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2003 DIGILAW 716 (PAT)

Pramod Kumar v. Champaran Kshetriya Gramin Bank

2003-07-16

NAGENDRA RAI, RAJENDRA PRASAD

body2003
Judgment 1. This appeal is directed against the order dated 27.1.2003, passed by the learned Single Judge dismissing the writ application filed by the appellant challenging the order of punishment awarded after completion of the departmental proceeding as well as the order holding that the period of suspension shall not be treated as a period spent on duty. 2. The writ petition was filed challenging the order passed by the disciplinary authority imposing punishment. The respondent-Bank filed a counter-affidavit stating that after imposition of penalty and withdrawal of the suspension order, an order has also been passed in terms of Regulation 30(4) of the Champaran Kshetriya Gramin Bank Service Regulation, 1980 (hereinafter referred to as the Service Regulation) holding that the period of suspension shall not be treated as a period spent on duty. Thereafter, the appellant filed an interlocutory petition challenging the said order dated 30.4.1998 as Annexure 13 to the writ application. 3. The facts which are not in dispute are that the appellant is an employee of the respondent-Bank. With regard to certain allegations, a departmental proceeding was initiated and the appellant was given full opportunity of hearing and, thereafter, the order of punishment was passed by the disciplinary authority on 31.3.1998 imposing penalty of withholding of four increments with cumulative effect. The appellant preferred an appeal, which was dismissed with modification on 2.9.1999 and the penalty of withholding of four increments was reduced to two increments. 4. It appears that the appellant was suspended during the continuance of a departmental proceeding on 21.3.1995 and the said order of suspension was withdrawn on 31.3.1998 by a separate order, on which date order of punishment was passed. Subsequently, the disciplinary authority, by order dated 30.4.1998, has ordered that the period of suspension shall not be treated as a period spent on duty. So far as the imposition of penalty by the appellate authority is concerned, the learned Single Judge found no legal infirmity in the said order and dismissed the writ application. 5. Learned counsel appearing for the appellant in this Court has also not been able to persuade us to take a different view in the matter regarding imposition of penalty. Accordingly, this Court does not find any legal infirmity or material irregularity in the order of imposition of penalty. 5. Learned counsel appearing for the appellant in this Court has also not been able to persuade us to take a different view in the matter regarding imposition of penalty. Accordingly, this Court does not find any legal infirmity or material irregularity in the order of imposition of penalty. He, howeve, challenged the order dated 30.4.1998 holding that the period of suspension shall not be treated as a period spent on duty and submitted that the said order has been passed without giving an opportunity to the appellant of being heard. 6. Learned counsel appearing for the Bank, on the other hand, submitted that proviso to Regulation 30(4) of the Service Regulation does not require to give an opportunity of hearing and in absence of any such provision, no opportunity was given to the appellant before exercising the power under the aforesaid provision. 7. The learned Single Judge has agreed with the contention of the Bank and held that there is no requirement of giving an opportunity of hearing before exercising the power under Regulation 30(4) of the Service Regulation. Thus, the only question to be considered in this case is as to whether an opportunity of hearing is to be given to the person concerned or not while deciding the question as to how the period of suspension is to be treated as provided under Regulation 30(4) of the Service Regulation. 8. Before proceeding to consider the submissions advanced at the Bar, it is apt to quote Regulation 30{4) of the Service Regulation, which runs as follows : "30(4) An Officer or employee may be placed under suspension by the officer empowered to pass the final order under regulation. During such suspension, the officer or employee shall receive subsistence allowance equal to one-third of basic pay the officer or employee was receiving of the date prior to the date of suspension, plus dear-ness allowance & other allowances excluding conveyance allowance entertainment allowance and special allowance calcualted on the reduced pay for the first three months of suspension. For the subsequent period after three months he shall be entitled to draw 1/2 of the basic pay plus the dearness allowance and other allowances specified above calculated on the reduced pay. For the subsequent period after three months he shall be entitled to draw 1/2 of the basic pay plus the dearness allowance and other allowances specified above calculated on the reduced pay. Provided that if no penalty under clause (b), (c), (d), (e) or (f) of sub-regulation (I) imposed the officer or employee shall be refunded the difference between the subsistence allowance and the emoluments which he would have received but for such suspension, for the period he was under suspension and that, if a penalty is imposed on him under all or any of the said clauses, no order shall be passed which shall have the effect of compelling him to refund such subsistence allowance. The period during which an officer or employee is under suspension shall, if he is not dismissed from the service, be treated as spent on duty, leave or period not spent on duty as the officer who passes the final order may direct." 9. According to the said proviso, in case no punishment is awarded to the employee, then the employees shall be refunded the difference between the subsistence allowance and the emolumen which he would have received. But for the period of suspension, in case the penalty other than dismissal is imposed on en ployee then in that case it is for the disciplinary authority to decide as to how the period of suspension is to be treated. in case, the employee is not dismissed from service, the disciplinary authority will consider the matter and treat the period of suspension as spent on duty, leave or period not spent on duty. In other words, the discretion has been vested in the disciplinary authority to decide the question and to pass an order as to whether the period of suspension is to be treated as a period spent on duty or the same would be treated as a period not spent on duty. 10. No doubt, the aforesaid proviso to Regulation 30(4) of the Service Regulation does not provide for giving an opportunity of hearing but the said proviso has to be read in such a manner as to cast a duty on the authority to act justly and fairly and not arbitrarily or capriciously. The order passed by the authority for treating the period of suspension as a period not spent on duty visits the employee with civil consequences. The order passed by the authority for treating the period of suspension as a period not spent on duty visits the employee with civil consequences. In such a situation, the principle of natural justice has to be read in the provision for the simple reason that the aim of the principle of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. Even if the provision is silent, the nature of the power conferred on the authority, the manner in which the power is expected to be exercised and the consequences of the order are to be looked into to decide as to whether opportunity of hearing is to be given or not. 11. Taking into consideration the fact that the discretion has been vested in the authority and that the order passed by the authority may be prejudicial or detrimental to the employee, it is implied that an opportunity of hearing is to be given to the concerned employee before passing the order under proviso to Regulation 30(4) of the Service Regulation. 12. Rule 97 of the Bihar Service Code contains a provision, inter-alia, as to how the period of suspension is to be treated in case of reinstatement/imposition of penalty. Under the said provision, there is no requirement of giving an opportunity of being heard before passing such an order. The said provision was considered by a Division Bench of this Court in the case of Mahabir Prasad V/s. State of Bihar, reported in 1988 P.L.J.R. 82 and it was held that opportunity to show cause is to be given before passing an order detrimental to the employee. 13. Thus, we are of the considered view that the order passed by the respondent-authority, as contained in Annexure 13 without affording an opportunity to the appellant of being heard is visited in law. Accordingly, the order dated 30.4.1998, as contained in Annexure 13, is quashed with liberty to the respondent-authority to pass a fresh order after giving an opportunity of hearing to the appellant. 14. In the result, this appeal is allowed in part.