ORDER Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “1. That, this is an application praying for issuance of a writ in the nature of certiorari or any other appropriate writ, order or direction for quashing the show-cause notice issued from the directorate Agriculture under the hand of the Agriculture Director as contained under letter No. 2495 dated 27.12.2011 whereby and where under the petitioner has been asked to file show-cause as to why he be dismissed from service in an action contemplated under the provisions of Rule-14, Sub-Rule 11 of the Bihar Govt. Servant (Classification, Control and Appeal) Rules 2005 inter-alia the following :- RELIEFS (i) Respondents action in issuance of the show-cause notice after the conclusion of the departmental proceeding and inflicting of the punishment by the Disciplinary Authority so within the period of statutory appeal be deprecated and declared as illegal, arbitrary and without any sanction of law and accordingly be set-aside. (ii) Respondents concerned be directed to refrain from their aforesaid illegal act of witch hunting with a view to victimize the petitioner for whatever reasons only known to the concerned respondents. (iii) Erring respondents be sternly dealt with for their misdeed and misdemeanor. (iv) Respondents be directed to grant all the consequential benefits to the petitioner.” 3. During pendency of this writ application, the respondents have also passed an order of punishment dated 13.3.2012 which has been assailed by filing I.A. No. 6936 of 2012. In view of the fact that such order of punishment is in furtherance of the impugned show-cause notice assailed in the main writ application, the prayer of the petitioner for some of the additional relief by way of also quashing the punishment order dated 13.3.2012 is allowed. I.A. No. 6936 of 2012 shall be treated to be part of the main writ application. 4. Mr. Sanjay Kumar Verma, learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that from the impugned order it would be clear that the petitioner has been compulsorily retired by treating him “Dead Wood”. He has explained that in such cases the authorities were at least required to follow the provision of Rule 74 of the Bihar Service Code wherein compulsory retirement in public interest can be ordered only after examining the entire service record. He has explained that in such cases the authorities were at least required to follow the provision of Rule 74 of the Bihar Service Code wherein compulsory retirement in public interest can be ordered only after examining the entire service record. In this regard, he has also submitted that barring the present episode of criminal case and the consequential departmental proceeding, the services records of the petitioner were absolutely clean and, therefore, on the basis of service record of the petitioner, he could not have been compulsorily retired from service in terms of Rule 74 of the Bihar Service Code. 5. He has also submitted that as a matter of fact, when the petitioner was already given major punishment by the Disciplinary Authority, the Joint Director, Agriculture by the order dated 26.8.2011, the exercise of revisional power by the Director that too without fulfilling the requirement of Rule 28 of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 cannot be supported either on fact or in law. In this regard, he has also pointed out that there is an apparent error in the foundational fact recorded in the show-cause notice, inasmuch as, the Enquiry Officer had never found charge nos. 1 & 4 to have been proved against the petitioner and yet the Director of Agriculture had also based the impugned order on them (Charge Nos. 1 & 4) which would itself vitiated the impugned order on account of its being based on nonest and non existent facts. Finally, he has also submitted that the undue hurry shown by the Director, Agriculture in passing the impugned order while this writ application against the impugned show cause was pending before this Court cannot be appreciated as the respondents have infact tried to overreach this Court. 6. In the considered opinion of this Court the Respondents have not acted fairly in passing the impugned order of compulsory retirement of the petitioner. It has to be noted that the present writ application came to be filed on 23.1.2012 against the show cause notice dated 27.12.2011 and this Court by its order dated 21.02.2012 had allowed the prayer of the learned counsel for the State to file a counter affidavit within a period of three weeks and instead of filing the counter affidavits within three weeks i.e. by 12.3.2012, the impugned order of compulsory retirement was passed on 13.3.2012. The Respondents ought to have infact first filed their counter affidavit and having obtained leave of this Court could have proceeded to pass final order or the matter had become subjudice. 7. In this case as a matter of fact the petitioner had filed the writ application on 23.1.2012 assailing the show-cause notice itself on different grounds. As a matter of fact, when the respondents had taken time from this Court on 21.2.2012 seeking adjournment for filing of the counter affidavit, this much courtesy should have been shown by them to this Court by obtaining leave for passing the final order. Having not done so they have actually committed contempt as was held by the Apex Court in the case of Pratap Singh Vs. Guru Baksha Singh reported in AIR 1962 SC 1172 , relevant portion whereof reads as follows:- "............ There are many ways of obstructing the Court and "any conduct by which the course of justice is perverted, either by a party or a stranger, is a contempt, thus the use of threats, by letter of otherwise, to a party while his suit is pending, or abusing a party in letters to persons likely to be witnesses in the cause, have been held to be contempts." (Oswald's Contempt of Court, 3rd Edn., P.87). The question is not whether the action in fact interfered, but whether it had a tendency of interfere with the due course of justice. The action taken in this case against the respondent by way of a proceeding against him can, in our opinion, have only one tendency, namely, the tendency to coerce the respondent and force him to withdraw his suit or otherwise not press it. If that be the clear and unmistakable tendency of the proceedings taken against the respondent, then there can be no doubt that in law the appellants have been guilty of contempt of Court." 8. It has to be also noted that since the petitioner had already filed his writ application, there was definitely no need for him to file show-cause reply and if the petitioner could not place his case before the authority and the impugned order was passed without considering his defence, the same also becomes violative of principle of natural justice. It has to be also noted that since the petitioner had already filed his writ application, there was definitely no need for him to file show-cause reply and if the petitioner could not place his case before the authority and the impugned order was passed without considering his defence, the same also becomes violative of principle of natural justice. It is true that there was no order of stay by this Court but as noted, the matter had become subjudice and the respondents in all fairness had to refrain from passing the impugned order. 9. On merits of the impugned order Mr. S.D. Sanjay, learned AAG-12 appearing on behalf of the State, has submitted that the impugned order of compulsory retirement of the petitioner so far it uses the expression of “Dead Wood” is a superficial expression inasmuch as if the same is read carefully as a whole, it would be clear that the same was passed by the Director, Agriculture in exercise of his powers under Rule 14(9) of the Bihar Government Servant (C.C.A.) Rules 2005 which authorizes an authority to pass an order of compulsory retirement by way of punishment. In this regard, he has also referred to an explanation of Rule 14 to submit that whereas an order passed by way of compulsory retirement under Rule 14(9) of the 2005 Rules is an appealable order, the order of compulsory retirement on any public interest in terms of Rule 74 of the Bihar Service Code is not appealable and in fact is not even a punishment. His whole stress, therefore, has been that when the petitioner was subjected to an order of compulsory retirement it was by way of punishment passed by the Director, Agriculture, in terms of Rule 28 of the 2005 Rules. 10. This Court having noticed the expression “Dead Wood” in the impugned order had also called for the original record. Mr. Sanjay, having produced the records has conceded that there was no question of considering the entire service record for the purpose of passing the order of compulsory retirement against the petitioner in terms of Rule 74 of the Bihar Service Code, inasmuch as, such exercise of power was made strictly in terms of Rule 14(ix) of the 2005 Rules. 11. Sanjay, having produced the records has conceded that there was no question of considering the entire service record for the purpose of passing the order of compulsory retirement against the petitioner in terms of Rule 74 of the Bihar Service Code, inasmuch as, such exercise of power was made strictly in terms of Rule 14(ix) of the 2005 Rules. 11. In view of the fact that the respondents have found themselves to be in difficult situation for justifying the use of the word “Dead Wood” in the order of punishment, their plea for treating the order of one by way of punishment in terms of Rule 14(ix) has to be understood and in fact also accepted with a caveat that if the authority was mindful of exercising of his revisional power in terms of Rule 28 of the 2005 Rules, there was no need for him to hold that the petitioner had become “Dead Wood” as was recorded by him in the impugned order dated 13.3.2012 relevant part where of reads as follows:- ^^mijksDr of.kZr rF;ksa ls Li"V gS fd Jh jke }kjk fd;s x, ljdkjh jkf'k ds xcu] lapkyu inkf/kdkjh ds tkap izfrosnu esa izekf.kr vkjksiksa ,oa f}rh; dkj.k i`PNk dk tokCk ugha fn;k tkuk fcgkj ljdkjh lsod vkpkj fu;ekoyh&1976 ds fu;e&3 esa fufgr izko/kkuksa ds loZFkk izfrdwy gSA buds bl d`R; ls foHkkx ,oa fcgkj ljdkj ds Nfo /kwfey gqbZ gSA bl izdkj ds vkpj.k okys dehZ ljdkjh lsok esa jgus ds ;ksX; ugha gSA rFkk ljdkj ds fy, Dead Wood gks x;s gSA vr% fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh 2005 ds Hkkx& V fu;e 14 (ix) ds rgr yksdfgr esa Jh ghjkyky jke] ¼firk&Lo0 lgnso jke] xzke&lyseiqj] egknsok] iks0&floku Fkkuk&floku] ¼eqIQfly½ ftyk&floku½ fyfid] dk;kZy;] la;qDr d`f"k funs'kd] lkj.k izeaMy] Nijk dks i= fuxZr dh frfFk ls vfuok;Z lsok fuo`r fd;k tkrk gSA** 12. This Court, however having regard to the defence taken by the respondents that the power used by the respondents for ordering compulsory retirement of the petitioner was one in accordance with Rule 14 (ix) of the 2005 Rules and not in terms of Rule 74 of the Bihar Service Code, would accept this part of the submission of Mr. Sanjay and would proceed to test the validity of the impugned order on the other grounds as well. 13. Sanjay and would proceed to test the validity of the impugned order on the other grounds as well. 13. Admittedly, the Enquiry Officer had not very clearly held the charge no.1 and charge no.4 to be proven and at least there was no finding to that effect in his enquiry report. The facts mentioned in paragraph no.1 to 4 of enquiry report does not make the charge nos. 1, 2 & 3 proved. As a matter of fact, there were only three charges against the petitioner in the original enquiry charge-sheet which was sought to be supplemented by three additional charges in supplementary charge-sheet. The Enquiry Officer has recorded that with regard to charge nos. 1, 2 & 3, he had found charge nos. 2 & 3 to have been proven whereas in charge no.1, the complicity of the petitioner along with District Agriculture Officer was also noticed. Nonetheless, as with regard to the charge no.1, there was no clear finding and in fact the complicity alone of the petitioner was recorded in the fraudulent withdrawal. If, therefore, the revisonal authority wanted to rely on the finding of the charge no.1 as well for enhancing the punishment of the petitioner, he had to give some more specific reasons instead of making mere editorial of charge no.1 for holding that the same had been proved. 14. This Court while holding that the Director, Agriculture had the power to revise the order of punishment passed by the disciplinary authority it must also clarify that such order is hedged by a clear condition requiring the delinquent of being given a reasonable opportunity by making a representation. Rule 28 of the Bihar Government Servant (Classification Control and Appeal) Rules in this regard reads as follows:- "28. Revision- (1) Notwithstanding anything contained in these rules:- (i) the Government, or (ii) the head of a department directly under the Government, in the case of a Government servant serving in a department or office, under the control of such head of a department, or (iii) the appellate authority, or (iv) any other authority specified in this behalf by the Government by a general or special order, and within such time as may be prescribed in such general or special order. may at any time within six months of the date of the order proposed to be revised, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these Rules or under the Rules repealed by the rule 32 (from which an appeal is allowed but from which no appeal has ben preferred or from which no appeal is allowed), after consultation with the Commission where such consultation is necessary, and may- (a) confirm, modify or set aside the order, or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or (c) remit the case to the authority, making the order or to any other authority, directing such authority, to make such further inquiry as he may consider proper in the circumstances of the case, or (d) pass such other orders as it may deem fit; Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses(vi) to (x) of rule-14 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, no such penalty shall be imposed without an inquiry in the manner laid down in rule-17 and after giving a reasonable opportunity to the government servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Commission where such consultation is necessary; Provided further that no power of revision shall be exercised by the head of department, unless- (i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred. -is subordinate to him. (2) No proceeding for revision shall be commenced until after (i) the expiry of the period of limitation for an appeal or (ii) the disposal of the appeal, where any such appeal has been preferred. (3) An application for revision shall be dealt with in the same manner as if it were an appeal under these Rules." (underlining for emphasis) 15. (3) An application for revision shall be dealt with in the same manner as if it were an appeal under these Rules." (underlining for emphasis) 15. In view of above the true test for exercise of power of review/revision in terms of Rule 28 would be as to whether the petitioner was given a reasonable opportunity? The impugned show cause notice dated 27.12.2011 issued to the petitioner in this regard read as follows:- ^^d`f"k funs'kky;] fcgkj i= la[;k&8@LFkk0¼xks0½&33@11 2495@d`0 iVuk] fnukad 27 fnlEcj 2011 izs"kd] vjfoUnj flag] Hkk0i0ls0] d`f"k funs'kd] fcgkj] iVukA lsok esa] Jh ghjkyky jke ¼fyfid½ la0 d`0 fu0 dk;kZy; lkj.k Nijk fo"k;& dkj.k i`PNk ds laca/k esA egk'k;] mi;qZDr fo"k;d funs'kkuqlkj dguk gS fd la;qDr d`f"k funs'kd] lkj.k izeaMy Nijk ds Kkikad&66¼xks0½ fnukad 26-08-11 dh leh{kk dh x;h leh{kksijkUr ik;k x;k fd la;qDr d`f"k funs'kd] lkj.k izeaMy] Nijk }kjk lapkyu inkf/kdkjh@ftyk d`f"k inkf/kdkjh] xksikyxat ls izkIr tkap izfrosnu esa vkjksi la[;k&1]2]3 ,oa 4 izekf.kr ik;s x;s gSA tcfd la;qDr d`f"k funs'kd lkj.k izeaMy] Nijk }kjk ds dqy vkjksi la[;k&2 ,oa 3 dks izekf.kr fn[kkdj n.M vf/kjksfir fd;k x;k gSA 2- vkids }kjk o`gr iSekus ij cSad ls QthZ fudklh ,oa QthZ :i ls ljdkjh jkf'k dh xcu fd;s tkus dk nq%lkgl dk ifjp; fn;k x;k gS tks fcgkj ljdkjh lsod vkpkj fu;ekoyh&1976 esa mfYyf[kr izko/kkuksa ds izfrdqy gSA vkids vkpj.k ls ljdkjh@jkT; dh Nfo /kqfey gqbZ gS] vr% D;ksa ugha fcgkj ljdkjh lsod ¼oxhZdj.k ,oa vihy½ fu;ekoyh 2005 ds Hkkx V ds fu;e&14 ds mi fu;e XI ds rgr dkjZokgZ dj vkidks ljdkjh lsok ls c[kkZLr dj fn;k tk;A vr% bl laca/k esa vki vius cpko i{k gsrq dkj.k i`PNk i= izkfIr dh lkr fnuksa ds vUnj fyf[kr :i ls d`f"k funs'kky; dks miyC/k djkosaA le; ij dkj.k i`PNk miyC/k ugha djkus ij ;g le>k tk;sxk fd bl laca/k esa vkidks dqN ugha dguk gS] ,oa rnuqlkj ,d i{kh; fu.kZ; fy;k tk ldrk gSA vuq0&lapkyu inkf/kdkjh@d`f"k inkf/kdkjh] xksikyxat dk tkap izfrosnu dh Nk;k izfr layXu gSA fo'oklHkktu g0@& ¼vjfoUnj flag½ d`f"k funs'kd] fcgkj iVukA** From the perusal of the aforesaid show cause notice it would be more than clear that the same did not at all afford the petitioner a reasonable opportunity of making a representation. Reasonable opportunity invariably would mean that the adjudicating authority should not only issue a show cause notice but also must disclose all evidence and materials placed before it in the course of proceeding and must afford an opportunity to the person against whom it is sought to be utilised. The object underlying such disclosure is to afford an opportunity to the person to enable him to prepare his defence, rebut it and pul forward his case before the authority as has been explained by de Smith" Judicial Review of Administrative Action, (5th Edn.) pp. 441-44; Wade: Administrative Law, (9th Edn.), pp.512-17; Halsbury's Laws of England, (4th Edn.), Vol.1, Para 76, P.94 and further reiterated by Lord Denning in the following words in the case of Kanda Vs. Government of Malaya reported in 1962 AC 322:- "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them." 16. The same view has been also followed in India as may be found in the text book of M.P. Jain "Treatise on Administrative Law", (1996), Vol. 1, pp. 321-29 and in the judgment of Apex Court in Dhakeshwari Cotton Mills v. CIT, AIR 1955 SC 65 , Parthasarthy S. v. State of A.P., (1974)3 SCC 459 , N.R. Cooperative Society v. Industrial Tribunal, AIR 1967 SC 1182 , M.P. Industries v. Union of India, AIR 1966 SC 671 and Sukhdeo v. Commissioner, Amravati Division, (1996) 5 SCC 103 . 17. In view of the above, this Court is satisfied that though the Director, Agriculture could have exercised his suo motu power for revising the order of punishment in case he had found the same to be wholly disproportionate to the misconduct alleged against the petitioner but the manner in which such power had been exercised by him including the use of expression “Dead Wood” would leave nothing for this Court but to hold that the impugned order is bad both in fact and in law and cannot be sustained. 18. 18. Thus in the light of the aforesaid discussions, this Court would find it difficult to uphold the impugned order dated 13.3.2013 as contained in Annexure-A to the counter affidavit or Annexure-1 to the Interlocutory Application and the same is accordingly quashed. 19. It is true that the petitioner is facing a serious charge of defalcation of government money for which the government need not wait for the conclusion of the criminal proceeding, inasmuch as, if there are material before it in the form of evidence in departmental proceeding which can safely establish such misappropriation, the resultant order of punishment can also be passed as has been consistently held by the Apex Court including in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and others reported in 1999(3) SCC 679 . However, when such power is to be exercised, the same would require a cautious application of mind by the authorities while dealing with the facts as also the plea of defence, if any, taken by the petitioner. 20. The matter, is accordingly remitted back to the Director, Agriculture who if finds necessary to use his power under Rule 28 of 2005 Rules against the petitioner will issue a compact show-cause notice containing the reasons in terms of Rule 28 and, thereafter, the petitioner’s show-cause reply if filed within a period of one month from date of receipt of such show-cause notice will be considered before passing of any order either dropping the matter or enhancing the punishment which was passed by the Joint Director. This Court has given such liberty after taking into account that the Director, Agriculture had found not only the order of punishment of the petitioner to be disproportionate but even the action of the disciplinary authority namely the Joint Director Agriculture to be tainted with malice and collusive for which now a show cause notice has been issued against the disciplinary authority who had passed such order of punishment without considering the gravity of the misconduct proven against the petitioner. 21. Before parting with, this Court however must make it clear that whatever observations have been made above in this judgment is only by way of answering submissions made by the learned counsel for both the parties and the same therefore will not prejudice either party. 22. With the aforesaid observations and directions this writ application is disposed of. 21. Before parting with, this Court however must make it clear that whatever observations have been made above in this judgment is only by way of answering submissions made by the learned counsel for both the parties and the same therefore will not prejudice either party. 22. With the aforesaid observations and directions this writ application is disposed of. As a result of the quashing of the order, the petitioner would stand reinstated in service and will be entitled for payment of his arrears and current salary till any fresh order is passed against him in accordance with law. 23. The personal appearance of Mr. Ajay Yadav, Acting Director (Agriculture) is accordingly dispensed with. 24. Let a copy of this order be given to Mr. S.D. Sanjay learned A.A.G.-12 for its immediate communicate to the Respondents for its strict compliance.