That being so, the impugned ORDER :of punishment dated 20.3.2006 as contained in Annexure- 1 is hereby quashed and the matter is remitted back to the State Government for reconsidering the matter from the stage of submission of enquiry report in the light of observations and findings recorded above. 33. 5,31,511/-. 32. That being so, the impugned ORDER :of punishment dated 20.3.2006 as contained in Annexure- 1 is hereby quashed and the matter is remitted back to the State Government for reconsidering the matter from the stage of submission of enquiry report in the light of observations and findings recorded above. 33. Since the petitioner has remained out of service for a period of more than four and an half years, the necessary exercise in this regard must be completed by the State Government within a period of six months from the date of receipt/production of a copy of this ORDER :. It is made clear that any financial benefit to the petitioner will of course abide by such fresh decision of the State Government. 34. This writ application is, accordingly, allowed only to the extent indicated above. There would be, however, no ORDER :as to costs.