IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3429 of 2005 Tulshi Narayan Prasad son of late Sri Bindeshwari Prasad, LF 84 Block II, Sector 6 Bahadurpur Hosusing Colony P.S. Kadam Kunwa Patna. Versus 1. THE STATE OF BIHAR through the Chief Secretary Government of Bihar, Patna. 2. The Director General of Police Bihar Patna. 3. The Deputy Inspector General of Police B.M.P Central Zone Patna. 4. The Commandant M.M.P. Arrah. ----------- For the Petitioner :- Mr. Rajendra Prasad Singh, Senior Adv. Ms. Anuradha Singh, Adv. For the State :- Binit Kumar, Adv. A.C to G.A-9 3 31.03.2011 Heard the counsel for the petitioner and the counsel appearing for the State. Petitioner has prayed for quashing the order dated 1.2.2000 passed by the Director General of Police, B.M.P Central Zone, Patna, whereby he has been discharged from his service. The order was passed by way of punishment in a departmental proceeding. Petitioner has also prayed for quashing of order passed by the Director General of Police in the appeal preferred by the petitioner against the final order passed in the departmental proceeding dated 19.7.2004 contained in Memo No. 1058 (Annexure-7) Petitioner was a Lecturer and Head of the Department in Ancient Indian History and Culture of the R.C.S College, Begusarai. On the request of the then Inspector General of Police C.I.D and the D.I.G Computer Police, he helped in establishing the Police Musium. The police department got benefited with the knowledge and experience of the petitioner in establishing the police museum, computerization of the police department and 2 bringing revisions in the police manual. Since the services of the petitioner was being utilized by the police department in establishing the police museum, he was requested to join as Director of Police Museum, in order to dedicate his full supervision to the Department, on assurance of High Officials in Bihar Police Department that he will be posted as a Director of the Police Museum, Patna, petitioner joined the police services, on anticipated creation of the post of Director of Bihar Museum in C.I.D, which was never created. In order to accommodate the petitioner, the then D.I.G. Police C.I.D. adjusted the petitioner on the post of clerk, since it was within the jurisdiction of the Director General of Police. Petitioner was asked to join on a clerical post, though, he was looking after, and supervising the functioning of Bihar Police Museum. The petitioner proceeded on two days leave on 20.06.1994, after, filing his application, in anticipation of sanctioning of his leave. The application filed by the petitioner for leave, was not processed and his absence was considered as unauthorized absence. Petitioner came back from his leave and joined his post. Subsequently he was put under suspension in contemplation of initiation of Departmental proceeding. Through charges were framed, but it was never furnished to the petitioner and Departmental proceeding initiated, without supplying the chargesheet to the petitioner. During the period of suspension, petitioner’s Headquarter was fixed where he was supposed to join but it is alleged that he never joined at the headquarter. On the other hand petitioner’s case is that since he was 3 not paid subsistence allowance, he could stay at the Headquarter and could not participate in the departmental proceeding, though he submitted show cause. The departmental proceeding was conducted ex parte and final order was passed by the disciplinary authority awarding punishment of discharge from service. The impugned order, itself is indicating of this fact that the proceeding was conducted ex parte, but in the order as well as counter affidavit onus for this ex parte proceeding has been shifted on the petitioner, stating that since he remained absent from the headquarter, subsistence allowance could not be paid to him. Appeal preferred by the petitioner has also been dismissed on the same ground. Entire responsibility of this ex parte proceeding has been shifted on the petitioner. It seems that the departmental proceeding itself had been initiated against the petitioner, with an intention to remove him from service. petitioner was put under suspension in contemplation of departmental proceeding, for two days unauthorized absence, overlooking this fact that he had submitted application for leave, which could not be processed for laches on the part of some other persons. One cannot imagine that an employee can be removed from his service, on this ground. that he availed two days unauthorized leave. Even subsistence allowance was not paid to the petitioner due to which he could not participate in the departmental proceeding. Apparently, the order passed by the disciplinary authority in the departmental proceeding and the appellate authority affirming order of punishment, are illegal. The Police department after utilizing the petitioner’s knowledge, 4 experience and excellance, wanted to get rid of him and, two days absence was treated as serious misconduct. Both the orders i.e. order passed by the disciplinary authority awarding the punishment as well as its affirmation by the appellate authority, are illegal. The reason behind ex parte departmental proceeding was the arbitrariness on the part of the respondents as they refused to make payment of subsistence allowance to the petitioner. Petitioner was under suspension and non-payment of subsistence allowance to an employee, during the period of suspension is an act of arbitrariness on the part of Respondent Authorities Admittedly, during the period of suspension the relationship of employee and employer, still subsists, and employer can not deny payment of subsistence allowance to its employees. For the reasons stated above the order dated 1.2.2000 (Annexure-3) passed by Director General of Police, B.M.P Central Zone, Patna and the order contained in memo No. 1058 dated 16.7.2004 passed by the Director General of Police (Annexure-7) are quashed. The occurrence for which departmental proceeding had been initiated against the petitioner was of 1994,. The matter is so old that, Respondents now can not be allowed to re-initiate the departmental proceeding against the petitioner as he has already attained the age of superannuation in the year 2007. The petitioner, accordingly, will be deemed to be reinstated on his post, w.e.f. the date he was put under suspension and subsequently discharged from his service. Petitioner will be entitled for arrears of salary for the entire period of his suspension, for pensionary 5 benefits, since the date of retirement/superannuation and all other monetary consequential benefits, for which he would have been entitled remaining in service. Respondents are directed to pass necessary orders and comply the direction in this regard within 12 weeks from the date of production/communication of this order and make payment of entire dues. With the aforesaid observations and directions this writ petition is allowed. Prakash ( Mridula Mishra, J.)