S.B Sanyal, J.:— In this writ application, the petitioner seeks quashing of Annexure-1, by which the Joint Secretary in the Department of Health, State of Bihar, has imposed a punishment under rule 55-A of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred to as ‘the Rule’.) The punishment imposed is stoppage of two increments with cumulative effect and for making an entry thereof in the character roll of the petitioner.

2. The facts of the case, briefly stated are as follows:— The petitioner is a Medical Graduate and was appointed in the Bihar Medical Service Class II some time in December 1959 and was posted in Turkaulia Block in the district of Champaran. In the year 1963 the petitioner proceeded on leave and obtained his Master of Surgery and in July 1963 he was put in supernumerary duty in the Gulzarbagh Infectious Diseases Hospital. The petitioner thereafter moved from places to places and ultimately came to be posted as Resident Surgical Officer in the Department of Surgery in the Ranchi Medical College Hospital and after he worked for three years, the petitioner obtained leave Ex-India for higher studies, from November 1968. In November 1972 he obtained his F.R.C.S from United Kingdom. On return to India, the petitioner in November 1975 was posted as Medical Officer in M.J.K Hospital, Bettiah. On 7th August 1974 the petitioner received a letter from the Health Commissioner, respondent no. 1, along with a letter of complaint purported to have been written by one Charitar Ram of village Shanker Saraiya, P.S Turkaulia, alleging that while the petitioner was posted as a Medical Officer in Turkaulia Block, he accepted fees of a sum of Rs. 150/- for performing an operation upon him. The petitioner was called upon to explain the said complain. The petitioner has annexed the letter and the complaint, which have been marked Annexures 2 and 2/1. On 17th August 1974 the petitioner replied to the said letter contending that the allegations made against him are wholly false. In April 1973, another similar allegation was communicated to the petitioner said to have been made by one Basant Ram. All these allegations related to the years from December 1959 to February 1963, when the petitioner was the Medical Officer in Turkaulia Block. The petitioner having scented some foul play on the part of some persons inimical to him to disrepute him because of his having obtained higher degree from United Kingdom, he made enquiries from Basant Ram, who frankly confessed that the complaint lodged by him was not founded on any material but purely hear-say. He admitted that he had no personal knowledge about the allegations. A copy of the letter of the said Basant Ram has been annexed and marked Annexure-5 to the writ petition. The petitioner forwarded the said copy of Basant Ram dated 7th of May 1976 to the Health Commissioner and asserted that allegation against the petitioner is wholly misconceived and had been engineered by some interested persons.

3. On 18th of April 1977 the petitioner was asked to show cause by the Joint Secretary of the Health Department, that after inquiry by the Vigilance Department, it had been proved that though the post held by the petitioner was a non-practicing one, he had accepted fees from 11 patients whose names were set out in the said letter. The petitioner was asked to show cause within fifteen days as to why he should not be punished for the same. The said show cause notice is dated 18.4.1977 and has been marked Annexure-7. The petitioner replied to the said show cause notice by Annexure-8 on 2.5.1977 wherein he contended that the allegations are per se false. He also contended that the department having slept over the matter for 14 long years the charge is belated and even the material which led to the said charge is of no consequence inasmuch as the person, who made the complaint, himself stated that the said complaint was based on hearsay and he had no personal knowledge about it.

4. Thereafter, the impugned Annexure-1 has been issued by Shri Lallan Prasad, Joint Secretary to the Government of Bihar in the Department of Health, wherein it has been stated that the Vigilance Department of the Government of Bihar had investigated the complaint against the petitioner and had not accepted the show cause reply as the same was found to be unsatisfactory. The said order further recites that in view of the conclusion arrived at by the Vigilance Department, the petitioner's two increments are stopped with cumulative effect and for making an entry of the same in his character roll. No counter affidavit has been filed on behalf of the respondents.

5. Mr. Mukhopadhya, appearing for the petitioner, has assailed the impugned order contained in Annexure-1 on the grounds, inter alia:—

(a) The Health Department is the appointing and punishing authority of the petitioner, but the said department has abdicated its power in favour of the Vigilance Department inasmuch gas when the petitioner's show cause was required to be considered by the Health Department, the said power has been exercised by the Vigilance Department. The Health Department has acted only, as a transmitting agent.

(b) The impugned order suffers from the vice of being non-speaking one because on a mere perusal of the said order it if manifest that there has been no consideration of petitioner's show cause at all nor any reason has been assigned for rejecting it.

(c) The order suffers from the vice of infraction of principles of natural justice inasmuch as the petitioner has not been communicated all prejudicial papers and materials, which seem to have been taken in passing the impugned order. The only material, which was communicated to the petitioner stands condemned by the author himself as evidenced by Annexure-5. The petitioner has no knowledge of any other material which persuaded the Vigilance Department to conclude that the petitioner is guilty of the charge.

(d) The charge is vague in asmuch as the details of the persons from whom the petitioner is said to have realised fees and the date when he did so is not disclosed, and, therefore, there is denial of an effective opportunity to meet the charge. Further framing of charge after lapse of about 18 years is arbitrary and capricious on the part of the concerned authority.

6. Mr. Ram Balak Mahto, Additional Advocate General, appearing for the State tried to justify the order and contended that there is no substance in most of the contentions raised by the petitioner. He, however, very fairly and rightly conceded that there may be some substance in the arguments of the learned counsel for the petitioner with respect to the first contention.

7. I also do not propose to consider the legality of the submissions with respect to points (c) to (d) as the case can be disposed Off on the submissions of the learned counsel on points (a) and (b). The show couse notice was issued by the Joint Secretary, Health Department as would be apparent from Annexure-7. The reply to the show cause was also addressed to the Joint Secretary, Health Department, but curiously, as is manifest from Annexure-1, the said Joint Secretary instead of himself considering the reply to the show cause, acted merely as transmitting agent and imposed the punishment on the petitioner since the Vigilance Department did not find the reply satisfactory. It is well settled that when power is conferred on a particular authority to exercise such power, it cannot abdicate its responsibility in favour of any one and not even in favour of State Government or the Chief Minister. A delinquent is entitled to judgment of the authority, who is empowered to deal with the matter and not from any one else. The authority empowered must give its independent and unfettered judgment and decide, for itself the question. It is a duty which cannot be shirked nor be evaded. (Vide A.I.R 1952 Supreme Court 16, Commissioner of Police, Bombay v. Gordhandas Bhanji; (1969) 1 SCC 308 : A.I.R 1970 Supreme Court 1896 Partabpur Company Limited v. Cane Commissioner of Bihar).

8. learned counsel for the petitioner has also cited authorities in support of his contention, that there has been no ‘consideration’ of the show cause reply. According to him the word ‘consideration’ in Rule 55-A entitles him to an active application of the mind by the Disciplinary Authority after considering the entire circumstances of the case in order to decide the nature and extent of penalty to be imposed. I find there is much substance in this contention as well.

9. The word ‘consider’ fell for consideration by the Supreme Court in Barium Chemical Limited v. A.J Rana. (1972) 1 SCC 240 : (A.I.R) 1972 Supreme Court 591) though it was in different context. H.R Khanna, J., speaking for the Superme Court observed as follows:—

“The words ‘considers it necessary’ postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word ‘consider’ is to attentively survey, examine, inspect (arch), to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note of, to think deliberately, to think oneself, to reflect, (vide shorter Oxford Dictionary). According to words and phrases-permanent Edn. Vol. 8-A to ‘consider’ means to think with care. It is also mentioned that to ‘consider’ is to fix the mind upon with a view to careful examination, to ponder, study; mediate upon think or reflect with care.”

10. Similar observation has been made by the Supreme Court in the case of The Divisional Personnel Officer, Southern Railway v. T.R Challappaa ((1976) 3 SCC 190 : A.I.R 1975 Supreme Court 2216) where the Superme Court was considering Rule 14 of the Railways Services (Disciplinary and Appeal) Rules 1968, Fazl Ali, J., speaking for the Court, observed:

“The rule making authority deliberately used the word ‘consider’ and not ‘determine’ because the word ‘determine’ has a much wider scope. The word ‘consider’ merely connotes that there should be active application of the mind by the Disciplinary Authority for considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employees………”

11. The impugned order manifests that in this case not only there has been abdication of power to consider in favour of the Vigilance Department, but nothing is decipherable from the impugned order to convince me that there has been at all an application of the mind either by the authority, who has imposed the punishment or on the part of the Vigilance Department. No reasons have been assigned as to why the show cause reply is unsatisfactory. Giving of reasons in support of order which affects a person is also a basic need of the principles of natural justice (See The Siemens Engineering and Manufacturing Co. of India Ltd. v. The Union of India (1976) 2 SCC 981 : A.I.R 1976 Supreme Court 1785). The error of law is apparent on the face of the impugned order. There is no scope but to quash the said order as contained in Annexure-1. The petitioner is entitled to the consideration of the show cause by the Disciplinary authority and the application of the mind of the said authority before imposing any punishment under rule 55-A of the Rules. The authority is required further to give reasons in support of the said order.

12. Learned counsel appearing for the petitioner has drawn my attention to various other authorities in support of his other points, namely, as to the import of the meaning, “adequate opportunity”, as well as, the effect when the charge lacks in particulars. In respect of the said contentions he has relied upon (1973) 1 SCC 680 : A.I.R 1973 Supreme Court 1124 Shadi Lal Gupta v. State Of Punjab ) and (1982) 2 SCC 376 : A.I.R 1982 Supreme Court 937 at 938 State of Uttar Pradesh v. Mohd. Shai.

13. On the point of delay, he has drawn my attention to the case reported in 1968 L.I.C 756 : 1967 LLJ 378 P. Andrews v. District Educational Officer, Bangalore) and A.I.R 1971 Madras 170 E.S Athithyaraman v. The Commissioner, Hindu Religious and Charitable Endowments (Administrative Department) Madras; but since I do not propose to consider the said points at this stage, I refrain from expressing my opinion in relation to those submissions. Before I part with the judgment, I want to make it clear that fair play is the soul of natural justice. If any prejudicial material is used by the Disciplinary authority against the delinquent employee the later must have knowledge of the said material in order to file an effective representation for the consideration of disciplinary authority. The charge must not lack in particulars and must furnish sufficient details to enable the delinquent employee to prepare his defence. It should also not be lost sight of that the delinquent employee is called to answer charges in the year 1977 with respect to matters, said to have occurred between the years 1959 and 1963.

14. In the result, I allow the writ petition and quash the impugned order as contained in Annexure-1 imposing punishment on the petitioner under rule 55-A of the Rules. It will, however, be open to the Joint Secretary of the Health Department to consider the show cause reply of the petitioner in accordance with law in the light of the observations, made above. In the circumstance of this case, there will be no order as to costs.