JUDGMENT : Per Sanjay Kumar Dwivedi, J. 1. Heard Mr. Rajendra Krishna, learned counsel for the petitioner and Mr. Nipun Bakshi, learned S.C.-III (Mines & Geology) for the State of Jharkhand and Mr. Binit Chandra, learned counsel for the State of Bihar. 2. The petitioner has preferred this writ petition for direction upon the respondents to shift the date of promotion of the petitioner for second Assured Career Promotion Scheme (in short A.C.P.) from 09.08.1984 to 09.08.1999. Further prayer was made to provide monetary benefits in the increment for the year 1994-95, 1995-96, & 1996-97. A prayer also made for payment of salary during the period of suspension w.e.f. 07.04.1994 to 13.08.1997 deducting subsistence allowance. Petitioner also prays for direction upon the respondents not to give effect the show cause notice dated 12.04.2004. During the pendency of the writ petition an order dated 25.10.2008 was also passed and accordingly, by way of an Interlocutory Application the said order has also been challenged in this writ petition, which was allowed vide order dated 28.01.2016. 3. The petitioner was posted as Assistant Engineer in Swarn Rekha Canal Division at Ghatshila. By letter dated 07.04.1994, the petitioner was put under suspension. Subsequently, the said suspension was revoked by letter dated 04.09.1997. The petitioner was served with a charge sheet, with respect to deficit in construction on the Mohammadganj Bhim Barrage it is alleged in the charge that the near 2850 m. to 2500 m. there was a canal “lathia” which was blocked due to the construction of barrage and at that very place height of the dam is 24 ft. and there 20 ft. to 30 ft. longitudinal rain cut was found. At this, charge sheet was issued against the petitioner. The petitioner replied to the charge sheet wherein he denied the charges leveled against him and an Enquiry Officer was appointed to conduct the enquiry. Subsequently, Enquiry Officer has submitted enquiry report wherein the charge against the petitioner has not been established. 4. to 30 ft. longitudinal rain cut was found. At this, charge sheet was issued against the petitioner. The petitioner replied to the charge sheet wherein he denied the charges leveled against him and an Enquiry Officer was appointed to conduct the enquiry. Subsequently, Enquiry Officer has submitted enquiry report wherein the charge against the petitioner has not been established. 4. However, the authority concerned by order dated 12.12.1998 has passed the final order differing with the findings of the Enquiry Officer and against that order, the petitioner preferred a writ petition before the Patna High Court in C.W.J.C. 2123 of 1999 which was allowed by order dated 18.09.2003 whereby the impugned order was quashed and the liberty was given to the authority to record their disagreement and the tentative findings, issue notices to the petitioners to show cause and thereafter record their final findings. Learned counsel for the petitioner submits that thereafter no final order has been passed by the respondent authorities and accordingly, there is no order of punishments was there. In the meantime, the petitioner was provided second A.C.P. vide office order dated 24.01.2006 in which the name of the petitioner finds place at serial no. 132 and the petitioner was given A.C.P. w.e.f. 09.08.2004. Learned counsel for the petitioner further submits that although the petitioner was entitled for the said promotion w.e.f. 09.08.1999, but, the same was provided on 09.08.2004 because of the punishment imposed against the petitioner withholding his promotion for five years from the date on which the same is due. He further submits that the said order of the punishment has already quashed by the Hon’ble Patna High Court and, therefore, the respondents were bound to consider the case of the petitioner by giving him promotion w.e.f. 09.08.1999. He further submits that during the period of suspension from 07.04.1994 to 13.08.1997 the petitioner did not get increment, but, subsequently, the notional increment was given to the petitioner. After regularisation of his salary no monetary benefits and the increment was provided to the petitioner. The petitioner was also not paid salary for the suspension period w.e.f. 07.04.1994 to 13.08.1997. In the meantime, the State of Jharkhand came into existence and the petitioner was allotted the cadre of State of Jharkhand. After regularisation of his salary no monetary benefits and the increment was provided to the petitioner. The petitioner was also not paid salary for the suspension period w.e.f. 07.04.1994 to 13.08.1997. In the meantime, the State of Jharkhand came into existence and the petitioner was allotted the cadre of State of Jharkhand. According to learned counsel for the petitioner, the authorities of State of Bihar should not have taken any action in view of the order passed by the Patna High Court but the petitioner has received a notice dated 12.04.2004. On the point of difference on findings of the Enquiry Officer, learned counsel for the petitioner assailed the impugned order on the ground that the State of Bihar has got no authority when the service of the petitioner has already placed with the State of Jharkhand. On getting the records of the departmental proceeding from the counterpart Bihar, a second show cause notice was issued by the State of Jharkhand by memo no. 1323 of dated 16.05.2008 which has been annexed as Annexure-A to the counter-affidavit filed on behalf of the respondent nos. 2 & 3. 5. Learned counsel for the petitioner further submits that Annexure-A, to the counter-affidavit filed on behalf of the respondent nos. 2 & 3, has been issued only on the basis of show cause issued by the State of Bihar dated 12.04.2004. He further submits that even the second show cause notice is not with regard to the charge which relates to the proposed punishment and according to him the second show cause notice is against the principal of natural justice. He further argues that so far as the difference on the point of inquiry is concerned, the Enquiry Officer in his report exonerated the petitioner from the charges and on that point the findings are different with the disciplinary authorities, is also not in accordance with law. The disciplinary authority while differing with the findings of the Enquiry Officer has not taken into consideration that what was the para materia of the construction of the said barrage. There are many stages of executing a work. Firstly, D.P.R. is being made and thereafter, after some stages the plan is finally executed. While differing with the findings of the Enquiry Officer, the disciplinary authority has not taken into consideration these facts. There are many stages of executing a work. Firstly, D.P.R. is being made and thereafter, after some stages the plan is finally executed. While differing with the findings of the Enquiry Officer, the disciplinary authority has not taken into consideration these facts. It will, thus, be seen that where the Enquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Enquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides its finality on the basis of its conclusion. To buttress his argument he relied in the case of Managing Director ECIL Hyderabad vs B. Karunakar reported in (1993) 4 SCC 722 particularly in paragraph nos. 26 and 27 which are extracted below:- “26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 27. It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.” 6. He further argues that that the disciplinary authority while differing with the Enquiry Officer has not taken into consideration the material on record and it amounts to arbitrary or colorful exercise of power meaning thereby the disciplinary authority was bent upon to pass the punishment order. To substantiate his argument learned counsel for the petitioner relied in the case of Ram Kishan vs Union Of India & Ors reported in (1995) 6 SCC 157 . The disciplinary authority has to consider the representation of the petitioner against the enquiry report before it arrives at any conclusion with regard to his guilt or innocence of the charges. By way of Annexure-11 to the supplementary affidavit he submits that one Mr. Gaya Roy was also charge sheeted with regard to the same Dam on the same set of charges as of the petitioner and by order dated 21.12.2009 Mr. Gaya Roy has been excluded by the Chief Engineer and he argues that the case of the petitioner is also fit to be allowed on the point of parity. At this, he submits that the impugned order cannot sustain in the eyes of law. 7. As per contra learned counsel for the respondents submits that in view of the Section 73 of the Bihar reorganization Act, the State of Jharkhand is a competent authority so far as disciplinary proceeding against the petitioner is concerned. After receiving the documents according to which the petitioner is guilty, Annexure-A, to the counter affidavit filed on behalf of the respondent nos. 1 & 2, has been issued which is a second show cause notice against the petitioner. He further submits that the petitioner chosen not to reply to that second show cause. He only intimated that already a case is pending before the Hon’ble High Court. 1 & 2, has been issued which is a second show cause notice against the petitioner. He further submits that the petitioner chosen not to reply to that second show cause. He only intimated that already a case is pending before the Hon’ble High Court. He further submits that in absence of reply of the petitioner the departmental proceeding was concluded on merit of the records and punishment order has been confirmed by memo no. 287 dated 25.10.2008. He further submits that the petitioner has initially filed this writ petition with other prayers and thereafter, he has challenged this punishment order in this writ petition, which is not maintainable. The petitioner has already retired on 31.07.2007, the petitioner has already been paid all dues relating to the retirement benefits. He submits that in the light of the punishment order dated 25.10.2008, the petitioner is not entitled for the benefits of A.C.P. as claimed by him in the writ petition, monetary benefits, increments for the year 1994-95, 1995-96 and 1996-97 and salary during the period of suspension from 07.04.1994 to 13.08.1997. 8. Having heard learned counsel for the parties, this Court finds that the second show cause notice dated 16.05.2008 which was issued by the State of Jharkhand on the basis of earlier show cause which was issued by the State of Bihar by letter dated 12.04.2004 and that too with regard to the proposed punishments and accordingly, it transpires that the respondent authorities/State of Jharkhand has not complied the order dated 18.09.2003 which was passed in C.W.J.C. No. 2123 of 1999 passed by the Hon’ble Patna High Court which amounts to acted in a mechanical way. On the question of parity also in view of Annexure-11 of the supplementary affidavit dated 21.12.2009, the case of the petitioner fortifies. The disciplinary authority has not pointed out the material facts it has considered while differing with the enquiry report. In the second show cause, the proposed punishment was provided accordingly, it cannot be treated as the second show cause. 9. As a cumulative effect of the facts and looking into the records and the reasons, the impugned order cannot be sustained in the eyes of law. Accordingly, the impugned order dated 25.10.2008 is quashed and set-aside and the petitioner is entitled for the consequential benefits. 10. In view of the above directions and observations, the writ petition stands allowed and disposed of.