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2007 DIGILAW 1070 (PAT)

Kanti Sinha v. State Of Bihar

2007-07-04

BARIN GHOSH, REKHA KUMARI

body2007
Judgment Barin Ghosh and Rekha Kumari JJ. 1. In terms of the service conditions of the appellant Civil Services (Classification, Control and Appeal) Rules applies to the contract of employment of the appellant. Rule 49 of the said Rules provides what punishment may be awarded to a person governed by the said Rules. Three of them are: (1) Censor; (2) Withholding of increments or promotion including stoppage of Efficiency Bar; and (3) Recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders. Rule 55 of the said Rules contemplate an enquiry before awarding punishments as are awardable under the said Rules and prescribes the manner of conducting such enquiry. Rule 55A of the said Rules is an explanation to Rule 55 thereof. Rule 55A provides that without making an enquiry as elaborated in Rule 55, three of the punishments, as mentioned above, may be awarded upon allowing the delinquent to know the charges against him, giving an opportunity of making a representation in relation thereto and after considering such representation. 2. In the instant case a charge-sheet was issued against the appellant, which contained four charges. One of the charges was unauthorised absence from 1st March, 1993 to 5th March, 1993 after giving an application for leave. The appellant gave a reply to the charge-sheet and thereupon an Enquiry Officer was appointed to enquire into those charges. The Enquiry Officer enquired into the matter and then submitted his report to the Disciplinary Authority. The copy of the enquiry report was not furnished to the appellant. He was, however, straightway punished. The punishment, as was awarded, was withholding of one increment with cumulative effect. Inasmuch as the appellant was suspended in contemplation of the disciplinary proceeding and inasmuch as such suspension was revoked, in purported compliance of the obligations under Rule 97 of the Bihar Service Code, the punishment order mentioned that during the period of suspension the appellant shall not be entitled to anything over and above subsistence allowances. While the punishment was so awarded, the disciplinary authority held out that the charges against the appellant stand proved. 3. Originally the appellant approached this Court by filing a writ petition seeking to challenge the suspension order. During the pendency of the writ petition, the punishment order was passed. While the punishment was so awarded, the disciplinary authority held out that the charges against the appellant stand proved. 3. Originally the appellant approached this Court by filing a writ petition seeking to challenge the suspension order. During the pendency of the writ petition, the punishment order was passed. The appellant, therefore, amended the writ petition to challenge the punishment order also. 4. At the hearing of the writ petition the enquiry report was produced. The enquiry report suggested that the Enquiry Officer opined that the charge that the appellant remained absent unauthorisedly from 1st March, 1993 to 5th March, 1993 after making an application for leave stood proved. The enquiry report did not suggest that any other charge levelled against the appellant in the charge-sheet stood proved. 5. A learned single Judge of this Court dealt with the writ petition. The learned Judge felt, although no such plea was taken by the respondents, that the procedure adopted, which resulted in the punishment order, was in accordance with Rule 55A of the said Rules. The learned Judge felt that withholding of one increment with cumulative effect is not a major punishment as held by the Hon ble Supreme Court in the case of Executive Director, Syndicate Bank & Ors. vs. K.C. Arya & Anr.; reported in 1996 Vol. 2 LLJ 727, and, accordingly, such punishment can be meted out after taking recourse to Rule 55A of the said Rules. 6. In Executive Director, Syndicate Bank {supra) the Hon ble Supreme Court was considering the Rules governing the service conditions of the employees of the Syndicate Bank. The Rules in no uncertain terms laid down that withholding of increment with cumulative effect is a minor punishment and to award such minor punishment the procedure prescribed to inflict such punishments can be adopted. 7. In the said Rules there is no concept of either minor punishment or major punishment. The Rules provide what punishments can be awarded and to award what punishment what procedure is to be followed. No doubt, to withhold increment procedure prescribed in Rule 55A of the said Rules can be adopted. The question is whether withholding of increment can be equated with withholding of increment with cumulative effect. One of the punishments mentioned in Rule 49 of the said Rules is reduction to a lower stage in a time scale. No doubt, to withhold increment procedure prescribed in Rule 55A of the said Rules can be adopted. The question is whether withholding of increment can be equated with withholding of increment with cumulative effect. One of the punishments mentioned in Rule 49 of the said Rules is reduction to a lower stage in a time scale. Rule 55A does not authorize inflictment of such punishment by taking recourse to Rule 55A of the said Rules. To inflict a punishment of reduction to a lower stage in a time scale, the one and the only method prescribed to be adopted has been furnished in Rule 55 of the said Rules, which as aforesaid, requires an enquiry and conclusion of the matter after enquiry. In such view of the matter, we are of the view that the learned Judge erred in holding that punishment of withholding of one increment with cumulative effect can be awarded by taking recourse to Rule 55A of the said Rules, for the effect of withholding of one increment with cumulative effect, would have the same result as that of reduction to a lower stage in a time scale. 8. Before the learned single Judge the appellant contended that the materials brought on record by the Enquiry Officer contained a certificate issued by the Controlling Officer of the appellant and that certificate suggested that the appellant had obtained leave from 1st March, 1993 to 4th March, 1993. The appellant contended that the Enquiry Officer did not brush aside the said certificate, but while expressing opinion completely ignored the same and if before the punishment order had been passed a copy of the enquiry report was served upon the appellant, he would have pointed out the same to the Disciplinary Authority and, accordingly, the Disciplinary Authority might have taken a different view. This aspect of the matter was not at all considered by the learned single Judge. 9. It would be evidenced from the charge-sheet itself that the application for leave was on record. The question was whether on such application the leave was accorded or not. This aspect of the matter was not at all considered by the learned single Judge. 9. It would be evidenced from the charge-sheet itself that the application for leave was on record. The question was whether on such application the leave was accorded or not. At the time of admission of the present appeal, appropriate register of the Department, where the appellant was then working, maintained for the purpose of recording according of leave had been produced, which suggests that not only the application for leave for the period 1st March, 1993 to 4th March, 1993 was submitted but the same was also granted. The other register that had been produced suggests that a telegram for extension of leave was duly received before expiry of the leave. If a copy the enquiry report was furnished to the appellant before the punishment order had been passed, appellant could bring to the notice of the Disciplinary Authority the above facts. For non-furnishing of enquiry report to the appellant before the punishment order was passed, the appellant, therefore, was genuinely prejudiced and he suffered. 10. In the normal circumstances, in a situation of this nature the duty of the court is to quash the punishment order and to remit back the matter to Disciplinary Authority after giving an opportunity to the appellant to make a representation in relation to the enquiry report with liberty to the Disciplinary Authority to pass a fresh order, but having regard to the fact that the records, as discussed by us, would clearly demonstrate that the sole charge in no circumstances can be proved, it would be an idle formality to remit the matter back to the Disciplinary Authority and more so when the appellant has retired in the year 2003. 11. The conclusion, therefore, would be that on the basis of the materials brought on record, the one and the only conclusion would have been that none of the charges as were levelled against the appellant in the charge-sheet stood proved. In such circumstances, the mandate of Rule 97 of the Bihar Service Code is to direct payment of salaries otherwise due but not paid during the period of suspension. 12. In the circumstances, the appeal is allowed. In such circumstances, the mandate of Rule 97 of the Bihar Service Code is to direct payment of salaries otherwise due but not paid during the period of suspension. 12. In the circumstances, the appeal is allowed. The order under appeal is set aside and the writ petition is allowed by quashing the punishment order and by directing payment of salaries for the period of suspension less subsistence allowances already paid. Let the above payment be effected within a period of three months from today.