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2022 DIGILAW 706 (PAT)

Navin Kumar v. State of Bihar

2022-08-16

SANJEEV PRAKASH SHARMA

body2022
SANJEEV PRAKASH SHARMA, J.:–Heard the parties. 2. The short point involved in the present writ petition is whether in a given case where punishment is passed of censure i.e. written warning, the salary apart from subsistence allowance for the suspension period can be withheld. 3. Brief facts, which require to be noticed are that the petitioner was suspended in contemplation of the departmental enquiry on 05.08.2013. The allegations were levelled against the petitioner dated 15.03.2013 for having misused the allotted amount, defalcation of amount and disobedience of departmental orders and directions. After the enquiry was conducted, the petitioner was found to be not supervising the duty properly, which is minor penalty under C.C.A. Rules. 4. Learned counsel for the petitioner has pointed out that if minor penalty has been imposed, the allegation of defalcation of amount has not been found to be proved against the petitioner nor it has been found to be proved that the petitioner had in any manner disobeyed the government’s directions. The requirement of achieving 75% attendance of students was by the concerned teacher imposing of punishment of censure itself was unjustified. There is no provision under the C.C.A. Rules of withholding salary for the suspended period. The said decision has be taken separately based on the conclusion and punishment awarded in a departmental enquiry. 5. Learned counsel appearing for the State however submits that the said order of withholding of salary apart from subsistence allowance was also passed as a punishment. 6. I have considered the submissions. 7. The Bihar C.C.A. Rules, 2005, lay down the provision relating to the enquiry Punishments are to be awarded to the government servants as per Rule 14 of the rules of 2005 laid down the following penalties and it is appropriate to quote as under:— 14. Minor and Major Penalties.—The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:— Minor Penalties:— (i) censure; (ii) withholding of promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iv) reduction to a lower stage in the time-scale of pay for a period not exceeding three years, without cumulative effect; (v) withholding of increments of pay without cumulative effect. Major Penalties:— (vi) Withholding of increments of pay with cumulative effect. Major Penalties:— (vi) Withholding of increments of pay with cumulative effect. (vii) Save as provided for in clause (iv), reduction to a lower stage in time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay; (viii) reduction to a lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or service from which he or she was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service; (ix) compulsory retirement; (x) removal from service which shall not be a disqualification for future employment under the Government; (xi) dismissal from service which shall ordinarily be a disqualification for future employment under the Government: Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (x) or clause (xi) shall be imposed: Provided further that in any exceptional case and for special reasons to be recorded in writing, any other penalty may be imposed. 8. On perusal of the above, it is apparent that recovery from the pay of the whole or part of the pecuniary loss caused by delinquent to the Government by negligence or breach of orders, can be one of the minor penalty. 9. In the present case, there is no order or findings that any pecuniary loss has been caused to the government by the petitioner. 10. In view thereof, recovery of any amount from the petitioner’s salary apart from subsistence allowance during suspension period could not have been made as a punishment under Rule 14 of the C.C.A. Rules, 2005. 11. That apart from above, the C.C.A. Rules provides under Rule 13, Treatment of service on reinstatement and admissibility of pay and allowances after suspension, which reads as under:— 13. 11. That apart from above, the C.C.A. Rules provides under Rule 13, Treatment of service on reinstatement and admissibility of pay and allowances after suspension, which reads as under:— 13. Treatment of service on reinstatement and admissibility of pay and allowances where dismissal, removal or compulsory retirement is set aside by a court of law.—(1) Where the dismissal, removal or compulsory retirement of a Government Servant is set aside by a court of law and such Government Servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised and the Government Servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) of this Rule subject to the directions if any, of the court. (2) (i) In cases other than those covered by sub-rule (3) of this Rule, the Government Servant shall be paid such proportion of the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, and as the disciplinary authority may determine. The disciplinary authority shall determine the proportion of such payment after giving notice to the Government Servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection, within sixty days from the date on which the notice aforesaid is served on the Government Servant: Provided that the payment under this sub-rule to a Government Servant shall neither be equal to the full pay and allowances nor less than the subsistence allowance and other allowances admissible under Rule 10, as the case may be. (ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgement of the court shall be regularised in accordance with the provisions contained in sub-rule (5) of Rule 12. (ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgement of the court shall be regularised in accordance with the provisions contained in sub-rule (5) of Rule 12. (3) Where the dismissal, removal or compulsory retirement of a Government Servant is set aside by a court on the merit of the case, or where the dismissal, removal or compulsory retirement of a Government Servant is set aside by a court solely on the ground of non-compliance with the requirements of these Rules and no further inquiry is proposed to be held, the period intervening between the date of dismissal, removal or compulsory retirement as the case may be, and the date of reinstatement shall be treated as on duty for all purposes. As a result the Government Servant shall be paid full pay and allowances for the period to which he would have been entitled, had he or she not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be. (4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible. (5) Any payment made under this rule to a Government Servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him or her through any employment during the period between the dismissal, removal or compulsory retirement and the date of reinstatement. Where the pay and allowances admissible under this rule are equal to or less than those earned during such employment elsewhere, nothing shall be paid to the Government Servant. 12. A look at the aforesaid rules, therefore, shows that the State Government is required to pass a separate specific order regarding the pay allowance to be paid to the government servant for the period of suspension and reinstatement. As per Sub-rule 3 of Rule 13 (supra), the disciplinary authority has to give an opinion whether the suspension was justified or not and if it is found to be unjustified, he would be paid full pay allowances to which he would have been entitled had he not been suspended. 13. As per Sub-rule 3 of Rule 13 (supra), the disciplinary authority has to give an opinion whether the suspension was justified or not and if it is found to be unjustified, he would be paid full pay allowances to which he would have been entitled had he not been suspended. 13. However, this Court is inclined to consider the said aspect as to whether the authority would have discretion to withhold amount other than subsistence allowance of the suspension period even if the petitioner is found to have committed a delinquency of a nature for which he is visited with a minor penalty. 14. In the opinion of this court, withholding the salary for the suspension period apart from subsistence allowance can be done in cases, where either the delinquent has committed a misconduct, which results in imposing a major penalty or where there is a loss caused to the government directly or indirectly on account of an action of the concerned delinquent. If it is ultimately found that a delinquent has committed a minor mistake, his suspension cannot be said to be justified. while suspension may not be a punishment, however, he is only paid subsistence allowance, and therefore, has to lead a life on mere subsistence. If one is found to have not committed any major misconduct, his remaining salary ought not be allowed to be withheld as that would amount to an additional punishment. 15. In the present case, therefore, the authority could not have passed the order by way of punishment and it was required to pass a separate order for the said purpose. 16. Keeping in view the fact that the petitioner has been ultimately imposed a minor punishment of the lowest level i.e. censure, it cannot be said that the petitioner was suspended justifiably. The allegation was wholly of having committed supervisory negligence nor there is any loss caused to the state exchequer on account thereof. 17. In view thereof, this court holds that in cases where there is minor penalty imposed, the person who has been suspended would be entitled to salary other than subsistence allowance for the period of suspension and in such circumstances, the authority would not be entitled to withhold the said salary during the suspension period. 18. Accordingly, this writ petition is allowed. 19. 18. Accordingly, this writ petition is allowed. 19. The part of the punishment order dated 25.06.2015 is whereby the salary other than the subsistence allowance has been withheld is held to be illegal and the same is set aside. The order of the appellate authority to the aforesaid extent is also accordingly set aside. 20. The writ petition is allowed. Consequential benefits shall be released within a period of three weeks.