BALDEO PRASAD v. THE STATE OF BIHAR

counter affidavit, though copies of the writ petition were served on the learned government counsel way back on 4.7.2005.

2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The respondent authorities had issued the order dated 30.6.98 (annexure 2), which was an order transferring nine persons of the Education Department to different places. The petitioner was transferred in the capacity of the Block Education Extension Officer, Siwan, to Begusarai, as Lecturer in the Primary Teachers Training College, Shahpur, Begusarai. The petitioner was served with the charge-sheet dated 30.6.99 (Annexure 3), whereby it was alleged that he has not reported for duties at - 2 - Shahpur although one year has lapsed. This was followed by the enquiry report dated 9.3.2000 (Annexure 4). On a consideration of the materials on record, the petitioner was visited with the order dated

1.6.2000 (Annexure 6), whereby he was deprived of two increments with non-cumulative effect, and the same was to be entered in his Confidential Character Roll. It appears on a perusal of this order that the enquiry report had exonerated the petitioner and Arbind Kumar, and the learned disciplinary authority, had inflicted the punishment on both of them without conveying the reasons of the disagreement with the enquiry report. The petitioner challenged the same by preferring CWJC No. 8761 of 2001, analogous with CWJC No. 8671 of 2001 (Arbind Kumar vs. State of Bihar & Ors.), which were allowed by order dated 13.8.2002 (annexure 7). The respective orders of punishment were set aside, and liberty was given to the disciplinary authority to proceed afresh. This was followed by the communication dated 27.12.2002 (Annexure 11), wherein the learned disciplinary authority indicated the reasons for disagreement with the enquiry report, and the petitioner was called upon to show cause as to why appropriate punishment in accordance with law be not taken against him. The petitioner had shown cause by his communication dated

3.2.2003 (Annexure 12). On a reconsideration of the materials on record, the learned disciplinary authority passed the impugned order dated 13.2.2004 (Annexure 14).

3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that deprivation of - 3 - increments with non-cumulative effect is a major penalty within the meaning of rule 49 of the Civil Services (Classification, Control & Appeal) Rules 1930. He relies on the following reported judgments:- (i) 1990 (6) Service Law Reporter 73 (Phulwant Singh Gill v. State of Punjab) = 1990(3) All India Service Law Journal 135 (ii) 2000(3) PLJR 339 (Bachan Prasad v State of Bihar) He next submits that the said Arbind Kumar, a similarly circumstanced employee, has been let off without further action vide order dated 16.7.2003 (Annexure 13).

4. Learned government counsel has supported impugned action without taking pain to file the counter affidavit.

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is indeed correct to state that the Supreme Court has in the said judgment of Phulwant Singh Gill considered the provisions of the Punjab Civil Services (Punishment and Appeal) Rules 1970, which is akin to the provisions of rule-49 of the Bihar Rules. The Supreme Court has held in the context of the Punjab Rules that deprivation of increments with cumulative effect is a major penalty and, therefore, detailed procedure has to be followed. The learned single Judge of this Court had the occasion to follow the same in Bachan Prasad Singh (supra). However, one subsequent development is yet to be noticed to enable us to take a final view in the matter. It appears that the petitioner’s matter was considered either on appeal or suo motu whereafter the respondent authorities have altered the punishment to deprivation of - 4 - two increments with non-cumulative effect. The admitted position is that such punishment is a minor penalty and does not call for detailed procedure. The impugned order, therefore, cannot be faulted. From this angle, the reported judgments are inapplicable to the facts and circumstances of the present case. The contention is rejected.

6. As to the second contention, it appears to me that the materials on record are inadequate to hold that the petitioner was, in contradistinction to the case of Arbind Kumar, subjected to hostile discrimination. The petitioner has not placed on record any material to substantiate the plea of hostile discrimination, except the said order dated 16.7.2003 (Annexure 13). The same was passed in compliance of the said order dated 13.8.2002, passed in CWJC No. 8671 of 2001, in such a situation where an identical order was with respect to the petitioner. The petitioner’s grievance of discriminatory treatment remains unsubstantiated. In any view of the matter, one wrong act cannot nullify another lawful act. In so far as the present petitioner is concerned, it appears to us that three persons were posted at Siwan, namely, Arbind Kumar, the present petitioner, and Ram Nand Yadav, who were transferred from Siwan to different places. Arbind Kumar and Ram Nand Yadav handed over charge promptly, whereas the present petitioner set up defence in the departmental proceeding that he was not aware of the order of transfer. The petitioner’s defence was a blatant lie and was, therefore, rightly rejected by the respondent authorities. - 5 -

7. There is no merit in this writ petition. It is accordingly dismissed. ( S K Katriar )