CAV JUDGMENT Heard Mr. Abhay Kumar Singh, the learned senior counsel appearing on behalf of the petitioner and Mrs. Vinita Singh, the learned counsel appearing on behalf of the State-respondents. This writ application has been filed assailing the notification dated 30.08.2013 imposing the punishment of censure and withholding of two increments in salary with non-cumulative effect upon the petitioner. During the pendency of the writ application, the petitioner has filed interlocutory application (I.A. No. 1049 of 2014) praying for amendment by addition of the relief for challenging the notification dated 26.12.2013 whereby the earlier notification dated 26.12.2013 has been modified to the extent that the earlier punishment for withholding two increments has been reduced to one increment with non-cumulative effect. After considering the submissions on behalf of the parties and the nature of the prayer made therein, this interlocutory application (I.A. No. 1049 of 2014) is allowed and treated to be the part of the writ application. The necessitous facts are that by notice dated 12.04.2007 issued by the respondent-Secretary Rural Works Department, Government of Bihar, the petitioner was asked to submit explanation against the proposed departmental proceeding on the charges for submission of the lesser number of detailed project reports of the schemes than the fixed target under Mukhaya Mantri Gram Sarak Yojana in the year 2006-07 and also for expending the lesser amount than the amount required to be expended. By resolution dated 24.10.2008, the respondents decided to initiate a disciplinary proceeding against the petitioner on the charge articulated in the charge-sheet therewith. During the inquiry, a supplementary charge was also included by resolution dated 07.04.2009 relating to the non-verification of the measurement of the work of the construction of the road from the post office to the sub divisional office. The Conducting Officer submitted his enquiry report on 19.07.2012 exonerating the petitioner of both the charges. The disciplinary authority, however, issued a second show cause notice on 13.03.2013 expressing its disagreement with the findings in the enquiry report on both the original charge as well as the supplementary charge. The petitioner submitted his reply on 09.04.2013 to the second show cause notice. The disciplinary authority, however, issued a second show cause notice on 13.03.2013 expressing its disagreement with the findings in the enquiry report on both the original charge as well as the supplementary charge. The petitioner submitted his reply on 09.04.2013 to the second show cause notice. By the impugned notification dated 30.08.2013, the disciplinary authority has imposed the punishment of censure and withholding of two increments in salary with non-cumulative effect which has been subsequently modified by notification dated 26.12.2013 as censure and withholding of one increment in salary with non-cumulative effect. Assailing the impugned notification, the learned senior counsel for the petitioner has submitted that a bare perusal of the contents of the second show cause notice would show that they are verbatim reproduction of the charges against the petitioner and no reason has at all been assigned for disagreement with the findings in the enquiry report. It has been pointed out that in fact there was no oral or documentary evidence led on behalf of the department in support of the charges against the petitioner and that was the precise reason why no evidence or reason has been mentioned in the second show cause notice stating disagreement with the findings in the enquiry report. It has been propounded that the purpose and the contents of the second show cause notice when the disciplinary authority differs with the enquiry report are by now well settled and the non-compliance of the same would amount to violation of the principles of natural justice. The learned senior counsel has further argued that there was no allegation of financial irregularity or misappropriation against the petitioner and in substance the original charge related to performance below fixed target and the supplementary charge related to the alleged non-performance of the supervisory work by the petitioner. It has been submitted that the petitioner, during the course of inquiry, has submitted his explanation alongwith evidence but no material much less evidence was adduced on behalf of the department to substantiate the charges except the show cause notice dated 12.04.2007 issued by the department itself against the petitioner which could not have been evidence by any stretch. It has been submitted that the petitioner, during the course of inquiry, has submitted his explanation alongwith evidence but no material much less evidence was adduced on behalf of the department to substantiate the charges except the show cause notice dated 12.04.2007 issued by the department itself against the petitioner which could not have been evidence by any stretch. Elaborating his stand on behalf of the petitioner that the entire disciplinary proceeding culminating in imposition of punishment upon the petitioner was vexatious and biased, the learned counsel has referred to the notings in the file by the respondents to show that after recording the disagreement with the findings in the enquiry report in favour of the petitioner, the disciplinary authority straightway took the decision to punish the petitioner and even decided not to consider the reply to the second show cause notice before passing the impugned order of punishment. The learned senior counsel has also submitted that though by the Government Circular No. 2178 dated 28.02.2007, the time limit of one year for concluding the departmental proceeding has been specified but in the case of the petitioner, the departmental proceeding continued from 2008 upto 2013 for long five years for no reason attributable to the petitioner for such long delay in concluding the proceeding. The learned counsel for the respondents, in reply, however, has submitted that there has been no breach of the statutory provisions or the principles of natural justice in the disciplinary proceeding culminating in imposition of punishment upon the petitioner. It has been canvassed that the petitioner has been granted full opportunity of hearing and the disciplinary authority has reached to the conclusion of delinquency of the petitioner on the basis of the material on record and in accordance with law/rules. However, the learned counsel has failed to explain the notings in the file wherein the disciplinary authority decided not to consider the reply of the petitioner to the second show cause notice before passing the final order of punishment and the submission, on that score, has been made that the matter be remanded back to the disciplinary authority for consideration of the reply of the petitioner to the second show cause notice. The learned counsel for the parties have relied upon a number of decisions by different courts which shall hereinafter be referred appropriately. The learned counsel for the parties have relied upon a number of decisions by different courts which shall hereinafter be referred appropriately. In the corpus of service law relating to the departmental proceeding the principle is well entrenched that the entire procedure must reflect fair play and reasonableness. The perceptible emphasis is not only to secure justice but also to prevent miscarriage of justice requiring the disciplinary authority to act fairly, impartially and reasonably and in antithesis to a “closed mind”. The factual scenario in the present case depicts that there was no allegation of financial irregularity or misappropriation against the petitioner and the charges against him related to under performance or non-performance of his duties as Executive Engineer. The charge-sheet accompanying the resolution dated 24.10.2008 (Annexure-4) for initiation of the disciplinary proceeding contained only the allegations, and in evidence only the previous show cause notice again containing only the allegations was mentioned. No statement of facts accompanied the charge-sheet giving the details which formed the basis of the charges. It is also evident from the enquiry report that no evidence oral or documentary was led on behalf of the department to substantiate the charges levelled against the petitioner. The petitioner, however, participated in the enquiry by adducing evidence and materials to establish the falsity of the charges. The enquiry report was submitted by the conducting officer exonerating the petitioner of the original charge as well as the supplementary charge against him. The petitioner, however, participated in the enquiry by adducing evidence and materials to establish the falsity of the charges. The enquiry report was submitted by the conducting officer exonerating the petitioner of the original charge as well as the supplementary charge against him. It would be fruitful here to take into notice the relevant findings in the enquiry report as follows:- ^^9- ----------------------vkjksih }kjk lk{; ds :i esa layXu Qjojh ,oa ekpZ] 2007 ds ekfld izxfr izfrosnu dh izfr ds voyksdu ls Li”V gS fd Qjojh esa 11-926 djksM+ :Ik;s rFkk ekpZ rd 14-87 djksM+ :Ik;s dh ;kstukvksa dk Mh0 ih0 vkj0 muds }kjk o”kZ 2006&07 esa rS;kj dj fy;k x;k Fkk tks 15-00 djksM+ :Ik;s ds d.kkZfdr jkf’k ds yxHkx cjkcj gh Fkk A bl iwjh jkf’k ds Mh0 ih0 vkj0 dh rS;kjh Hkh os vkSj igys dj ikrs ;fn ftyk inkf/kdkjh] dSewj }kjk pkj u;h ;kstukvksa dk ‘kh?kz p;u dj mldh lwpuk mUgsa fnlEcj] 2006 esa gh miyC/k djk fn;s gksrs A ftyk inkf/kdkjh }kjk u;s pkj ;kstukvksa ds p;u esa yxHkx pkj ekg dk le; fy;k x;k A ;kstukvksa ds dk;kZUo;u esa larks”ktud O;; ugha gks ik;k pwWafd eq[;ky; ls fnukad 14-03-2007 ¼foRrh; o”kZ dh lekfIr ds djhc½ rd ek= rhu ;kstukvksa] ftudh dqy izkDdfyr jkf’k 1-79 djksM+ :Ik;s Fkh] dk gh vuqeksnu izkIr gqvk A Li”Vhdj.k ugha nsus ds lEcU/k esa Hkh vkjksfir dk cpko Lohdkj ;ksX; gS D;ksafd cxSj lqlaxr dkxtkr ds Li”Vhdj.k nsuk lEHko ugha Fkk ,oa dSewj izeaMy ls vU;= LFkkukUrfjr gks tkus ds dkj.k dkxtkr dks bdV~Bk djus esa dqN le; yxuk LokHkkfod Fkk A ^^ 15- --------------------- vkjksfir ds fo:) vkjksi gS fd mUgksaus iksLV vkWfQl ls vuqeaMy dk;kZy; rd iFk fuekZ.k esa fd;s x;s dk;Z dh ekih dh tkWap ugha dh A ------------- pwWafd ;g dk;Z foHkkxh; rkSj ij djk;k x;k Fkk] blfy, ekihiqLr esa vkjksfir inkf/kdkjh dks ;g vafdr djus dh vko’;drk ugha Fkh fd mUgksaus dk;Z dh tkWap dh vkSj larq”V gq;s A ;g izfdz;k oSlh ;kstukvksa esa viuk;h tkrh gS] tgkWa laosnd }kjk dk;Z djk;k tkrk gS A 17- lkjka’k% ewy vkjksi ,oa iwjd vkjksi vkjksfir inkf/kdkjh ds fo:) izekf.kr ugha gksrs gSa A ---------------** The petitioner has brought on record the photo copies of the notings in the file related to the departmental proceeding which have been supplied to him by the respondents under the Right to Information Act, 2005. Though, it is well settled that the notings in a departmental file do not have the sanction of law to be an effective order but these notings become relevant in cases where the final orders passed on the basis of these notings have been assailed as lacking transparency, fair play and reasonableness. These notings become all the more relevant when the assertions have been made that the authorities approached the matter with a „closed mind?. It appears from the notings in the file that the enquiry report exonerating the petitioner of both the charges was got re-examined by the respondents, in view of the technical aspects involved therein, by the technical advisor to the special officer. However, in his report dated 17.09.2012, the said technical advisor also expressed his concurrence with the findings recorded in the enquiry report. It further appears from the notings that the proposal for exonerating the petitioner from the charges did not find favour with the respondent-Chief Secretary who recorded the finding of delinquency, decided the quantum of punishment and then forwarded the file to the Hon?ble Chief Minister with the following notings:- ^^6- of.kZr fLFkfr esa lapkyu inkf/kdkjh ds fu”d”kZ ls vlger gksrs gq;s Jh jke ds fo:) ;kstukvksa ds dk;kZUo;u eas ykijokgh] f’kfFkyrk rFkk dRrZO;ghurk dk nks”kh ekurs gq;s fuEukafdr y?kq naM ds fy;s f}rh; dkj.k i`PNk djus dk funsZ’k foHkkx dks fn;k tk ldrk gS %& ¼d½ fuUnu ,oa ¼[k½ nks osru o`f) ij vlap;kRed izHkko ls jksd A** It further appears that the Hon’ble Chief Minister made a query as to whether a second show cause notice was required in case of minor punishment but after deliberation the same noting once again was forwarded to the Hon’ble Chief Minister who concurred with it on 23.02.2013. Thereafter, the second show cause notice was issued to the petitioner on 13.03.2013 (Annexure-12) to which the petitioner submitted his reply on 09.04.2013 (Annexure-13). The notings in the file thereafter disclose a bizarre approach when the respondents decided not to consider the said reply of the petitioner to the second show cause notice and straightway proceeded to impose the punishment as earlier determined. The notings in the file thereafter disclose a bizarre approach when the respondents decided not to consider the said reply of the petitioner to the second show cause notice and straightway proceeded to impose the punishment as earlier determined. The relevant notings in the file dated 21.05.2013 read as follows:- ^^---------------------------- mijksDr dze esa mYys[kuh; gS fd i`0 77@fV0 ij eq[; lfpo ds }kjk n.M ds foUnq ij fn;s izLrko dk vuqeksnu ekuuh; eq[;ea=h ds }kjk dj fn;k x;k gS] ,slh fLFkfr esa Jh eks[rkj ukFk jke ds }kjk nh x;h f}rh; cpko C;ku dh leh{kk dk dksbZ vkSfpR; ugha jg tkrk gS A vr% i`0 77@fV0 ij ekuuh; eq[; ea=h ds vkns’k ds vkyksd esa n.Mkns’k fuxZr djus dk vkns’k nsuk pkgsaxs A -----------------** 13. In pursuance to the decision to impose the punishment as determined earlier (file noting dated 07.12.2012 and dated 22.02.2013), the impugned notification dated 30.08.2013 (Annexure-1) has been passed thereafter. The mandatory requirement in a case where the disciplinary authority disagrees with the findings in the enquiry report, to issue a second show cause notice to the delinquent employee containing the reasons for disagreement and the consideration of the reply of the delinquent employee to the said notice by the disciplinary authority before reaching to the final conclusion regarding delinquency and imposition of punishment, has been well laid down by the Apex Court in the case of Punjab National Bank Vs. Kunj Bihari Mishra 1998 (7) SCC 84 and followed and reiterated in Yoginath D. Bagde Vs. State of Maharashtra (1999) 7 SCC 739 . Their Lordships in Yoginath D. Bagde (supra) have ruled as follows:- “28………..Difficulties have arisen in all those cases in which the inquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, “an opportunity of hearing” may have to be read into the rule by which the procedure for dealing with the enquiring authority’s report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be “not guilty” by the enquiring authority, is found “guilty” without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of “not guilty” has already been recorded. 31…….So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the inquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution…..” The factual scenario in the present case as aforementioned is nearer to the facts of the case in Yoginath D. Bagde (supra) wherein also the disciplinary committee after recording its disagreement with the findings of the enquiry officer came to the conclusion that the charges against the delinquent judicial officer were proved and thereafter also took the decision to impose the penalty of dismissal from service. Their Lordships have referred to the minutes of the disciplinary committee in that case and have noticed that the final decision with regard to the charges levelled against the delinquent had already been taken by the disciplinary committee without providing any opportunity of hearing to him and then held that the post decisional opportunity of hearing would be of no avail in that circumstance. In the present case, the facts situation is more deplorable when the decision was taken not to consider the reply of the petitioner to the second show cause notice at all but to maintain the earlier decision to impose the punishment on the basis of the conclusion that the charges levelled against the petitioner stood proved. In that circumstance the reply of the petitioner to the second show cause notice was even not placed before the Hon?ble Chief Minister for consideration. The rules of fairplay and reasonableness have also been clearly given a go by when the different officers at their own level had acted as disciplinary authority. Even otherwise also, it is apparent that no evidence has been led to substantiate the charges against the petitioner in the inquiry and the second show cause notice only repeats the charges without adverting to the reasonings and evidence relied upon by the enquiry officer. It is true that the findings in inquiry report are not binding upon the disciplinary authority and it is always open for the said authority to differ with those findings and reach to its own conclusion but the conclusion cannot be based on merely ipse dexit as also surmises and conjectures rather the disciplinary authority is required to disclose some evidence on the basis of which it has decided to differ with the findings in the enquiry report. The final order as contained in the impugned notification dated 30.08.2013 though refers to the reply of the second show cause notice by the petitioner but no consideration at all has been given to the same. As such, this Court has got no option but to hold that the impugned notification (Annexure-1) dated 30.08.2013 and the modified notification dated 26.12.2013 (Annexure-14) are not sustainable. At this juncture, it would be necessary to consider the submission on behalf of the State-respondents that the matter be remanded for consideration of the reply of the petitioner to the second show cause notice. At this juncture, it would be necessary to consider the submission on behalf of the State-respondents that the matter be remanded for consideration of the reply of the petitioner to the second show cause notice. It has also been argued that this Court in exercise of its jurisdiction under Article 226 cannot act as the appellate authority in the domestic inquiry. However, their Lordships in Yoginath D. Bagde (supra) have laid down that “the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the courts can interfere with the conclusions reached therein if there was no evidence to support of the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse.” As already discussed, there is no allegation of financial irregularity and misappropriation and there was also no charge reflecting upon the integrity of the petitioner. There was also no evidence oral or documentary adduced on behalf of the department in support of the charges whereas the petitioner has adduced evidence to rebut the allegations of non-performance and under performance which have been relied upon by the enquiry officer who has submitted the report exonerating the petitioner from both the charges. There is no absolute rule that in every case when the order of punishment is overturned on the finding that the inquiry was not properly conducted, the court must remit the matter back to the disciplinary authority to conduct the inquiry from the point it stood vitiated. In such cases, as laid down by their Lordships in Anant R. Kulkarni Vs. Y.P. Education Society 2013 (3) PLJR (SC) 106, the gravity of delinquency and the magnitude of misconduct alleged against the delinquent employee should be examined by the Court. Their Lordships have further ruled that “it is always open for the courts in such a case to examine the case on merits as well, and in case the court comes to the conclusion that there was in fact, no substance in the allegations, it may not permit the employer to hold a fresh inquiry. Their Lordships have further ruled that “it is always open for the courts in such a case to examine the case on merits as well, and in case the court comes to the conclusion that there was in fact, no substance in the allegations, it may not permit the employer to hold a fresh inquiry. Such a course may be necessary to save the employee from harassment and humiliation.” In the present case, from the facts and materials as discussed above, it is limpid that the petitioner has satisfactorily explained away the charges levelled against him during inquiry and there were no contrary evidence and material brought on record by the department to substantiate the charges. The second show cause notice issued by the disciplinary authority also does not refer to any evidence or material to justify the reason/decision for disagreement with the enquiry report, and though in his reply to the second show cause notice the petitioner reiterated his explanation and evidence but the decision was taken not to consider the same at all. The disciplinary authority while issuing subsequent notification dated 26.12.2013 modifying the earlier punishment to the extent of withholding one increment in salary with non-cumulative effect was well aware that the petitioner would superannuate on 31.12.2014. In view of these facts and circumstances, this Court holds that the prayer for remanding the matter back to the disciplinary authority for consideration of the reply to the second show cause notice is unwarranted and uncalled for. In result, this writ application is allowed. The impugned notification dated 30.08.2013 (Annexure-1) and the subsequent notification dated 22.12.2013 (Annexure-14) are hereby quashed. The petitioner is, accordingly, also held to be entitled to the consequential benefits.