IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2836 of 2005 SURESH PANDEY, SON OF LATE SHANTU PANDEY, RESIDENT OF MOHALLA – JYOTI PURAM COLONY, KHAJPURA, P.S.-SHASTRINAGAR, DISTRICT-PATNA ………………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE COMMISSIONER AND SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE ADDITIONAL SECRETARY, PHED, GOVERNMENT OF BIHAR, PATNA 4. UNDER SECRETARY TO THE GOVERNMENT, PHED, BIHAR, PATNA 5. THE JOINT SECRETARY (MANAGEMENT CELL), PUBLIC HEALTH ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA ……………….. RESPONDENTS WITH CWJC NO. 3611 OF 2005 SURESH PANDEY, SON OF LATE SHANTU PANDEY, RESIDENT OF MOHALLA – JYOTI PURAM COLONY, KHAJPURA, P.S.-SHASTRINAGAR, DISTRICT-PATNA ………………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE COMMISSIONER AND SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE ADDITIONAL SECRETARY, PHED, GOVERNMENT OF BIHAR, PATNA 4. UNDER SECRETARY TO THE GOVERNMENT, PHED, BIHAR, PATNA 5. THE JOINT SECRETARY (MANAGEMENT CELL), PUBLIC HEALTH ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA …………………… RESPONDENT ****** FOR THE PETITIONER: MR. ARVIND KUMAR TIWARY, AD. FOR THE STATE: MR. SANJAY PRAKASH VERMA, AC TO GA-3 ----------- 07. 04.05.2011 Heard learned counsel for the petitioner and the State. 2 These two Writ Applications have been filed by the same petitioner and the relief prayed in both the Writ Applications are interconnected, as such applications are heard analogous and being finally decided by a common Order. In the first Writ Application, initially, prayer of the petitioner was for quashing of Government Resolution, contained in Memo No. 3039, dated 12.11.2001, whereby the Departmental Proceeding initiated against the petitioner under rule 55 of the Civil Services (Classification, Control and Appeal) Rules, has been converted in a proceeding under Rule 43(b) of the Pension Rules. During the pendency of the Writ Application, the Departmental Proceeding was concluded and punishment of deduction of 5 % of pension for two years from the pension of the petitioner was awarded. I. A. No. 2629 of 2006 was filed by the petitioner for amending the prayer and the amended prayer is for quashing of the Government Resolution, dated 05.03.2005, awarding punishment of deduction of 5 % pension for two years from the pension of the petitioner. In the second Writ Application, i.e., C.W.J.C. 3 No. 3611 of 2005, prayer of the petitioner is for giving him regular promotion to the post of Chief Engineer with effect from 05.03.1994, i.e., the date juniors to him have been given promotion to the post and promotion to the post of Engineer-in-Chief with effect from 01.01.2002. Petitioner has been debarred from these two promotions on account of pendency of the Departmental Proceeding against him, which lingered till the date of his superannuation and finally concluded by awarding punishment vide Resolution dated 05.03.2005. Counter Affidavits and Supplementary Counter Affidavits have been filed in both the Writ Applications on behalf of the State. Petitioner had earlier moved before this Court by filing C.W.J.C. No. 7974 of 2000 with a prayer to quash an order, whereby punishment of censor and stoppage of one annual increment with cumulative effect has been imposed on the petitioner in a Departmental Proceeding, initiated under Rule 55 of the Civil Service (Classification, Control and Appeal) Rules, 1930. Petitioner grievance was that major punishment covered under Rule 49 of the Rules have been imposed on him 4 without taking recourse to regular enquiry, as contemplated under Rule 55 of the Rules. The Writ Application was allowed. The impugned order was set aside and the matter was remitted back to the authority to proceed in the matter afresh in accordance with law. On remand of the matter, the Respondent Authorities again issued a resolution, dated 12.11.2001 for starting Departmental Proceeding against the petitioner. After sometime of issuance of this Order on 28.02.2002, the petitioner superannuated after attaining the age of retirement. The Enquiry Officer issued letter, dated 20.05.2002 to the petitioner for appearing before him along with necessary documents and evidence for defending him in enquiry. Petitioner’s case is that the enquiry report was not furnished to him. He, however, managed to get the copy of enquiry report. The Disciplinary Authority did not issue any notice, showing reason for disagreement with the enquiry report with the proposed punishment simply the petitioner was asked to submit his show-cause. The show-cause submitted by the petitioner was also not considered 5 and the punishment of withholding of 5% of pension for two years from the pension of the petitioner was imposed. In paragraph no. 17 of the Writ Application, petitioner has stated about non- furnishing of the enquiry report. In the Interlocutory Application, the petitioner has stated that while disagreeing with the enquiry report, no reason was assigned for such disagreement and no notice was issued, showing reason for such disagreement with the proposed punishment. In the Counter Affidavit, the statement made by the petitioner has not been converted. However, the Counsel, appearing for the State made a submission that withholding of any percentage of the pension or part of pension is minor punishment and for awarding any minor punishment, it is not required to issue second show-cause notice to the delinquent. No reason has been assigned while disagreeing with enquiry report. The reason for such disagreement was not supplied to the petitioner. It is well settled that in the case of disagreement with the enquiry report, the delinquent must be supplied the reason for such disagreement, so that he may get an opportunity to defend himself. In case, it is 6 not done, the law is that the punishment has been awarded in violation of the Rules of Natural Justice. In the case of withholding of 5 percent of pension may be minor punishment, but once the proceeding was initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, till its conclusion, the proceeding of the rule under which the proceeding has been initiated, must be followed. So far the conviction of the proceeding under Rule 43(b) is concerned, the objection raised by the petitioner has not tenable. The proceeding was initiated against him, while he was in service, as such the question of limitation will also not arise. It is also relevant at this juncture that on earlier occasion, when the petitioner had come before this Court for quashing of impugned order of punishment, the order was quashed by the High Court and the matter was remanded with a direction to reconsider the case of the petitioner and conclude the Departmental Proceeding in accordance with law. Since it was not done and again the Respondent committed same error, which was there in the earlier order, awarding punishment, I find that the punishment awarded to the petitioner regarding 7 withholding of 5 % of his pension for two years is not sustainable. Accordingly, the impugned Government Resolution, dated 05.03.2005, contained in Memo No. 708 (Annexure-12), awarding punishment of deductions of 5 % of pension for two years from the pension of the petitioner is quashed. This Writ Application is allowed. In the next Writ Application, i.e., C.W.J.C. No. 3611 of 2005, from the Counter Affidavit, filed on behalf of State, it transpires that the case of the petitioner’s promotion to the post of Chief Engineer was recommended before the Departmental Promotion Committee along with others on two occasions, but the Departmental Promotion Committee, did not recommend the case of promotion of the petitioner on account of pendency of the Departmental Proceeding. Since the Departmental Proceeding continued till the date petitioner superannuated, as such petitioner’s case of promotion remained pending due to allegation against him. Now, after quashing of the impugned order of punishment, awarded to the petitioner in the Departmental Proceeding, the petitioner can 8 claim for his promotion to the post of Chief Engineer with effect from 05.03.1994, i.e., the date on which juniors to him were given promotion and promotion to the post of Engineer-in-Chief with effect from 01.01.2002. This Writ Application is also allowed, directing the Respondents to consider petitioner’s case for regular promotion to the post of Chief Engineer with effect from 05.03.1994 and promotion to the post of Engineer-in-Chief with effect from 01.01.2002 in view of the fact that juniors to the petitioner have been granted promotion to such posts with effect from these dates. The Respondents will consider the case of the petitioner for promotion in the immediate next meeting of the Departmental Promotion Committee, considering the fact that petitioner has already superannuated in the year 2002. Petitioner will also be allowed all consequential benefits on account of such promotion. With the aforesaid observations, these two Writ Applications are allowed. SKM (Mridula Mishra, J.)