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2018 DIGILAW 1310 (PAT)

State of Bihar v. Yashoda Devi

2018-08-16

CHAKRADHARI SHARAN SINGH, JYOTI SARAN

body2018
Jyoti Saran, J. – Re:I.A.No. 8796 of 2017 This interlocutory application has been filed for condonation of delay of 203 days in filing the appeal. 2. A usual plea of procedural delay occasioning due to file being processed at various levels has been assigned as a reason for the delay caused in filing the appeal. 3. Having heard Mr. Dinesh Maharaj, learned AC to AAG-11 on the condonation application, we are of the opinion that even if his persuasive submission would allow us to consider the prayer for condonation, the facts leading to the nature of penalty imposed is so absurd and contrary to the provisions of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as ‘the Disciplinary Rules, 2005’) that we are satisfied to note that a condonation of delay would be an exercise in futility. 4. We note from the pleadings in the writ petition that of the four charges framed against the deceased petitioner, the disciplinary authority, though found three charges proved, but since the evidence on the 4th charge i.e. interpolation of record which was directly connected with the other charges, was not held proved that the original petitioner was given the benefit of doubt for being exonerated of all the charges. In other words, the charges were dropped. In normal circumstance and if the disciplinary authority would have proceeded as per the Rules, then there was nothing further to be done insofar as the disciplinary case is concerned. However, two serious mistakes were committed by the disciplinary authority while passing the order of penalty on 20.02.2006, namely: – (a) The original petitioner having superannuated in the meanwhile on 29.02.2004, no penalty as envisaged under Rule 14 of ‘the Disciplinary Rules, 2005’ could have been imposed on him, however, the disciplinary authority or the State, as the case may be, could have imposed a penalty envisaged under the Bihar Pension Rules; and (b) Even for the sake of assumption, if we would assume that the disciplinary authority was empowered to impose a penalty under ‘the Disciplinary Rules, 2005’, he certainly could not have travelled beyond the penalty as provided under Rule 14 of ‘the Disciplinary Rules, 2005’. 5. 5. In the present case, the disciplinary authority having exonerated the deceased petitioner of the charges, yet has passed an order of penalty that he would not be entitled to any salary for the suspension period, save and except what he has drawn by way of subsistence allowance. We note that Rule 14 of ‘the Disciplinary Rules, 2005’, does not conceive of any such punishment nor vests jurisdiction in the disciplinary authority to withhold the salary and allowances of a delinquent for the suspension period. 6. No doubt, there is an enabling power present under Rule 11 of ‘the Disciplinary Rules, 2005’ with the disciplinary authority to pass appropriate order as regarding admissibility of pay and allowances on reinstatement of the original petitioner after revocation of suspension or on conclusion of the proceeding, but then this exercise is distinct from exercising disciplinary control, which may or may not culminate in an order of penalty as conceived under Rule 14 of ‘the Disciplinary Rules, 2005’. In fact an exercise of jurisdiction by a disciplinary authority under Rule 11, Rule 12 or Rule 13 are consequential on a culmination of disciplinary proceeding and may be relatable thereto, but this exercise in no manner is a part of disciplinary exercise. 7. Our discussions above would confirm that the order of penalty was neither sustainable on jurisdiction since the petitioner had superannuated much prior to passing of the penalty order nor is the order of penalty sustainable on merits because Rule 14 of ‘the Disciplinary Rules, 2005’ does not empower the disciplinary authority to move beyond the punishments envisaged thereunder. Neither on the explanation thus given by the State for condonation of delay above, nor on the facts leading to this appeal, we are persuaded to grant indulgence in favour of the State. In the result, I.A.No. 8796 of 2017 is rejected. Consequently, the Letters Patent Appeal is dismissed.