Ram Lakhan Kunwar v. State of Bihar — 1989 DIGILAW 228 (PAT)

JUDGMENT S.B. Sinha, J. The writ petition is directed against an order dated 27.1.1982 passed by the District Judge Giridih, as contained in Annexure-4 to the writ application whereby and whereunder the petitioner was inter-alia awarded a punishment of stoppage of two increments. 2. The facts of the case lie in a very narrow compass. 3. The petitioner was appointed and has been working in the Judgeship of Giridih as a process server. Allegedly the petitioner' had left the headquarters upon receipt of a letter on 3.10.1981, whereby he was informed that his son was suffering from illness. 4. The petitioner, allegedly taking advantage of the annual vacation of Civil Court left Tenughat. He availed the annual vacation from 4.10.1981 to 22.10.1981 and he was also permitted to leave the Headquarter. 5. It appears that the petitioner was allotted roster duty from 24.10.1981 till 9.11.1981 but he did not join his duties during the aforementioned period. 6. The petitioner filed an application for extention of leave dated 26.10.1981 which wag received in the Nazarat at Tenughat on 12.11.1980. On the charges of remaining absent from duties without obtaining prior leave, a disciplinary proceeding was initiated against the petitioner and he was also placed under suspension. 7. The enquiry officer after taking into consideration the fact that although the petitioner was not granted leave for the period from 24.10.1981 to 9.11.1981, he could not remain present to perform his duties owing to his son's illness. 8. Despite the said recommendations by orders of' the District Judge, Giridih, two increments of the petitioner was with-held by reason of the order as contained in Annexure-4 to the writ application. The petitioner thereafter preferred an appeal to the administrative side of the High Court and by reason of an order as contained in Annexure-5 to the writ application, the said appeal was also dismissed. 9. Shri M. P. Sinha, the learned counsel appearing on behalf of the petitioner submitted that the impugned orders are wholly illegal, as the petitioner could not have been punished despite recommendation of the enquiry officer to the effect that the absence of the petitioner was bona fide. It was further submitted that in any event his subsistence allowances could not have been directed to be forfeited. It was further submitted that in any event his subsistence allowances could not have been directed to be forfeited. The learned counsel appearing on behalf of the petitioner further contended that in view or sub-rule 2 of Rule 166 of the Boards' Miscellaneous Rules, the petitioner was entitled to a second show cause notice and as in the instance case no such notice has been served upon him, the impugned order of punishment is vitiated in law. 10. The learned counsel next submitted that in the instant case Rule 165 of the Bihar Service Code shall apply and as the petitioner has not been found to be a wilful absentee during the period 23.10.1981 till 9.11.1981, he cannot be said to have committed any misconduct within the meaning of Sub-rule 2 of Rule 165 of the said rules. 11. Mr. Narayan Roy learned Government Pleader No. 2 appearing on behalf of the State, on the other hand submitted that in the instant case the petitioner filed an application for grant of leave dated 26.10.1981 on 12.11.1981 during annual vacation. 12. The learned Government Pleader No. 2 further submitted that in this view of the matter, the petitioner is guilty of the charges levelled against him as wilful absence on his part is also evident from the findings of the enquiry officer. In reply to the second contention raised on behalf of the petitioner Mr. Roy submitted that the District Judge being the disciplinary authority has the requisite jurisdiction to pass orders relating to payment of subsistence allowance. 13. With regard to the third contention of Shri Sinha, Mr. Roy submitted that the provisions of Rule 165 of Bihar Boards Miscellaneous Rule have no application in the facts and circumstances of this case, in as much as the petitioner was inflicted with a minor punishment. 14. In reply to the 4th contention raised by Shri Sinha, Mr. Roy submitted that in view of the fact that as the petitioner was not on casual leave from 4.10.1981 to 22.1.1981, the question of invoking the provisions of Rule 165 of the Bihar Services Code does not arise. 15. 14. In reply to the 4th contention raised by Shri Sinha, Mr. Roy submitted that in view of the fact that as the petitioner was not on casual leave from 4.10.1981 to 22.1.1981, the question of invoking the provisions of Rule 165 of the Bihar Services Code does not arise. 15. It was further submitted that it is not correct to say that the learned District Judge has directed for payment of half salary to the petitioner but only directed that during the period of his suspension he would not get any more sum than paid to him by way of subsistence allowance. 16. In this case, the petitioner himself has admitted in the writ application that he was allotted the roster duty with effect from 23.10.1981 to 9.11.81. 17. In the counter affidavit filed on behalf of the respondents it has been stated that the aforementioned application for grant of leave was received in the office of the Judge Incharge, Nazarat, Bermo only on 22.11.1981. The petitioner has not filed any reply and or rejoinder to the aforementioned counter affidavit. 18. Mr. Sinha, learned counsel appearing on behalf of the petitioner states that the copy of the counter affidavit was not served on the petitioner. When the case was taken up for hearing, the counsel for the petitioner did not raise this question. Further it appears from the record that copy of the counter affidavit could not be served upon Mr. Sinha as he was not available in court and the copy of the counter affidavit was on the records, but despite the same, Mr. Sinha did not take the same from the Court. In this view of the matter, in my opinion, the counter affidavit filed on behalf of the State can be looked into. 19. In any event, the petitioner himself has admitted in the writ application that although he was allotted roster duty with effect from 23.10.81, he sent an application dated 26.10.1931 to the Nazir to grant him leave. 20. The petitioner has not pointed-out in the writ application as to when the said application for grant of leave was received in the office of the Judge Incharge of Nazarat of Tenughat at Bermo. 20. The petitioner has not pointed-out in the writ application as to when the said application for grant of leave was received in the office of the Judge Incharge of Nazarat of Tenughat at Bermo. Further he has not stated as to why despite his knowledge that he was allotted roster duty with effect from 23.10.1981 he sent an application allegedly for grant of leave only on 26.10.1981. 21. The enquiry officer in his report as contained in Annexure-2 to the writ application, found that the petitioner upon receipt of at letter on 3.10.1981 proceeded to Patna allegedly on the basis of permi3sion granted to him by the Nazir to leave the head quarters. 22. In a writ application filed under Articles 226 and 227 of the Constitution of India, this court cannot embark upon an enquiry with regard to the disputed questions of fact. The District Judge who is the appointing authority having taken into consideration the report of the enquiry officer has come to a conclusion that the charges levelled against the petitioner have been proved. 23. By an order dated 27.1.1982 as contained in Annexure-4 to the writ application, he upon taking into consideration the finding of the enquiry officer that the petitioner did not attend to his duties without any reasonable cause imposed a minor punishment upon him and I do not find any illegality in the order passed by the District Judge, Giridih. 24. In my opinion, the first contention raised on behalf of the petitioner has no substance. 25. By reason of the aforementioned order dated 21.1.1982 with regard to the subsistence allowance, it has been mentioned as follows :- "He will not be allowed to get any amount more than subsistence allowance for the period of his suspension". 26. This, according to the learned counsel for the petitioner, amounts to forfeiture of the salary of the petitioner which cannot be accepted, 27. It is admitted at the bar that Bihar Service Code, 1952 applies to the case of the petitioner. In terms of Sub-rule 2 of Rule 97 when a Government Servant has been fully exonerated, or if in the case of suspension that it was found to be wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed removed or suspended, as the case may be. But in terms of Sub-rule 3 of Rule 97 the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe. 28. Sub-Rule 5 of Rule 97 provides that in a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose. 29. In view of the fact that the District Judge being the appointing authority' was the superior authority in terms of Rule 97 of the Bihar Service Code, the contention raised on behalf of the petitioner has no substance. 30. Mr. Sinha has drawn my attention to note 1 appended to explanation 3 of rule 2 of the Bihar Subordinate Services (Classification, Control and Appeal) Rules and contended that by reason thereof Rules 165 to 170 of the Bihar and Orissa Boards Miscellaneous Rule, 1939 must be held to be incorporated by reference. In the instant case as mentioned hereinbefore the petitioner was imposed a punishment of with-holding two increments only. 31. In a case where an order of dismissal, removal, compulsorily retirement or reduction in rank is to be passed, Rule 55 of the Civil Service (Classification, Control and Appeal) rules applies. In other cases namely in a case when the punishments mentioned in clause (1), (2) or (4) of rule 49 applies, the procedure as laid down under Rule 55A of the aforementioned Rules are to be followed. 32. In this view of the matter, it is clear that Rules 165 to 170 of the Board Miscellaneous Rules are to be followed only in a case of dismissal, removal, compulsory retirement or reduction in rank. From the aforementioned fact it is absolutely clear that Rule 166 (2) of the Boards Miscellaneous Rule which provides for issuance of second show cause notice with regard to the quantum of punishment upon a procedure cannot have any application whatsoever in the instant case; which is also evident from Rule 166 of the Boards Miscellaneous Rules itself. 33. Mr. From the aforementioned fact it is absolutely clear that Rule 166 (2) of the Boards Miscellaneous Rule which provides for issuance of second show cause notice with regard to the quantum of punishment upon a procedure cannot have any application whatsoever in the instant case; which is also evident from Rule 166 of the Boards Miscellaneous Rules itself. 33. Mr. Sinha has relied upon a decision of this Court reported in 1982 P.L.J.R. page 228 wherein it has been held that despite amendment made in clause 2, Article 311 of the Constitution of India by the 42nd Amendment Act, 1976, a second show cause notice is necessary in terms of Rule 166 of the Boards Miscellaneous Rules. In view of the fact that in the instant case, the proceeded was not proceeded with in the departmental proceeding for such misconduct which would have entailed punishment of dismissal, removal or reduction in rank, the said decision has no application in the instant case. 34. It may however be mentioned that even in terms of clause 2 of Article 311 of the Constitution of India, a second show cause notice with regard to the quantum of punishment was to be issued only in a case of dismissal, removal or reduction in rank. 35. In this view of the matter, the contention raised in this regard by the learned counsel appearing on behalf of the petitioner must be held to be without any substance. 36. So far as the last submission raised on behalf of the petitioner viz. the applicability of Rule 165 of the Bihar Service Code is concerned, it is necessary to look into the said provisions which reads as follows ;- "A government servant who remains absent after the end of his leave is entitled to no leave salary for the period of such absence and that period will be debited against his leave account". 37. As noticed hereinbefore the submissions raised on behalf of the learned counsel for the petitioner was that the period of absence from 4.10.1981 to 22.10.1981 should be regarded as absence in terms of the aforementioned rule 165. 37. As noticed hereinbefore the submissions raised on behalf of the learned counsel for the petitioner was that the period of absence from 4.10.1981 to 22.10.1981 should be regarded as absence in terms of the aforementioned rule 165. However, in the writ petition itself, the petitioner has categorically stated in paragraph 7 to 14 of his writ application that during annual vacation all persons are not allotted duties and the petitioner having not been allotted with any duties the period 4.10.1981 to 22.10.1981, he left the headquarters after obtaining permission from Nazir. The enquiry officer has also held in paragraph 2 of his report that petitioner obtained permission from Nazir for leaving the headquarter from 4.10.1981 to 22.10.1981. The petitioner, therefore has not stated the foundational facts in his writ application necessary for attracting the rule 165 of the Boards Miscellaneous Rule. In Bharat Singh and ors v. State of Haryana reported in A.I.R. Supreme Court 1981 page 2181, it has clearly been pointed out that it is necessary for the writ petitioner to State the foundational facts on the basis whereof the cause of action for obtaining a relief are founded. In view of the fact that the petitioner has not laid-down the foundational facts in his writ application for applying rule 165 of the Bihar Service Code, contention of Shri Sinha in this regard cannot be accepted. In any event on a plain reading of rule 165 as also the statements made in the writ petition and the findings arrived at by the learned in inquiry officer it is dear that the petitioner did not file any application for leave from 3.10.1981 to 22.10.1981 but left the headquarter, upon obtaining permission therefor. 38. Further in terms of 166 of the Bihar Service Code absence of duty for a short period on casual leave is not governed by the rules in the said Chapter. It is not the case of the petitioner that he filed any application for grant of casual leave or any other type of leave for a long period in relation whereof, Chapter 6 of the Bihar Service Code will apply. 39. Thus, taking into consideration the facts and circumstances of this case I am of the view that there is no merit in this application and the same is thus dismissed. 39. Thus, taking into consideration the facts and circumstances of this case I am of the view that there is no merit in this application and the same is thus dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.