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2012 DIGILAW 449 (PAT)

Sunil Kumar Srivastava v. State of Bihar

2012-03-14

BIRENDRA PRASAD VERMA, R.M.DOSHIT

body2012
ORDER With the consent of the learned advocates, the Appeal is heard and is decided today. Re. Interlocutory Application No. 1825 of 2012. The delay of 251 days occurred in filing the Letters Patent Appeal is condoned. Interlocutory Application stands disposed of. Re. Letters Patent Appeal No. 309 of 2012. Feeling aggrieved by the order dated 10th May 2011 made by the learned single Judge in CWJC No. 11757 of 2006, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2. The appellant, a Clerk in the Office of the Circle Officer, Kudra, District – Kaimur, Bhabhua, the respondent no. 3 herein, has been, by order dated 22nd March 2003 made by the District Collector, Kaimur, Bhabhua, visited with punishment of withholding of one increment with future effect. The challenge to the said order in CWJC No. 11757 of 2006 has failed before the learned single Judge. Therefore, this Appeal. 3. Learned advocate Mr. Amarendra Kumar has appeared for the appellant. He has submitted that punishment of withholding of an increment with future effect is a major punishment; such punishment could not have been imposed without holding proper disciplinary proceeding. In the present case, the impugned order of punishment was made without initiating a disciplinary proceeding against the appellant. The learned single Judge has erred in holding that the punishment in question is a minor punishment. 4. Learned advocate further submitted that a detailed disciplinary proceeding is required for imposition of a major punishment. 5. Learned advocate Mr. R.S. Singh has appeared for the respondents State of Bihar and others. He has supported the judgment of the learned single Judge. It is admitted that the service of the appellant is governed by the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. Rule 14 of the said Rules provides for various punishments – minor and major. Clauses (vi) to (xi) are the punishments under the head - “Major Penalties”. Clause (v) under the head – “Minor Penalties” provides “Withholding of increments of pay without cumulative effect.” Clause (vi) under the head - “Major Penalties” provides “Withholding of increments of pay with cumulative effect.” Rule 17 of the said Rules provides for procedure for imposing penalties specified in Clauses (vi) to (xi) of Rule 14 of the Rules. It is apparent that withholding of an increment with cumulative effect is treated as a major punishment. It is apparent that withholding of an increment with cumulative effect is treated as a major punishment. The learned single Judge has manifestly erred in holding that the withholding of one increment with future effect was a minor punishment for which a full-fledged disciplinary proceeding was not required. 6. The aforesaid punishment has been imposed upon the appellant on account of his unauthorised absence from service for three days on 13th, 14th & 15th February 2003. The factum of the absence of the appellant is irrefutable and is not denied. However, for imposing any punishment - may be a minor punishment, at least, a disciplinary proceeding in accordance with the principles of natural justice is a condition precedent. A disciplinary proceeding commences when a charge sheet is issued against the delinquent. In the present case, no formal charge sheet has been issued against the appellant. The punishment has been imposed after calling for an explanation for the unauthorised absence. In our view, the order of punishment has been made against the appellant without holding a semblance of disciplinary proceeding. A mere show cause notice to explain the absence cannot be said to be a charge sheet. In the circumstances, we hold that the order of punishment has been made against the appellant without holding a disciplinary proceeding. The order of punishment is, therefore, vitiated. 7. For the aforesaid reason, the Appeal is allowed. The impugned order dated 10th May 2011 made by the learned single Judge in CWJC No. 11757 of 2006 is set aside. CWJC No. 11757 of 2006 is allowed. The order of punishment dated 22nd March 2003 made against the appellant is quashed and set aside. The amount of difference in salary will be paid to the appellant within three months from today. The parties will bear their own cost.