AMRESHWAR PRATAP SAHI, J.

1. This intra-court appeal has been preferred by the State of Bihar contending that the learned Single Judge while proceeding to quash the punishment order of the respondent-petitioner has erroneously proceeded to base its assessment on the strength of the file notings which ought not to have been taken into account keeping in view the law laid down in the case of Shanti Sports Club and another Versus Union of India and others reported in, (2009) 15 SCC 705, paragraphs 43 to 46. According to the said judgment of the Apex Court, a noting recorded in the file is merely a noting simplicitor and nothing more. It only expresses an opinion and such a noting cannot be treated as a decision of the Government. The contention raised by Shri P.K. Verma, learned Additional Advocate General-3, is that the aforesaid approach of the learned Single Judge clearly amounts to trenching upon the powers of the disciplinary authority, who had differed with the opinion of the enquiry officer and had issued the second show cause notice to the respondent-petitioner before awarding the punishment. It is the contention of Shri Verma that once the disciplinary authority had recorded his difference of opinion, it cannot be said that the second show cause notice suffered from any invalidity on the ground of it being contrary to the notings of the file. It is urged that one of the charges against the respondent/petitioner was clearly to the effect that he had not performed his duties diligently, inasmuch as, had he performed his duties by inspecting the respective police station timely, any such mishap which ultimately resulted in the death of a detenue could have been avoided. It is urged that merely because the respondent/petitioner has not been charge-sheeted in the criminal case that has been instituted against the police officials in the matter relating to the death of a person in custody, the same does not amount to exonerating the respondent-petitioner of the charge of his deficient performance of duty which according to the learned counsel stood proved. It is on this issue that the second show cause notice had been issued and there being no satisfactory reply to the same, the said charge stood proved and the punishment was rightly awarded.

2. Shri Verma further submits that the imposition of costs on the State is also unwarranted, inasmuch as, the action against the respondent-petitioner was taken in good faith on the basis of material on record by the disciplinary authority and, therefore, the inference of mala fides drawn by the learned Single Judge to impose costs deserves to be set aside.

3. Defending the impugned judgment, learned counsel for the respondent-petitioner Shri Siddhartha Prasad has urged that the enquiry report is based on a joint inspection report. Neither the joint inspection report nor the enquiry report indicts the respondent-petitioner. To the contrary, the enquiry report categorically exonerated the respondent-petitioner of all the charges. It is urged that the second show cause was an outcome of suspicion with regard to the nature of the performance of the duties of the respondent-petitioner without any evidence to support the same. The allegation of the involvement of the respondent- petitioner resulting in the death of the person concerned in custody was nowhere proved and consequently, the issuance of the show cause notice on the second occasion was a mala fide act for which there was no basis. This has been found by the learned Single Judge on the basis of the material on record and also after having traversed into the facts causing the death of the person in custody.

4. It is the contention of Shri Prasad that the imposition of penalty was nothing else but a predetermined effort on the part of the then Joint Secretary and this was a case of undue harassment as a result whereof the Court rightly imposed costs on the State.

5. It is, therefore, the submission of the respondent/petitioner t