Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2401 of 2013 =========================================================== Parmeshwar Prasad Yadav Son Of Late Ram Dayal Prasad Yadav Resident Of Village- Hasanpura, P.O. + P.S.- Marhaura, District- Saran At Chapra. At Present Posted As Superintending Engineer Planning And Development Department Local Area Development Engineering Organization, Patna Division, Patna District- Patna .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Road Construction Department Govt. Of Bihar, Patna 2. The Principal Secretary, Road Construction Department, Government Of Bihar, Patna 3. The Engineer-In-Chief, Road Construction Department, Government Of Bihar, Patna 4. The Deputy Secretary-Cum-Chief Vigilance Officer, Road Construction Department, Government Of Bihar, Patna 5. The Special Officer-Cum-Deputy Secretary, Road Construction Department, Government Of Bihar, Patna 6. The Joint Secretary, Road Construction Department, Government Of Bihar, Patna .... .... Respondent/s =========================================================== Appearance :
Legal Reasoning
For the Petitioner/s : Mr. Dinu Kumar, Adv. Mr. Shiw Kumar Prabhakar, Adv. Mr. Rajesh Kr. Singh, Adv. Mr. Arvind Kr. Sharma, Adv. For the Respondent/s : Mr. Prahlad Kr. Bhagat, GP-13 =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT Date: 28-01-2015 Since this writ application, which was dismissed for default, has been restored today by a separate order in MJC No. 4032 of 2013, learned counsel for the parties have also been heard on merit. Mr. Dinu Kumar, learned counsel for the petitioner while assailing the impugned order of punishment of the petitioner dated 6.2.2008 and its affirmance by order dated 2.1.2010, had basically raised three issues. Firstly, he has submitted that once a memo of charge was framed against the petitioner, there ought to have Patna High Court CWJC No.2401 of 2013 dt.28-01-2015 2 been a regular departmental proceeding but, in this case, neither the enquiry officer was appointed nor any departmental proceeding was conducted. He has secondly submitted that even if the order of punishment against the petitioner had been taken to be a minor punishment and thus a regular departmental proceeding was not required as per the Rules, the petitioner's explanation ought to have been considered because he had disclosed his cogent defence in respect to the allegation which was bifurcated in to six charges. Thirdly and finally, he has submitted that the order of punishment also withholding the payment of salary for the period of suspension is not in accordance with the requirement of Rule 97 (3) of the Bihar Service Code which lays down that an additional opportunity has to be given by the State before inflicting punishment with regard to treating the period of suspension. Mr. Dinu Kumar learned counsel for the petitioner seeks to support his aforesaid submission by placing reliance on an order of this Court dated 4.5.2012 in CWJC No. 10181 of 2007 (Niranjan Kumar Vs. The State of Bihar & Ors.). In the considered opinion of this Court, the first issue raised by Mr. Kumar has to be only noted for its being rejected, inasmuch as, the show-cause notice given to the petitioner vide Annexure-2 will leave nothing for speculation that the respondents had never contemplated to initiate a regular departmental proceeding Patna High Court CWJC No.2401 of 2013 dt.28-01-2015 3 for a major punishment. Once this aspect becomes absolutely clear from perusal of the show-cause notice itself the mere use of expression 'charges' will not mean that the respondents had contemplated to initiate a departmental proceeding for major charges. The provisions made Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 in this regard are very clear that for inflicting minor punishment, no regular departmental proceeding has to be conducted. Having regard to the nature of the order of punishment of either censure or withholding two increments with non- cumulative effect or withholding payment of salary for the period of suspension they are very well be covered by the clause of minor punishment under 2005 Rules. The second issue that there was no consideration to the show-cause reply by the respondents in respect of the show-cause notice issued by them again is not correct. There has been some consideration both with regard to petitioner's failure in getting the work executed as per the prescribed norms in the estimate. There is also a finding that the petitioner failed to do his duty of supervision in capacity of Executive Engineer. True it is that the reasons are not elaborate but at the same time it cannot be said that there was no application of mind. As a matter of fact, when the petitioner had filed his review, though not maintainable, the issue was gone at length and the authorities had given detailed reasons which itself go to show that Patna High Court CWJC No.2401 of 2013 dt.28-01-2015 4 the petitioner was fully responsible for committing misconduct for which a show-cause notice was issued to him. In that view of the matter, this Court does not find any merit in the second contention as well. At this stage, this Court also must make it clear that whatever was held in the case of Niranjan Kumar (supra) not be made applicable to the petitioner because that case was relating to a Junior Engineer as against the petitioner being an Executive Engineer. The impugned order passed in the case of the petitioner is as per the decision taken by the State Government whereas in the case of Junior Engineer, the Engineer-in-Chief being the appointing authority, the order passed by this Court of the case of Niranjan Kumar (supra) will have no application to the facts of the present case. The third and last submission, of Mr. Kumar would however seem to be correct inasmuch as, under Rule 97 of Bihar Service Code, there is a safeguard given to every government servant that any employee placed under suspension and facing departmental enquiry has to be given an additional opportunity for giving a show- cause notice prior to withholding of the payment of salary for the period of suspension. In fact, such provision also has been now made under the 2005 Rules. Thus when it is an admitted fact that no separate show-cause notice was given to the petitioner for this purpose i.e. for withholding salary for the period of suspension, the Patna High Court CWJC No.2401 of 2013 dt.28-01-2015 5 impugned order, to the extent it also goes to withhold the salary of the petitioner for the period of suspension, is declared had and is accordingly hereby quashed and the matter is remitted back to the State Government to re-consider only as with regard to the admissibility of payment of salary for the period of suspension. In the event, the State Government finds that the petitioner will be not entitled to get any salary for the period of suspension, a separate show-cause notice must be given to the petitioner and the petitioner, thereafter, may file his reply whereafter the Government will take appropriate decision with regard to admissibility of the payment of salary for the period of suspension. This application is, accordingly, allowed in part to the extent indicated above. This Court hopes and believes that the issue relating to payment of salary of the period of suspension, as indicated above, will be considered by the State Government and/or competent authority within a period of six months from the date of receipt of this order. (Mihir Kumar Jha, J) Rishi/- U