IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15575 of 2004 ====================================================== Sohan Thakur, s/o- Late malik Chand Thakur, retired Section Officer, Bihar School Examination Board, Patna, at present resident of Mohalla- Ashok Nagar, Road No. 8, P.O. + P.S. Kankarbagh Colony, District- Patna. .... .... Petitioner/s Versus 1. Bihar School Examination Board, Patna through its Chairman. 2. Chairman, Bihar School Examination Board, Patna. 3. Secretary, Bihar School Examination Board, Patna 4. Joint Secretary, Establishment-cum-Enquiry Officer, Bihar School Examination Board, Patna. 5. Deputy Secretary, Establishment, Bihar School Examination Board, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ram Kumar Singh Mr. Naresh Chandra Verma For the Respondent/s : Mrs. Namrata Mishra ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 7 09-11-2011 Heard learned counsel for the petitioner and learned counsel for the respondent Bihar State Electricity Board (for short “ the Board”). Order impugned in this application is dated 19.9.2003 as contained in Annexure-9 passed by the Secretary of the Board, whereby on a conclusion of the proceeding, the authorities have inflicted punishment of withholding of 20 % of pension. While doing so, it has also been directed that for the period he remained under suspension, the petitioner would not be entitled to Patna High Court CWJC No.15575 of 2004 (7) dt.09-11-2011 2 any payment save and except the subsistence allowance already paid to him. Learned counsel for the petitioner, referring to the pleadings made in the writ petition, has contended that several employees of the Board were similarly proceeded against whereafter order directing withholding part(s) of pension was/were passed. Subsequently, the Board recalled those orders in respect of several employees like the petitioner but the same was not done in the case of the petitioner. Learned counsel further questions the sustainability of that part of order whereby he was held not entitled for the payment of any amount save and except the subsistence allowance on the ground that before passing the said order, the petitioner was not served with any notice in this regard enabling him to submit his response/reply. Reliance in this regard has been placed on a Division Bench judgment of this Court made in Dinesh Prasad versus State of Bihar [2006 (4) P.L.J.R. 514]. It is argued that in identical matters this Court, relying on the aforesaid case of Dinesh Prasad (supra), has quashed that portion of the order. Petitioner relies in this regard on the orders passed in C.W.J.C. No. 7721/2004 (Krishna Kumar Rajak versus Bihar School Examination Board (Annexure-13 to the rejoinder to the counter affidavit) as also the order dated 30.3.2007 passed in Patna High Court CWJC No.15575 of 2004 (7) dt.09-11-2011 3 C.W.J.C. No. 1742 of 2004 Ganga Prasad versus Bihar State Examination Board and Others (Annexure-16) to the rejoinder affidavit. There is no controversy that Bihar Service Code is applicable to the case in question. Further, there is no dispute that before passing orders in terms of Rule 97(3) thereof, the respondent did not offer an opportunity to the petitioner to submit his cause against the proposed order disentitling him nothing except subsistence allowance for the period he remained under suspension. This Court, in C.W.J.C. No. 1742 of 2004 held as under:- “Learned counsel for the petitioner relies on a Division Bench decision in the case of Dinesh Prasad vrs. The State of Bihar & Ors reported in 2006 (4) PLJR 514. The Division Bench of this Court has held that if the respondent do not issue a notice to an employee or delinquent under Rule 97(3) any order passed contrary to same has to be struck down. The admitted position in the present case is that no notice was given to the petitioner prior to the imposition of withholding of salary for the suspension period. It is also not in dispute that the provisions of Bihar Service Code has applicability to employees of Bihar School Examination Board.” In view of the aforesaid admitted position, this Court has no difficulty in setting aside that part of the order dated 19.9.2003 (Annexure-9) whereby it has been held that petitioner would not be entitled to any payment save and except the subsistence Patna High Court CWJC No.15575 of 2004 (7) dt.09-11-2011 4 allowance paid for the period he remained under suspension. I order accordingly. Petitioner would thus be entitled for full salary for the period he remained under suspension minus the subsistence allowance already paid to and received by him. Learned counsel has strenuously argued with reference to the pleadings on record that the respondents have recalled the first part of the order i.e. withholding of part(s) of pension passed in respect of several other employees who are similarly placed. It has been contended that the petitioner be granted an opportunity to represent in this regard before the concerned respondents who, in turn, be directed to consider and pass appropriate orders in accordance with law. Mrs Namrata Mishra, learned counsel for the Board in view of the aforesaid stand taken by the petitioner, states that the matter be remanded on the said point before the concerned respondent of the Board where the petitioner will file representation and the same shall be considered in accordance with law. Regard being had to the stand taken in this regard by the parties, this Court disposes of the application so far as second issue is concerned by the following order: Let the petitioner file a detail representation in this regard Patna High Court CWJC No.15575 of 2004 (7) dt.09-11-2011 5 highlighting the instances of discrimination along with a copy of the present order before the Secretary of the respondent Board (respondent No. 3) within four weeks whereafter the said respondent shall consider and dispose of the same in accordance with law as quickly as possible preferably within eight weeks of filing of representation. PANKAJ KUMAR/- (Kishore K. Mandal, J)