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2005 DIGILAW 325 (PAT)

Deo Baran Singh v. State Of Bihar

2005-03-17

NAVIN SINHA

body2005
Judgment 1. Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. The petitioner in the present writ application assails the order dated 6.7.99 as contained in Annexure 5 to the writ application. The impugned order would record that for certain irregularities in the construction of a bridge and on receipt of an inspection report, an explanation had been called for from the petitioner which was not forthcoming. The petitioner was then visited with two punishments, (a) stoppage of two increments with cumulative effect and (b) "Censure" with effect from 1988-89. 3. Learned Counsel for the petitioner made a short submission that the imposition of a punishment by withholding of the increments with cumulative effect was a major punishment. This would have required a regular disciplinary proceeding to be conducted against the petitioner under Rules 49A and 55 of the Civil Services (Classification, Control and Appeal) Rules. The petitioner should have been served with memo of charges, evidence should have been laid, documents should have been exhibited, followed by submission of an enquiry report and opportunity to show cause against the proposed punishment. In absence of the aforesaid procedure the impugned order stands vitiated in law. 4. The counter affidavit on behalf of the respondents would contend that the punishment imposed upon the petitioner was minor in nature and therefore there was no need to hold a regular departmental proceeding by issuance of memo of charges etc. The impugned order therefore calls for no interference. 5. The petitioner is stated to have superannuated on 31.8.2003 during pendency of the writ application. 6. This Court finds that the present writ application can be disposed off on a short question of law. Learned Counsel for the petitioner has aptly relied upon a judgment of the Supreme Court reported in 1991 Supp. (1) SCC 504 (Kulwant Singh Gill vs. State of Punjab). In support of his proposition as incorporated in para 4 of the aforesaid judgment that withholding of increments for two years with cumulative effect would mean a major punishment. Learned Counsel for the petitioner has aptly relied upon a judgment of the Supreme Court reported in 1991 Supp. (1) SCC 504 (Kulwant Singh Gill vs. State of Punjab). In support of his proposition as incorporated in para 4 of the aforesaid judgment that withholding of increments for two years with cumulative effect would mean a major punishment. This Court would consider it appropriate to quote the following relevant extract from para 4 of the judgment: ".....But when penalty was imposed withholding two increments i.e. for two increments i.e. for two years with cumulative effect, it would indisputably mean that two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years increments would not be counted in his time scale of pay as a measure of penalty....." 7. In so far as the second punishment of Censure be concerned, this Court would find substance in the submission of the learned Counsel for the petitioner that even the said minor penalty was not imposed in accordance with the procedure of Rule 55A of the Civil Services (Classification, Control & Appeal) Rules. Reliance is placed upon Annexures A to C of the counter affidavit filed on behalf of the respondents, to submit that no notices were in fact issued to the petitioner. The alleged notices are staged to have been issued to the petitioner admittedly forwarded to and through the concerned Engineer in Chief for service upon the petitioner. It is the case of the petitioner that these notices were in fact never served upon the petitioner by the concerned Engineer-in-Chief. The respondents would also place no materials before this Court to contend that the notices were in fact so served upon the petitioner or that he wilfully avoided service of the same. 8. In the facts and circumstances, this writ application is allowed. The respondents would also place no materials before this Court to contend that the notices were in fact so served upon the petitioner or that he wilfully avoided service of the same. 8. In the facts and circumstances, this writ application is allowed. The order dated 6.7.99 at Annexure 5 is hereby quashed. The petitioner would be entitled to all consequential benefits including the deductions, if any made in pursuance of the impugned order, and revision of his pensionary benefits. Let the respondents do so within a period of four months from the date of receipt/production of a copy of this order.