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2000 DIGILAW 1086 (PAT)

Gaya Prasad Singh v. State Of Bihar

2000-09-06

SUDHANSU JYOTI MUKHOPADHAYA

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Judgment 1. Heard the parties. 2. As the case can be disposed of on short point, it is not necessary to discuss all the facts, except the relevant one. 3. In this case, the petitioner prays for full salary of the period of suspension and the increment, no order having passed in the departmental proceeding to withhold the annual increment. 4. It appears that the petitioner was made an accused in Samastipur P.S. case No. 348/88, wherein after the Respondents decided to initiate a departmental proceeding, for same set of charges, vide order dated 7th April, 1989. The petitioner was suspended and participated in the proceeding. The Enquiry Officer submitted report exonerating the petitioner, but the disciplinary authority without differing with the finding, removed the petitioner by an order dated 3rd April, 1992. 5. The appeal preferred by petitioner was allowed, vide order dated 6th August, 1992 and the case was remanded to disciplinary authority to reconsider the case of the petitioner. 6. The Registrar, Cooperative society, on remand recalled the order of removal and ordered to make further enquiry. The petitioner was subsequently provided with a 2nd show cause notice along with an enquiry report on 2nd December, 1993 and it was proposed to withhold three annual increments with cumulative effect and deduction of 25% pension, with further stipulation that the Respondents proposed not to pay any salary for the period of suspension, except the subsistence allowance. 7. After such 2nd show cause notice, though petitioner replied, no final order was passed and petitioner retired from service on 30th September, 1994. After his retirement, when the petitioner preferred C.W.J.C. No. 4035/95, also challenged the order dated 5th April, 1995, whereby it was ordered to regularise the period of suspension after disposal of the criminal case. 8. The aforesaid case, C.W.J.C.No. 4035/95 was disposed of by this Court on 12th July, 1996 with direction to the Respondents to release 50% of gratuity and leave encashment, with further direction to conclude the departmental proceeding, without waiting for the criminal case. The criminal case was also challenged by petitioner, which is stated to have been quashed by this court. 9. The criminal case was also challenged by petitioner, which is stated to have been quashed by this court. 9. The Registrar, Cooperative Society thereafter, issued impugned order on 9th September, 1997 inflicting punishment of censure with further order that the petitioner will not get subsistence allowance for the period of suspension, though the period will be counted for the purpose of pension. 10. The Respondents were allowed time to file counter affidavit, to state as to whether the petitioner could have been punished after his retirement ? 11. In spite of time granted, no counter affidavit has been filed on behai of the Respondents and facts aforesaid have not been disputed. 12. Admittedly, the petitioner retired from service on 30th September, 1994. After such retirement, there was no occasion for the Respondents to punish the petitioner, departmental proceeding for the purpose of punishment having become redundent. 13. So far as salary for the period of suspension is concerned, the Respondents were liable to take decision in terms with Rule 97(2) of the Bihar Service Code. If the petitioner was exonerated by the Enquiry Officer and the criminal proceeding has been quashed, there was no occasion for the Respondents to withhold salary of the period of suspension. 14. If this court, even after the retirement of petitioner had remitted the matter to the Respondents to pass final order in the departmental proceeding, for the purpose of punishment under Discipline and Appeal Rules, the Respondents having no power, rather they should have dropped the proceeding. 15. I have taken into consideration the fact that the Respondents did not choose to proceed under Rule 43(b) of the Bihar Pension Rules, as mentioned in the impugned order dated 9th September, 1997 and merely intended to inflict punishment of censure, which was not permissible. 16. In the facts and circumstances, and for the reasons aforesaid, I set aside the impugned Memo No. 7992 dated 9th September, 1997 with direction to Respondents to pay the petitioner full salary of the period of suspension, after adjusting subsistence allowance already paid, within three months from the date of receipt/production of a copy of this order. 17. It is needless to say that the petitioner will be entitled for the incre-ments of the year(s) to which he was entitled, but not released because of suspension. 18. The writ petition is allowed with the aforesaid observations and directions.