JUDGMENT : I.A. No. 3486 of 2023 The instant interlocutory application has been filed for substitution of the petitioner, namely, Namita Nalini Baxla @ Namita Nalini Minz, who has died in course of pendency of the writ petition. 2. It has been submitted that the writ petitioner, namely, Namita Nalini Baxla @ Namita Nalini Minz has died leaving behind her legal heirs as referred at paragraph 5 to the instant application as such prayer has been made that the instant Interlocutory Application may be allowed since the right to sue still survives. 3. There is no objection on behalf of the State. 4. Considering the reason assigned in the instant interlocutory application, the same is allowed. 5. Office is directed to make necessary correction in the cause title of the writ petition as per the details furnished at paragraph 5 of the instant interlocutory application. 6. Accordingly, the instant interlocutory application stands disposed of. W.P. (S) No. 6697 of 2014 7. The instant writ petition has been filed under Article 226 of the Constitution of India for quashing order as contained in Memo No. 2129 dated 28.02.2014 by which punishment of four annual increment with cumulative effect has been inflicted upon the original petitioner; as also for quashing order as contained in Memo No. 10997 dated 17.11.2014 by which the appellate authority has refused to interfere with the order passed by the disciplinary authority dated 28.02.2014. 8. Brief facts of the case, as per the pleadings made in the writ petition, which require to be enumerated reads as under: The original writ petitioner, namely, Namita Nalini Baxla @ Namita Nalini Minz, while working as Block Development Officer, Basia, Gumla was proceeded departmentally by issuance of memorandum of charge as contained in Resolution No. 738 dated 08.02.2008 containing therein seven charges pertaining to (i).embezzlement of public money (ii).defalcation of public money (iii). misuse of government vehicle (iv).Violation of rules in maintenance of cash book (v).Leaving the headquarter unauthorizedly (vi).Unauthorized absence and (vii).Violation of order and misuse of post. In contemplation of departmental proceeding the enquiry officer was appointed. Pursuant thereto, the delinquent-employee appeared before the enquiry officer and submitted show cause reply denying all charges leveled against him. 9. The enquiry officer, taking into consideration the reply submitted by the delinquent officer and the opinion of the presenting officer on the charge, has recorded finding as under: So far charge no. Pursuant thereto, the delinquent-employee appeared before the enquiry officer and submitted show cause reply denying all charges leveled against him. 9. The enquiry officer, taking into consideration the reply submitted by the delinquent officer and the opinion of the presenting officer on the charge, has recorded finding as under: So far charge no. 1, which pertains to embezzlement of public money to the tune of Rs. 15,72,886.07, is concerned finding has been recorded by the enquiry officer that the same has not been established assigning the reason for coming to such conclusion is that the audit for the financial year 2000-01 and 2001-02, which was conducted by the Office of Accountant General, Bihar has not found embezzlement of the public money as alleged and as such there was no report to that effect in pursuance to provision as contained under Rule 44 of the Bihar Treasury Code (Part-I). The enquiry officer has therefore come to the conclusion that the charge itself is without any basis since nothing adverse was found in the audit conducted by the office of the Accountant General, Bihar. So far charge No. 2(ka), which pertains to incurring expenditure to the tune of Rs. 75027/- for the purpose of repairing of the vehicle, is concerned, the enquiry officer on consideration of the various documents as also the defence of the delinquent employee has come to the conclusion that irregularity was committed for not getting the quotation before incurring expenditure on the repairing of the vehicle concerned. Charge No. 3 pertains to the misuse of government vehicle causing loss to the tune of Rs. 46375.15 on account of fuel expenditure but the enquiry officer on consideration on various documents has come to the conclusion that the delinquent was in-charge of four offices and as such the expenditure incurred on fuel to the tune of Rs. 46375.15 cannot be said to have force. However, the enquiry officer has come to the finding that the same was not entered into log book. Further finding has been recorded by taking into defence of delinquent employee that the process of filling up the log book is not upon the delinquent employee rather it is upon the driver. Therefore, it appears from the finding with respect to charge no. 3 that the expenditure incurred in consumption of fuel has also not found to have substance. Further finding has been recorded by taking into defence of delinquent employee that the process of filling up the log book is not upon the delinquent employee rather it is upon the driver. Therefore, it appears from the finding with respect to charge no. 3 that the expenditure incurred in consumption of fuel has also not found to have substance. Charge No. 4 pertains to not maintaining the accounts register properly. However, the enquiry officer on consideration of the documents and the defence of the delinquent employee and the opinion of the presenting officer has found the charge proved and has given a finding that the petitioner has failed in not disproving the charge leveled against her. Charge no. 5 pertains to remaining unauthorizedly absence from headquarter. The enquiry officer on consideration of the documents, the defence of delinquent employee and opinion of the presenting officer, has accepted the explanation furnished to that effect by the delinquent employee. Charge No. 6 pertains to remaining unauthorized absence from 19.10.2001 to 22.01.2002. The enquiry officer on consideration of the said defence has come to the finding that the aforesaid charge of remaining absent for the period concerned is not based upon the evidence. Charge no. 7 pertains to violation of government order and misuse of post. The enquiry officer on consideration of the rival contention as also the documents available on record has concluded that the delinquent employee ‘can’ be said to be at fault. Thereafter, the disciplinary authority, issued second show cause to the petitioner vide memo no. 29.10.2013, to which, the petitioner replied. The disciplinary authority considering the reply submitted by petitioner and the enquiry report inflicted the impugned punishment of withholding of four annual increment with cumulative effect vide order dated 28.02.2014, against which, the petitioner preferred appeal which was also dismissed vide Memo No. 10997 dated 17.11.2014. 10. The learned counsel for the petitioner has submitted that the enquiry report suggests that out of seven charges, two charges i.e., charge No. 4 and 7 have been found to be proved and even charge no. 7 cannot be said to be conclusively proved because enquiry officer has given the finding that the delinquent employee can be said to be at fault, the word ‘can’ suggests that enquiry officer himself was not convinced for establishing the charge in totality so far charge no. 7 is concerned. 7 cannot be said to be conclusively proved because enquiry officer has given the finding that the delinquent employee can be said to be at fault, the word ‘can’ suggests that enquiry officer himself was not convinced for establishing the charge in totality so far charge no. 7 is concerned. Further it has been submitted that the law is well settled that when the enquiry officer has given its finding by not proving the charge the disciplinary officer has got authority to differ with the said finding but before differing with such finding the reason of difference is to be assigned coupled with the fact that the opportunity is to be provided to the delinquent employee for giving explanation. In support of his contention he put reliance on the judgment rendered by Hon’ble Apex Court in Punjab National Bank &Ors Vs. Kunj Behari Misra as reported in (1998) 7 SCC 84 . 11. In response to the argument as advanced by the petitioners the learned counsel for the respondents-State has submitted that the charge no. 4 and 7 since have been found to be proved and if the process has not been followed while imposing the punishment, the matter may be remitted to have an opportunity to the respondent-authority to pass a fresh order after following the principle of natural justice. 12. Heard learned counsel for the parties and perused the documents available on record 13. This Court has taken note of the fact that out of seven charges five charges have not been found to be proved by the enquiry officer and two charges i.e., charge no. 4and 7 have been said to be proved but charge no. 7 has been alleged to be not conclusively proved. The order by which the punishment has been inflicted is at annexure 8 to the paper book wherein the disciplinary authority has discussed each and every charge with the finding of the enquiry report. With regard to charge no. 1 the disciplinary authority very surprisingly has come to its own finding that the embezzlement of Rs. 15,72,886.07 has itself been proved but from where such finding has been arrived at by the disciplinary authority, this Court is failed to understand. With regard to charge no. 1 the disciplinary authority very surprisingly has come to its own finding that the embezzlement of Rs. 15,72,886.07 has itself been proved but from where such finding has been arrived at by the disciplinary authority, this Court is failed to understand. If the finding of the enquiry officer is taken into consideration wherein enquiry officer has given specific finding that the audit conducted by the office of the Accountant General, Bihar in the aforesaid calendar year since has not found any illegality and as such the charge itself has been found to have not been based upon any evidence but even then the disciplinary authority has come to its own finding that the charge of defalcation to the tune of Rs.15,72,886.07 itself is proved. The same is the position with respect to charge no. 2 i.e., the expenditure incurred in the repair of the vehicle. The disciplinary authority has recorded with respect to this charge that actually the vehicle was not repaired. This Court has again come back to the report of the enquiry officer to see as to whether any finding has been recorded to the effect that the vehicle itself has not been repaired but this Court has found that no such finding has been recorded by the enquiry officer save and except the finding that the vehicle ought to have been repaired by inviting quotation/estimate from the automobile service Centre but the disciplinary authority has given a new finding that the vehicle was not repaired differing with the finding recorded by the enquiry officer. The charge no. 3 which pertains to misuse of govt. vehicle by consumption of fuel to the tune of Rs. 46375. The enquiry officer has given finding by disbelieving the aforesaid charge on the basis of fact that the delinquent employee was having charge of more than one post and as such the expenditure of Rs.46375.15 cannot be disputed. However, the enquiry officer has come to the finding that the required reference to that effect has not been entered into the log book and contrary to the said finding the disciplinary authority again prevail upon the aforesaid charge by giving its finding that the aforesaid amount has been defalcated. The charge no. 5 and 6 has also not found to be proved. The charge no. The charge no. 5 and 6 has also not found to be proved. The charge no. 4 has been found to be proved because of the explanation which has been furnished by the defence is not found to have substance to refute the aforesaid charge. The charge no. 7 has also not conclusively been proved since the enquiry officer has made as observation to that effect that which may be said to be proved. It is, thus, evident from perusal of the enquiry report that charge no. 4 has been found to be proved by the enquiry officer however charge no. 7 cannot be said to be proved because of suspicion casted upon the enquiry officer itself. 14. The disciplinary authority however has differed with the finding recorded by enquiry officer without assigning any reason, which is not permissible in the eye of law as per law laid down by Hon’ble Apex Court in the case of Punjab National Bank and Others v. Kunj Behari Misra (supra )at paragraph 19 which reads as under :- “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” Although the disciplinary authority have the jurisdiction to differ with the finding so recorded by the enquiry officer with respect to charge no. 1, 2, 3, 5 and 6 but for that he has to record reason and opportunity to that effect ought to have been given in favour of delinquent employee. 1, 2, 3, 5 and 6 but for that he has to record reason and opportunity to that effect ought to have been given in favour of delinquent employee. The aforesaid process has not been followed, as alleged, and the disciplinary authority in complete defiance to the settled position of law has passed order of punishment vide order dated 28.02.2014, which was affirmed by the appellate authority vide order dated 17.11.2014. 15. Learned counsel for the respondent has contended that charge no. 4 and 7 have been found to be proved therefore matter should be remitted for passing the order afresh but in those circumstances also of not proving the charge no. 1, 2, 3, 5 and 6 the order of punishment of withholding of four annual increments with cumulative effect cannot be said to be justified. 16. This Court is not in disagreement with the submission made on behalf of respondent-State that charge no. 4 and 7 is proved. However, the charge no. 7 cannot be said to be fully proved even accepting the submission made on behalf of respondent-State then the question arises can withholding of four annual increments with cumulative effect be said to be justified? And whether it is not disproportionate to the charge since withholding four annual increments is a major punishment? 17. At this juncture it will be fit and proper to discuss about the scope of judicial review in the matter of decision taken by the disciplinary authority. It is not in dispute that the scope of judicial review is very least to be exercised by the High Court sitting under Article 226 of the Constitution of India. The Hon'ble Apex Court while dealing with the scope of power under Article 226 of the Constitution of India, has considered the same in the case of Union of India vs. P. Gunasekaran reported in AIR 2015 SC 545 wherein at paragraph 13 thereof, the following guidelines has been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision which reads hereunder as: "13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience." The Hon'ble Apex Court in the case of Management of State Bank of India vs. Smita Sharad Deshmukh and Anr. reported in (2017) 4 SCC 75 , has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence. reported in (2017) 4 SCC 75 , has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence. The Hon’ble Apex Court in Central Industrial Security Force and Ors. vs. Abrar Ali, AIR (2017) SC 200, has laid down following guidelines at paragraph 8 for interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is quoted herein below: “8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence.” Furthermore, it is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. Reference in this regard be made to the judgment made in the case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 wherein the Hon’ble Apex Court at paragraph 7 held as under: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.” It is, thus, evident that the Hon'ble Apex Court has formulated the guidelines, as such, the power of judicial review is only to be exercised showing interference with the order passed in departmental proceeding by the administrative authority only if such ground is available otherwise not. One of the guideline is that interference can also be shown in exercise of power of judicial review if the order is found to be disproportionate to the charges levelled against the delinquent employee as has been held by the Hon'ble Apex Court in Union of India Vs. P. Gunasekaran (supra); Management of State Bank of India vs. Smita Sharad Deshmukh and Anr. (supra); Central Industrial Security Force and Ors. vs. Abrar Ali (supra). 18. It also requires to refer herein that while interfering with the order of punishment on the ground of quantum, the same can only be passed if the conscience of the court shocks and in that circumstances, the requirement of law is that the court is to assign the reason that what led the Court to come to the conclusion that how the conscience of the court is shocked holding the order to be disproportionate. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Dev Singh vs. Punjab Tourism Development Corporation and Anr., (2003) 8 SCC 9 ,wherein at paragraph 6, it has been held as under: “6. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Dev Singh vs. Punjab Tourism Development Corporation and Anr., (2003) 8 SCC 9 ,wherein at paragraph 6, it has been held as under: “6. A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” Herein, as has been referred by way of discussion made hereinabove, two charges which has been found to be proved, even accepting the charge no. 7 to be proved according to the respondent-State in that circumstance since the same does not pertain to defalcation of public money rather it can be termed to be irregularity committed thus not so serious warranting the imposition of punishment of withholding of four annual increment with cumulative effect, which is a major punishment. Further, the finding recorded by the enquiry officer regarding defalcation of the public money as per charge no. 1, 2 and 3 have not been found to be proved but the disciplinary authority has prevailed with its view upon the finding of the enquiry officer in order to justify the punishment of withholding of four annual increment with cumulative effect, basis upon the aforesaid premise this Court is of the view that the punishment so inflicted only on account of proving charge no. 4 and 7, withholding of four annual increments cannot be said to be in commensurate with the gravity of proved charge i.e. Charge no. 4 and 7. 19. In view of discussions made hereinabove, this Court is of the view that the order of punishment of withholding four annual increments with cumulative effect according to considered view of this Court requires interference. 20. 4 and 7. 19. In view of discussions made hereinabove, this Court is of the view that the order of punishment of withholding four annual increments with cumulative effect according to considered view of this Court requires interference. 20. Learned counsel for the State has submitted that the matter may be remitted so as to follow the mandate of Hon’ble Apex Court for the purpose of passing fresh order of punishment. 21. There is no dispute that on technicality no advantage can be allowed to be given to the delinquent employee but the aforesaid principle is to be tested on the basis of the facts governing the case. Here in the instant cases, the delinquent employee has died in course of pendency of writ petition i.e., on 16.04.2021 and the order of punishment was passed on 28.02.2014, that the delinquent employee has suffered rigor of departmental proceeding since 2008 after framing of charge for 14 years and before the outcome of the writ petition she has died. The husband and her son are before this Court after substitution. 22. Now the question only would be of the benefit of arrears of salary/computation of pension, if applicable. This issue fell for consideration before the judgment rendered by Hon’ble Apex court in the case of Punjab National Bank &Ors v. Kunj Behari Misra, [ (1998) 7 SCC 84 ]. The Hon’ble Apex Court in the judgment rendered in Punjab National Bank &Ors v. Kunj Behari Misra, [ (1998) 7 SCC 84 ] after taking into consideration the aforesaid fact that the concerned employee has retired way back in the year as such it would not be proper to remit the matter back for passing fresh order on the quantum of punishment so as again to put the rigor of departmental proceeding. For ready reference, paragraph 16 and 21 of the judgment is quoted as under: “16. So far as the argument which has been advanced by the learned counsel for the appellant about the remand of the matter before the disciplinary authority is concerned, there is no dispute about such contention that on technicalities no advantage can be allowed to one or the other delinquent employee, rather, the issue is to be remanded before the concerned authority to take decision afresh but that principle is also to be tested on the basis of the fact of the given case. 21. 21. Both the respondents superannuated on 31-12- 1983. During the pendency of these appeals, Misra died on 6-1-1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals, we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to the respondents. There will, however, be no order as to costs.” Thus, it is evident that the Hon'ble Apex Court in the given facts of the case has refused to remand the matter before the disciplinary authority on the ground that the since the respondent of the said case has retired way back and if the matter will be remitted, it will be nothing but a rigor upon the concerned employee, therefore, the Hon'ble Apex Court has found that the case is not fit to be remanded before the disciplinary authority concerned for taking a fresh decision 23. This Court applying the aforesaid observation made by Hon’ble Apex Court herein also by considering the fact that the departmental proceeding was initiated by framing of charge in the year 2008. The order of punishment was passed in the year 2014. The sole delinquent employee died in the year 2021 as such it would not be proper to remit the matter back to pass fresh order because of the laches and negligence has been committed on the part of State. 24. Further since the delinquent employee herself has died and hence if the matter would be remitted then the question would be arise that against whom the order will be passed, since after demise of the delinquent employee there cannot be any order against dead person. 25. This Court, after taking into consideration the aforesaid fact and the settle legal proposition, is of the view that it is not a fit case where the matter is required to be remanded before the authority concerned for passing fresh order. 26. 25. This Court, after taking into consideration the aforesaid fact and the settle legal proposition, is of the view that it is not a fit case where the matter is required to be remanded before the authority concerned for passing fresh order. 26. Accordingly, on the basis of discussions made hereinabove, this Court is of the view that the impugned order of punishment requires interference and hence order dated 28.02.2014 passed by the disciplinary authority as also appellate order dated 17.11.2014 are hereby quashed and set aside. 27. In consequence thereof, the respondents-State are hereby directed to calculate the difference of arrears of salary and pensionary/retiral benefits and release the same in favour of legal heirs of the deceased-employee within a period of three months from the date of receipt/production of copy of this order. 28. The writ petition stands allowed.