Ram Rajya Pandey vs The State of Bihar and Others

Mihir Kr. Jha, J.

I.A. No. 7358 of 2010

Having heard learned Counsel for the Petitioner as also counsel for the State, this Court would allow the prayer made in the aforesaid interlocutory application seeking substitution of original writ Petitioner who is said to have died on 22.5.2003 leaving behind legal heirs and representatives as mentioned in paragraph No. 1.

I.A. No. 7358 of 2010 is disposed of.

Let necessary correction be made by the office.

CWJC No. 15418 of 2001

Heard Mr. Rajiv Ranjan Kumar Pandey, learned Counsel for the Petitioner and Mr. Udai Shankar Singh, Assistant Counsel to G.A. 3 for the State.

In view of the order of this Court dated 2.9.2002, this writ application now remains confined to only one relief i.e. the validity and correctness of the impugned order dated 25.1.2001 contained in Annexure-6 to this writ application which reads as follows:

Counsel for the Petitioner has assailed the aforesaid order from various angles but the one which goes to the root of the matter is that once a regular departmental proceeding was drawn against the Petitioner by framing memo of charge dated 12.7.1997 and supplementary memo of charge dated 10th February, 1999, no order of punishment could have been passed against him without supplying the copy of the enquiry report and/or giving a show-cause notice more so when the original Petitioner was given almost a clean chit by the Enquiry Officer in the enquiry report dated 6.12.2000. In this context, learned Counsel has placed reliance on the judgment of this Court in the case of Umeshwar Singh and Another and Harendra Singh and Another Vs. State of Bihar and Another as also in the case of Manorma Kumari Vs. The State of Bihar and Others, .

Learned Counsel for the State on the other would submit that true it is, the Petitioner was placed under suspension by order dated 12.7.1997 but then the earlier revocation of such suspension of the Petitioner without holding any enquiry and even without getting the prior approval of the Collector of the District was wholly unjustified and that is why the authorities had to reconsider the order dated 18.4.1998 revoking the earlier suspension of the Petitioner while placing him again under suspension by an order dated 10.2.1999. It has also been sought to be explained by him that thereafter an enquiry was also held in which the Petitioner was given full opportunity to defend himself in respect of same charges as would appear from the enquiry report itself wherein despite proving of some of the serious charges against the original Petitioner the Enquiry Officer going beyond his jurisdiction had made his recommendation for revocation of his suspension order. He has accordingly also tried to justify the impugned order of punishment on the ground that since the Petitioner was going to superannuate on 31.1.2001, the Collector of the District in capacity of Chairman, District Education Establishment Committee had taken a decision to impose punishment of withholding salary for the period of suspension which was in keeping with the provisions of Bihar Civil Services (Classification, Control and Appeal) Rules as also 1994.

In the opinion of this Court, the impugned order of punishment cannot be sustained on the ground of procedural infirmities inasmuch as even if according to Collector of the District the enquiry report had the element of proving some of the charges against the original Petitioner, the same was required to be supplied him alongwith a tentative show-cause notice disclosing application of mind by the Disciplinary Authority as with regard to purport and scope of such enquiry report in relation to findings in respect of those charges. Admittedly that was (sic-not?) done which by itself would vitiate the order of punishment.

The order of punishment even otherwise is not sustainable inasmuch as Rule 8 of 1994 Rules itself prescribed awarding of only following punishment in case of teachers of Primary School.

Thus once this Court would find that stoppage of salary for the period of suspension is not a separate punishment prescribed under Rule 8, it would be difficult for to approve the impugned order of punishment even by way of consequence of the Petitioner being placed under suspension. If the impugned order, therefore could not have been passed in terms of Rule 8 and the Authority had also never indicated that the charges framed against the Petitioner were proved, much less had given an opportunity of hearing'' to the Petitioner after submission of enquiry report, there would be no escape from irresistible conclusion that the impugned order as contained in Annexure-6 was some sort of slipshod effort on part of the Collector of the District merely for depriving the original writ Petitioner from getting his dues on account of his superannuation w.e.f. 1.2.2001.

Normally, having recorded that the impugned order of punishment suffers from procedural illegality, this Court could have remitted the matter back from the stage of submission of enquiry report but now when-the original Petitioner is already dead and the charges against him also related to absence from duty, which can be said to be a gross misconduct or causing loss to the financial exchequer in terms of Rule 43 of Bihar Pension Rules, this Court would not give any further opportunity to the State for continuing with the proceedings. To that extent, learned Counsel for the Petitioner in fact is correct in placing reliance on the judgment of this Court in cases of Kailash Singh''s (supra) and Manorma Kumari (Surpa) inasmuch as it is a well settled proposition of law that in a departmental proceeding a delinquent merely by framing of charge or getting enquiry conducted through Enquiry Officer cannot be punished unless after conclusion of such enquiry he is given an opportunity to show that the findings recorded in his favour or against him should/should not be taken into consideration for inflicting punishment. As noted above, in this case no enquiry was conducted against the Petitioner in the month of December 2000 before submission of enquiry report and the order of punishment came to be passed on 25.1.2001 only because the original Petitioner''s retirement was to come into force w.e.f. 31.1.2001. If in this process, the Respondent themselves had delayed in conducting the departmental proceeding and/or not giving sufficient opportunity to the original Petitioner to defend himself after submission of enquiry report, an order of punishment which is also beyond the scope of Rule 8 of 1994 Rules, cannot be sustained.

That being so, this Court would allow this writ application and quash the impugned order dated 25.1.2001 as contained in Annexure-6. The Respondents are also directed to make payment of full salary and emoluments of original Petitioner for the entire period of his suspension to the present Petitioners, the heirs of the original writ Petitioner. It is however made clear that they would not be now entitled for any other benefit on the basis of deemed continuation of original Petitioner in service except arrears of salary and emoluments and arrears of retirement benefit.

With the aforementioned observation and direction, this writ application is disposed of.