IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8095 of 2004 Md. Sohailuddin, son of Md. Shoab, resident of Mohalla- Samanpura, Raja Bazar, P.S. Shastri Nagar, District-Patna…………………………………………………………………..….Petitioner. Versus 1. Bihar School Examination Board, Patna through its Secretary. 2. Chairman, Bihar School Examination Board, Patna. 3. Secretary, Bihar School Examination Board, Patna. 4. Joint Secretary-cum- Enquiry Officer, Bihar School Examination Board, Patna……………………………………………………….…………………..Respondents. ----------- 6. 19.07.2011. Heard learned counsels for the petitioner and the respondents. The present writ application has been filed for quashing the enquiry report as contained in Annexure-3 and the order dated 19.09.2003 passed by respondent no.3, as contained in Annexure-6 whereby punishment of 20% deduction of pension and non payment of salary for the suspension period have been imposed upon the petitioner. The petitioner was working as Sectional Officer in Bihar School Examination Board, Patna, and at the relevant time was posted in Store Section. The petitioner was put under suspension on 23.08.2001 on the ground that the Committee of Section Officers and Assistants was constituted for making 2 enquiry for the period 1990-2001 and the Committee found that entry of Store was not in accordance with Rule for the period June 1990 to January 2001. On 12.09.2001, charge sheet was given to the petitioner and four charges were framed against the petitioner. (i) First charge was that the Stock Register was not maintained in accordance with law. (ii) Second charge was of no entry in Stock Register of the items which were received after purchase. (iii) Third charge was that no physical verification of the Store was done. Hence, no real Stock Register was known. (iv) Fourth charge was of not understanding the duties and liabilities and being careless about the work. Consequently, the petitioner 3 submitted his show cause denying the charges. On 31.01.2002, suspension of the petitioner was revoked allowing him to retire and the proceeding was converted into a proceeding under Section 43(b) of the Bihar Pension Rules. The contention of the learned counsel for the petitioner is that the documents of charges were never served to the petitioner in spite of being demanded by him. The Enquiring Officer, without going into the materials, submitted his report on 08.08.2003 holding that the charges have been framed. On 14.08.2003, the second show cause was issued to the petitioner which was replied by the petitioner on 27.08.2003 taking the stand that the charges were not specific against the petitioner. On 19.09.2003, the respondent no. 3 issued the order of punishment as contained in Annexure-6 by which 20% pension was deducted permanently and the salary for the suspension period was directed not be paid. It is submitted by the learned counsel 4 for the petitioner that since no enquiry report was supplied to the petitioner he could not give proper reply to the second show cause and application to that effect was also submitted. Thereafter, on 06.12.2003 the enquiry report was supplied but other documents i.e., the enquiry report of 1990-2000 was not supplied to the petitioner and for supplying the same the petitioner submitted the applications on 12.12.2003 and 19.02.2004. It is submitted that non-supply of enquiry report prejudiced the case of the petitioner. It is further submitted that one Sri Tripti Nath Jha was transferred in Store Section of the Board and he had to take charge from Sri Suresh Prasad Sinha, the Assistant who did not hand over the charge. Hence, the Secretary of the Board vide order dated 16.02.2001 directed to get the stock verified for the period 1990 to 2000, under the supervision of one Sri Kanhaiya Ram, Sectional Officer of Advance Accounts Section, with some other enquiry. On the basis of enquiry report prepared by Sri Kanhaiya Ram and other, the then Assistant 5 Section Officer, Sri Suresh Prasad Sinha was dismissed from service and the other employees were put under suspension. Sri Suresh Prasad Sinha challenged his dismissal in C.W.J.C. No. 11398 of 2001. The said writ application was allowed, however, the respondent authorities were directed to proceed under the Bihar Pension Rules. Thereafter, again the order of punishment was passed and the said order of punishment was quashed on 25.04.2005 by this Court in C.W.J.C. No. 14209 of 2004 with liberty to proceed afresh after giving due opportunity. With regard to Krishna Kumar Rajak and others, similar punishment as that of the petitioner, was passed which was challenged in C. W. J. C. No. 7721 of 2004, the Board withdrew the punishment with regard to 20% deduction from pension but so far as the second part of punishment with regard to non-payment of salary for the suspension period was concerned, this Court held that it can not be withheld in exercise of Rule 43(b) of the Bihar Pension Rules. Moreover, it will amount to violation of Rule 97(3) of the Bihar Service Code as no notice was 6 given prior to issuance of such order and accordingly the order of punishment was quashed. Learned counsel for the Board submits that the order needs no interference as in reply to the show cause, the contention of non-supply of the report was not raised. Considering rival contentions of the parties, this Court is of the view that non- supply of enquiry report to the petitioner is an admitted fact. Consequently, non supply of enquiry report has substantially prejudiced the case of the petitioner. The supply of enquiry report is the part of Article 311(2) of the Constitution of India which has been confirmed by the Apex Court in the case of Union of India & Ors. Vs. Mohd. Ramzan Khan reported in 1991(1) S.C.C.588. Paragraph no. 18 of the judgment reads as follows: “18. We make it clear that wherever he has been an Enquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the enquiry holding the delinquent guilty of all or any of the charges with proposal for any 7 particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of the natural justice and make the final order liable to challenge hereafter.” The issue was further considered by the Constitutional Bench in the case of Managing Director, ECIL, Hyderabad and Ors. Vs. B. Karunakar and others reported in 1993(4) S.C.C.727 and this legal proposition has been explained in paragraph no. 25 of the said judgment which is as follows:- “25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of 8 the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilty is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.” Similar view has been taken by the Apex Court in the case of Punjab National Bank Vs. K.K. Verma reported in 2010(13)S.C.C. 494. Hence, the non-supply of enquiry report in the present case, vitiates the order of punishment since it has caused prejudice to the petitioner. So far as withholding the salary for the suspension period is concerned, the contention of the learned counsel for the respondents appears to be misplaced for two reasons. An order of punishment passed against the retired employee under Rule 43(b) of the Bihar Pension Rules will have to be within the confines of the provision and powers conferred on the respondent 9 authorities under Rule 43(b) of the Bihar Pension Rules, whereby only part or full of pension can be withheld in the given circumstances and that too after following the procedure laid down therein. In the present case, two punishment orders came to be passed. One was withholding of 20% of the pension and the second one was withholding of salary for the period of suspension except the subsistence allowance. It is not understood by this Court as to from where the authorities acquired the powers under Section 43(b) of the Bihar Pension Rules to impose the second part of the punishment. The other issue is the non-compliance of Rule 97(3) of the Bihar Service Code with regard to the second part of the punishment of withholding the salary for the suspension period. From the records, it is apparent that no separate notice was given to the petitioner and that, according to this Court, in view of the decision rendered by the Division Bench in the case of Dinesh Prasad Vs. The State of Bihar & Ors. reported in 2006(4) P.L.J.R.514, is not 10 permissible. In the circumstances, this Court has no option but to quash the impugned order of punishment as contained in Annexure-6. Hence, the punishment order, as contained in Annexure-6 is quashed. However, the respondent-Bihar School Examination Board is permitted to proceed with the enquiry from the stage of supply of the enquiry report, within a period of four weeks from the date of receipt/production of a copy of this order and to conclude the proceeding within a period of three months. However, the petitioner is entitled to the payment of salary, for the period he was under suspension, after deducting the subsistence allowance which has been paid to him for the said period and this payment shall be made to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ application is allowed to the extent indicated above. U. K. ( Dinesh Kumar Singh, J)