IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3200 of 2009 Devanand Jha Versus The State Of Bihar &Ors ----------- 4/ 19/07/2011 Heard learned counsel for the petitioner and the State. The relief sought is for payment of salary for the period of suspension from 23.10.1987 to 11.4.1990. It is fairly acknowledged that for some days during the aforesaid period the petitioner was also in custody in pursuance of a criminal case. The petitioner was subjected to a departmental proceeding and a criminal case for a temporarily misplaced record. The enquiry report dated 6.8.1991 exonerated him and also noticed that one Shri Heerakant Jha, the Executive Engineer, was not only even departmentally proceeded with, but even his suspension came to be revoked while the petitioner was alone subjected to suspension, departmental proceedings and a criminal case also. The enquiry report therefore only held him guilty of carelessness. Punishment was then imposed on 26.8.1993 withholding one increment with cumulative effect. The order does not discuss the observations of the enquiry officer with regard to the said Heerakant Jha. In the 2 meantime, the petitioner has been exonerated of the criminal charge also as the prosecution failed to prove the charges. The disciplinary authority while imposing the punishment was required to pass necessary orders for the manner in which the period of suspension was to be treated. When this was not done, the petitioner represented on 13.8.1994. He again represented on 30.6.2007. Only on 16.10.2008 he was given a show cause why he should not be denied salary for the period of suspension. Having considered his reply, the impugned order dated 20.1.2009 has been passed. It states that he has been punished in the departmental proceeding and acquittal in the criminal case was on benefit of doubt. Therefore he was not entitled to salary for the period of suspension. The petitioner was subjected to discriminatory treatment. Counter affidavit has been filed. There is no material in it to satisfy why the petitioner was not subjected to hostile discriminatory treatment vis-à-vis Heerakant Jha. He was only found guilty of carelessness by the enquiry officer which is not a finding of guilt. The disciplinary authority proceeded to impose the punishment mechanically without proper 3 consideration and application of mind to the enquiry report. The petitioner has also been exonerated in the criminal case as the prosecution failed to prove the charges. There is no finding that the negligence or carelessness was deliberate and culpable in nature. In Life Insurance Corporation of India v. R. Suresh, (2008) 11 SCC 319, it has been held at paragraph-33 as follows: “33. In fact this Court in Union of India v. J. Ahmed10 opined that negligence by itself may not be held to be a misconduct. The Court stated: (SCC p. 293, para 11) “11. … It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence.” The suspension therefore cannot be said to be wholly justified under Rule-11 of the Bihar C.C.A. Rules, 2005. It is therefore held that the petitioner is 4 entitled to the salary for the period of suspension less what has been paid to him as subsistence allowance. He shall not be entitled to salary for the days he was in custody, but only subsistence allowance. Let the legitimate dues of the petitioner be paid within a maximum period of eight weeks from the date of receipt/production of a copy of this order. The impugned order dated 20.1.2009 is set aside to the extent that it directs that no monetary benefits shall be paid to the petitioner for the period of suspension. The writ application stands disposed. KC ( Navin Sinha, J.)