IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.175 of 2010 1. S.M.INAM AHMAD S/O LATE S.M.NISAR AHMAD R/O NAWAB NAGAR, OPP. VIJAY PETROL PUMP, P.O-NAWADAH, P.S- NAWADAH, DISTT- NAWADAH (BIHAR) Versus 1. BIHAR STATE ELECTRICITY BOARD VIDYUT BAHWAN, BAILEY ROAD, PATNA, THROUGH TIS CHAIRMAN 2. THE CHAIRMAN, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA 3. THE SECRETARY, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA 4. THE JOINT SECRETARY, BIHAR STATE ELECTRICITY BAORD, VIDYUT BHAWAN, BAILEY ROAD, PATNA ----------- 2. 04.02.2010. Heard learned counsel for the petitioner and the counsel for the Bihar State Electricity Board (hereinafter referred to as the “Board”) who has also filed counter affidavit which is taken on record. 2. Petitioner at the relevant time was serving as Assistant Executive Engineer. He is aggrieved by the resolution of the Board bearing No. 736 dated 28.12.2005,Annexure-9, whereunder he has been punished after conclusion of the departmental proceeding initiated against him and his one annual increment has been withheld with non cumulative effect and further he has been debarred from promotion for one year. His salary for the suspension period has also been withheld. Petitioner is also aggrieved by the appellate order passed by the Chairman of the Board and communicated to the petitioner under Memo No. 52 dated 5.6.2009, Annexure-11 dismissing the appeal without indicating any reasons. 3. It appears petitioner was proceeded against for pilferage of 700 litres of transformer oil. He had filed First Information Report reporting theft of the oil during the night between 12/13.8.2003. The case of theft of the oil during the night between 12/13 was not found true by the inspection team led by Sri Bahadur, Chief Engineer as 700 liters of oil could not have been drained out from the transformer during the night. Sri Bahadur was examined as P.W.-4 in the - 2 - proceeding and in the light of his evidence in the proceeding petitioner along with operating staff was held responsible for the pilferage of the transformer oil from the transformer as he was the Incharge of the grid sub-station. The Transformer got damaged due to low level of oil in OLTC and conservator tank for which the operation staff along with the petitioner was also found responsible as he being the Incharge of the grid sub-station never confirmed the level of oil in the transformer. The Enquiry Officer proposed stoppage of two annual increment with cumulative effect and withholding of promotion for two years as also no payment of salary beyond the subsistence allowance for the suspension period which was objected to by the petitioner in his second show-cause reply and in appreciation of the contention of the petitioner the authorities have reduced the punishment proposed and inflicted the punishment noted in paragraph 2. Petitioner challenged the punishment order on the ground that the Enquiry Team has not found him guilty of theft of 700 liters of transformer oil rather he was held responsible for being the Incharge of the grid sub-station and lack of supervision/verification of the level of the transformer oil in the transformer. This Court in appreciation of such fact should set aside the punishment order or in any case reduce the punishment. It is further submitted that the punishment that petitioner will not be paid anything beyond the subsistence allowance already paid to him during suspension period could not have been imposed on him as before imposing such punishment no notice in terms of Sub-Section (3) of Rule 97 of the Bihar Service Code was ever served on him to explain as to what proportion of his salary for the suspension period should be withheld. It is also submitted that aforesaid notice is mandatory as has been interpreted by this Court in the case of Mahavir Prasad Vs. The State of Bihar, reported in 1988 PLJR 82. 4. Counsel for the Board has refuted the aforesaid submission. He submits that the charges alleged against the petitioner was initially enquired into - 3 - by the fact finding enquiry team led by the Engineer-in-Chief who was examined in support of the charge and in appreciation of such fact this Court should not interfere in the matter. He further submits that petitioner having retired on 30.6.2007 the punishment imposed on him does not affect his service prospect. 5. Having heard counsel for the petitioner and the Board and having perused the Enquiry Report as also the punishment order, I am satisfied that withholding of one annual increment and promotion for one year is not too severe but as the Board has not given the petitioner notice in terms of Sub-Section (3) of Rule 97 of the Bihar Service Code to explain the proportion of his salary which is to be withheld the punishment of withholding of salary beyond the subsistence allowance during the suspension period appears to be contrary to the provisions contained in sub-section (3) of Rule 97 of the Bihar Service Code and is, accordingly, quashed with liberty to the Board to issue fresh show-cause notice calling upon the petitioner to indicate the proportion of his salary which should be withheld during the suspension period. The Board will take into account the fact that petitioner was not solely responsible for the pilferage of the transformer oil from Transformer No.2 and pass appropriate orders after considering all the aspects of the matter. As I have interfered with the original punishment order, it goes without saying that after passing of the fresh punishment order in compliance of my order the petitioner will have right to appeal and in such view of the matter the appellate order passed by the Chairman of the Board and communicated to the petitioner under Memo No. 52 dated 5.6.2009, Annexure-11 is also quashed. 6. This writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)