The principle of double jeopardy and the requirement to consider the petitioner's reply are essential in disciplinary proceedings.

The petitioner has challenged two notifications of the State Government. By notification issued vide memo no. 220(9) dated 07/03/2006 (Annexure- 12B), issued by the Department of Health Medical Education and Family Welfare the following punishments have been imposed upon him:

(i) Censure

(ii) Stoppage of five increments with cumulative effect.

(iii) Withholding of promotion for three years from year of ‘charge’.

(iv) The period during which he remained absent shall be adjusted as leave without pay.

By another resolution/notification dated 16/07/2009 (Annexure 16) issued by Health Department, Government of Bihar, petitioner has been dismissed from service in exercise of power under Rule 76 of the Bihar Service Code. These are the two notifications which are under challenge in the present proceeding.

2. Bare perusal of the impugned orders/notifications show that both the orders have been passed on the basis of one and the same disciplinary proceeding initiated against him with the issuance of charge-sheet vide memo no. 974 (9) dated 29/06/2004. Both the orders are based on the same departmental enquiry and enquiring report and same charge sheet, which fact is not under dispute. In this background, learned counsel for the petitioner has submitted that once the disciplinary authority exercised its power of imposition of punishment by issuing notification dated 07/03/2006 (Annexure- 12/B), for the same purpose, subsequent notification dated 16/07/2009 after more than three years could not have been passed. The subsequent order dated 16/07/2009, he submits, is absolutely beyond jurisdiction and is hit by doctrine of double jeopardy.

3. I am satisfied with the submission made on behalf of the petitioner that once the State Government passed the final order in a disciplinary proceeding against the petitioner on consideration of the report of the enquiry officer and imposed punishment vide order dated 07/03/2006, the disciplinary proceeding stood terminated and therefore on the basis of same departmental enquiry for same set of charges, it could not have passed subsequent order dated 16/07/2009 imposing upon the petitioner punishment of dismissal from service. The impugned order issued by the Health Department, Government of Bihar, dated 16/07/2009, as contained in Annexure 16 to the writ application, is not sustainable, on the principle that for the same charge, the petitioner could not have been punished twice. As a matter of fact, there was no disciplinary proceeding pending against the petitioner after final order dated 07/03/2006 was passed imposing upon the petitioner punishment as indicated above. There is no rule or other statutory provision which confers upon the disciplinary authority any jurisdiction to pass an order after termination of departmental proceeding. The resolution dated 16/07/2009 is thus beyond jurisdiction and is quashed.

4. Learned counsel appearing on behalf of the petitioner has also contended that even the earlier order dated 07/03/2006 imposing the punishment upon the petitioner is not sustainable for more than one grounds. He submits that after the conclusion of departmental enquiry, the enquiry officer submitted its report and upon consideration of the evidence on record, came to the specific finding that charge against the petitioner could not be established. The charge against the petitioner was that he remained absent unauthrozedly for the period 26/10/1992 to 19/09/1997 and 20/09/1997 to 22/06/2001. The petitioner was at the relevant point of time, posted in Patna Medical College Hospital. He contends that no tentative notes of disagreement with the findings of the enquiry officer were ever served upon the petitioner before imposing the punishment vide notification dated 07/03/2006. He has further contended that admittedly the petitioner had replied to second show cause notice served upon him after submission of the report of the enquiry officer. Referring to the impugned order dated 07/03/20