ORDER : Rakesh Kumar, J. 1. The petitioner has approached this Court invoking its writ jurisdiction under Article 226 of the Constitution of India, with a prayer to issue a writ of certiorari for quashing Office Order dated 06-04-2010, contained in Memo No. 1320 dated 06-04-2010, issued under the signature of Engineer-in-Chief, Road Construction Department, Bihar, Patna (Annexure - 1 to the writ petition). By the said order, the disciplinary authority directed to withheld 50% pension of the petitioner. 2. Short fact of the case is that the petitioner was proceeded departmentally on an allegation that while functioning as Junior Engineer in Road Construction Department, Govt. of Bihar in between 1993 and 1996, he had committed certain misconduct. The proceeding was initiated, vide office order contained in Memo No. 7948 dated 22-10-2005 (Annexure - 2 to the writ petition), which was enclosed with the memo of charge. The petitioner was proceeded regarding four charges. In the departmental proceeding, petitioner participated and submitted his show cause reply. The conducting officer, after conducting detailed departmental enquiry, did not find any material to prove any of the charges against the petitioner and thereafter, the enquiry officer submitted its report exonerating the petitioner from all the charges. During pendency of the departmental enquiry, the petitioner superannuated w.e.f. 31-05-2007. After about two years of the retirement of the petitioner, the Engineer-in-Chief-cum-Additional Secretary-cum-Special Secretary, Road Construction Department, Patna, vide it memo no. 913 (E) dated 23-03-2009 (Annexure - 6 to the writ petition), converted the departmental proceeding under Rule 43 (b) Bihar Pension Rules and thereafter, vide letter dated 12-11-2009 (Annexure - 7 to the writ petition), the petitioner was served with the second show cause notice. Since the disciplinary authority considered that charge no. 4 against the petitioner was proved, the petitioner was asked to file his second show cause within a period of 15 days. The petitioner thereafter filed his reply to the second show cause notice giving detail to substantiate that neither charge no. 4 was proved nor the charge no. 4 was sufficient for converting the proceeding under Rule 43 (b) of the Bihar Pension Rules. However, the disciplinary authority, by order impugned i.e. order dated 06-04-2010, passed punishment order to the extent of forfeiture of 50% of the pension, which has been assailed in the present writ petition. 3. 4 was proved nor the charge no. 4 was sufficient for converting the proceeding under Rule 43 (b) of the Bihar Pension Rules. However, the disciplinary authority, by order impugned i.e. order dated 06-04-2010, passed punishment order to the extent of forfeiture of 50% of the pension, which has been assailed in the present writ petition. 3. Sri Rupak Kumar, learned counsel for the petitioner has assailed the order of the disciplinary authority i.e. Annexure - 1 to the writ petition on number of grounds. It was argued by the learned counsel for the petitioner that the charge itself was stale one, since the allegation was made against the petitioner regarding his misconduct during the period of 1993 and 1996. It has been argued that while the petitioner was at the verge of retirement, the petitioner was maliciously proceeded departmentally and proceeding was initiated in the year 2005, whereas, the petitioner was to superannuate w.e.f. 31-05-2007. It has been argued that the disciplinary authority has not recorded tentative reasons for differing with the enquiry report. Only in a vague manner, the disciplinary authority has tried to justify the reason for differing with the enquiry report, whereas no such plausible reason has been assigned by the disciplinary authority while differing with the enquiry report. He has further argued that even in the second show cause notice, it was necessary to indicate proposed punishment, however; in the present case, neither plausible reason was assigned by the disciplinary authority in differing with the enquiry report nor any indication was given as to what punishment was to be imposed against the petitioner. To substantiate his submission, Sri Rupak Kumar, learned counsel for the petitioner has placed heavy reliance on paragraph 15 and 17 of a case reported in (1998) 7 SCC 84 (Punjab National Bank and others v. Kunj Behari Misra) It would be appropriate to just quote paragraph 15 and 17 of the judgment, which are as follows:- "15. At this stage, it will be appropriate to refer to the case of State of Assam v. Bimal Kumar Pandit ( AIR 1963 SC 1612 ) decided by a Constitution Bench of this Court. A question arose regarding the contents of the second show-cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings of the Enquiry Officer. A question arose regarding the contents of the second show-cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings of the Enquiry Officer. Even though that case relates to Article 311(2) before its deletion by the 42nd Amendment, the principle laid down therein, at p. 10 of the Report, when read along with the decision of this Court in Karunakar case will clearly apply here. The Court observed at SCR pp. 10-11 as follows:- "We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter: but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer, are according to the dismissing authority, proved. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer, are according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311(2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2). In dealing with this point, we must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice, and so, reading the notice in common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in the entirety." 17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer, but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority." 4. It has also been argued that the order of punishment is liable to be set aside, in view of the fact that punishment order has been passed only on suspicion and surmises. He submits that the order of the disciplinary authority categorically indicates that punishment has been imposed only on suspicion. The word "Suspicion" has also been used in the order of the punishment. According to learned counsel for the petitioner, in any case, on suspicion, no punishment order is sustainable in the eye of law. To substantiate this submission, learned counsel for the petitioner has placed reliance on a judgment of the Apex Court reported in (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank and others. He has specifically referred to paragraph - 23 of the judgment, which is quoted herein below:- 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof." 5. Learned counsel for the petitioner has also placed reliance on paragraph - 22 of a judgment of the Apex Court reported in (1999) 7 SCC 409 (Zunjarrao Bhikaji Nagarkar v. Union of India and others), which is quoted herein below:- "22. In the case of Madan Mohan Choudhary v. State of Bihar (1999) 3 SCC 396 this Court set aside the order of compulsory retirement of the appellant, a member of the Bihar Superior Judicial Service, on the ground that there was no material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest." 6. Learned counsel for the petitioner has argued that the departmental proceeding, which was pending against the petitioner, was not having any ingredient warranting conversion of proceeding under Rule 43 (b) of the Bihar Pension Rules. According to learned counsel for the petitioner, the work, which was assigned to the petitioner, was duly discharged by the petitioner in the capacity of Junior Engineer. According to learned counsel for the petitioner, the work, which was assigned to the petitioner, was duly discharged by the petitioner in the capacity of Junior Engineer. He has argued that even in department proceeding, the petitioner had produced Measurement Book, which was looked into by the conducting officer and only thereafter, by assigning detailed reasons, the conducting officer had exonerated the petitioner from all the charges and as such, the proceeding, which was pending on the date of retirement of the petitioner, was not required to be converted under Rule 43 (b) of the Bihar Pension Rules. It has further been argued that though, in the department proceeding, enquiry officer after exonerating the petitioner had submitted report, the respondents allowed the petitioner to superannuate and after about two years of his retirement, the proceeding was converted under Rule 43 (b) of the Bihar Pension Rules. He submits that since after submission of enquiry report, no action was taken and petitioner was allowed to superannuate, this was sufficient to draw an inference that the respondents had not decided to proceed departmentally against the petitioner and virtually, it will be deemed that the proceeding was dropped, however; in an illegal manner, after about two years from retirement, the respondents had converted the proceeding under Rule 43 (b) of the Bihar Pension Rules, which was not permissible and as such, the consequential order of punishment is liable to be set aside. On this very point, he has placed reliance on a single Bench judgment of this Court reported in 2009 (3) P.L.J.R. 855 (Raj Bahadur Prasad Sharma v. The State of Bihar & Ors). On aforesaid ground, a plea has been taken that the order impugned is liable to be set aside and this petition be allowed with all consequential benefits. 7. Miss Divya Verma, learned A.C. to Addl. Advocate General - 3 has vehemently opposed the prayer of the petitioner. it was argued by her that at the time of judicial review by this Court, the only requirement is to examine as to whether in the departmental proceeding, decision taking process was justified or not. According to her, the disciplinary authority was well-competent to differ with the enquiry report and only requirement was to issue notice to the delinquent with his reason to differ with the enquiry report. According to her, the disciplinary authority was well-competent to differ with the enquiry report and only requirement was to issue notice to the delinquent with his reason to differ with the enquiry report. According to Miss Verma, the second show cause notice, in clear term, indicates reason assigned by the disciplinary authority for differing with the enquiry report. She has taken the Court to Annexure-7 to the writ petition, which is a letter dated 12-11-2009 issued by the disciplinary authority whereby the disciplinary authority, after examining the enquiry report of the conducting officer, had found that charge no. 4 was proved against the petitioner and as such, he asked the petitioner to submit his reply to the second show cause notice. Since the reply to the second show cause notice was not satisfactory, the disciplinary authority has rightly passed order of punishment i.e. Annexure-1 to the writ petition, which according to her, requires no interference. 8. Besides hearing, I have also perused the materials available on record. It is admitted fact that the petitioner was proceeded departmentally, vide Annexure-2 to the writ petition i.e. Office Order dated 22-10-2005, which was supported with the memo of charge. On going through the charge, it is evident that allegation against the petitioner was pertaining to the period in between 1993 and 1996 while the petitioner was functioning as Junior Engineer, Road Division-II, Gaya. However, after conducting enquiry, the enquiry officer exonerated the petitioner from all the charges. Though enquiry report exonerating the petitioner was submitted by the conducting officer, no action was taken against the petitioner and petitioner was allowed to superannuate w.e.f. 31-05-2007. The petitioner retired in the year 2007 and for about two years, no action was taken by the respondents authority, however; suddenly in the year 2009, the disciplinary authority, vide Annexure-6 to the writ petition, decided to convert the departmental proceeding under Rule 43 (b) of the Bihar Pension Rules. The order contained in Annexure-6 to the writ petition does not indicate as to what was the reason for taking such decision after about two years of superannuation of the petitioner. The order contained in Annexure-6 to the writ petition does not indicate as to what was the reason for taking such decision after about two years of superannuation of the petitioner. In normal course, if during departmental enquiry, the petitioner was exonerated by the enquiry officer and he was allowed to superannuate, one can draw an inference that the department had decided not to proceed against the petitioner and it will be deemed that departmental proceeding had come to an end without any punishment to the delinquent. However, in the present case, in the year 2009, the proceeding, which was initiated against the petitioner in the year 2005, for so called misconduct, which had happened long back in between 1993 and 1996, the department decided to convert the proceeding under Rule 43(b) of the Bihar Pension Rules. This act of the disciplinary authority creates serious doubt in the mind of the Court. Moreover, after converting the proceeding under Rule 43 (b) of the Bihar Pension Rules, just to complete the formalities, a second show cause notice was issued in the month of November, 2009, vide Annexure - 7 to the writ petition. Even the second show cause notice makes it clear that the disciplinary authority was having suspicion regarding the act done by the petitioner in the capacity of Junior Engineer. Even the second show cause notice makes it clear that the disciplinary authority was having suspicion regarding the act done by the petitioner in the capacity of Junior Engineer. At this juncture, it would be appropriate to quote 2nd show cause notice i.e. Annexure - 7 to the writ petition, which is as follows:- ^^vfHk;ark izeq[k≶&vij vk;qDr≶&fo'ks"k lfpo dk dk;kZy;] iFk fuekZ.k foHkkx i= la[;k%& fux@lkjk&2 iFk & 42@2003 Hkkx&5&4297 fnuakd %& 12-11-2009 izs"kd] vfHk;ark&izeq[k≶&vij vk;qDr≶&fo'ks"k lfpo] iFk fuekZ.k foHkkx] fcgkj iVukA lsok esa] Jh yky cgknqj falag lsok fuo`r duh; vfHk;ark] djek jksM dUgS;k dEiysDl] fctyh dk;kZy; ds fudV] vkSjaxkckn, fiu&824101 fo"k; %& f}rh; dkj.k i`PNk mRrj ds laca/k esaA egk'k;] funs'kkuqlkj mi;qZDr fo"k; ds laca/k esa dguk gS fd iFk ize.My] la[;k&2] x;k ds inLFkkiu dky esa cjrh x;h vfu;ferrk ds fy, dk;kZy; vkns'k la[;k&216 fnuakd 22-10-2005 }kjk lapkfyr foHkkxh; dk;Zokgh esa lapkyu inkf/kdkjh }kjk lefiZr tkap izfrosnu esa vkids fo:) xfBr 4 vkjksih esa ls fdlh Hkh vkjksi dks izekf.kr ugh ik;k x;kA lapkyu inkf/kdkjh }kjk lefiZr tkap izfrosnu ds leh{kksijkUr vkjksi la[;k&4 ds laca/k esa ik;k x;k fd feV~Vh dk;Z ls lacaf/kr ,djkjukek la[;k&64,Q] 2@95&96 ds ekih iqfLr 231 esa ,d gh frfFk 26-07-1995 dks vkids@lgk;d vfHk;ark ,oa dk;Zikyd vfHk;ark }kjk ekih dh izfof"V vkSj mldh psfdax dj foi= Hkh ikfjr dj fn;k x;k tks fo'oluh; ugha gSA vkids }kjk crk;k x;k fd 2 fd0eh0 rd ds ;kaf=d lk/ku ls feV~Vh dk <+qykbZ dk vuqeksnu eq[; vfHk;ark] dsUnzh; fu:i.k] laxBu }kjk fn;k x;k Fkk tcfd bl laca/k esa dksbZ lk{; ugha fn;k x;k gSA brus de le; esa 11]96]967@& :i;s dk feV~Vh dk;Z djkuk Li"V :i ls lansgkLin gSA Lohd`r yhM+ pkVZ dk layXu ugha gksuk bl ckr dks cy nsrk gSA bl izdkj lapkyu inkf/kdkjh dk earO; ekU; ugha ik;k x;kA lapkyu inkf/kdkjh }kjk lefiZr tkap izfrosnu dh izfr layXu djrs gq, funs'k fn;k tkrk gS fd izekf.kr vkjksi la[;k&4 ds laca/k esa viuk f}rh; dkj.k i`PNk mRrj i= fuxZr dh frfFk ls 15 fnuksa ds vUnj fuf'pr :i ls lefiZr djsaA fu/kkZfjr vof/k ds vUnj f}rh; dkj.k i`PNk mRrj izkIr ugha gksus ij ;g le>k tk;sxk fd bl laca/k esa vkidks dqN ugha dguk gS rFkk rnuqlkj vxzsrj dkjZokbZ dh tk;sxhA vuq0 ;FkksDrA fo'oklHkktu] vfHk;ark izeq[k≶&vij vk;qDr≶&fo'ks"k lfpo] iFk fuekZ.k foHkkx] fcgkj] iVukA^^ 9. On perusal of the second show cause notice, it is evident that the disciplinary authority, while differing with the enquiry report, had raised suspicion against the petitioner. The Court is of the opinion that suspicion, howsoever strong may be, cannot be a ground to punish an employee. The Court is of the view that this issue has already been set at rest, which has been noticed by the Apex Court in Roop Singh Negi's case (supra) and Zunjarrao Bhikaji Nagarkar's case (supra). Accordingly, there is no need to reiterate that on suspicion, the petitioner was not required to be issued second show cause notice and punished on such suspicion. Moreover, on perusal of Annexure-7 to the writ petition, it appears that the disciplinary authority has only completed formalities of recording reason for differing with the enquiry report, whereas, on perusal of Annexure-7 to the writ petition, which has been quoted herein above, it is evident that the disciplinary authority has not at all indicated the opinion of the enquiry officer in respect of charge no. 4 against the petitioner and only by using the word "suspicion", he had tried to justify the reason for differing with the enquiry report. Even in the order of punishment i.e. Annexure-1 to the writ petition, the disciplinary authority has considered that carriage of such huge quantity of soil was suspicious. Meaning thereby that even in the order of punishment, the disciplinary authority has used the word "suspicion" for coming to the conclusion that petitioner has committed misconduct. 10. In view of facts and circumstances, particularly the fact that charge was related for the period in between 1993 & 1996 and the fact that petitioner was allowed to superannuate and the enquiry officer had exonerated the petitioner, the second show cause notice, which was based on suspicion, was not sufficient for imposing any punishment against the petitioner. 11. In view of facts and circumstances, the order impugned i.e. order contained in Memo No. 1320 dated 06-04-2010 issued under the signature of Engineer-in-Chief, Road Construction Department, Bihar, Patna, vide Annexure - 1 to the writ petition is, hereby, set aside. 12. The writ petition is allowed with all consequential benefits.