IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9789 of 2007 Dr.Chandrika Pd.Vidyarthi, son of late Shri Jhauri Prasad, resident of village Rasalpur, P.S. Dhanarua, District Patna … Petitioner Versus 1. The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna 2. The Health Secretary, Govt. of Bihar, Patna 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna 4. The Dy. Secretary, Health and Family Welfare, Govt. of Bihar, Patna 5. Civil Surgeon, Gaya … Respondents ----------- For the Petitioner : Mr. Vivek Prasad, Advocate For the State : S.C.-III ------------ PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (15.10.2011) Mihir Kumar Jha, J. Heard Mr. Vivek Prasad, learned counsel for the petitioner and the learned counsel for the State. Assailing the order of punishment dated 6.5.2006 Mr. Prasad would contend that the order of punishment of withholding salary beyond subsistence allowance for the period of suspension, in addition to warning for the alleged misconduct is wholly impermissible in the eye of law, inasmuch as suspension as punishment is no longer in existence in the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. He would further elaborate his submission by taking a plea that since the petitioner was given no separate show cause notice as with regard to withholding his salary for the period of suspension in terms of Rule 97(3) of the Bihar Service Code, the aforesaid order of punishment even otherwise cannot be sustained. In this context he has placed reliance on a Division Bench judgment of this Court in the case of Dinesh Prasad vs. State of Bihar & ors., reported in 2006(4) PLJR 514, which has also been followed by a learned 2 Single Judge in the case of Chakradhar Das vs. the State of Bihar & ors., reported in 2007(3) PLJR 835. Learned counsel for the State, on the other hand, would submit that after the petitioner was exonerated in the enquiry report of the Enquiry Officer the Government had differed with the findings of the enquiry report and had issued a fresh show cause notice to the petitioner vide department‟s letter no. 1154(9) dated 24.8.2005 and when the petitioner had submitted his reply on 5.12.2005 the order of punishment by way of differing from the findings of the enquiry report and after considering the defence taken by the petitioner was passed wherein he was not only warned to remain careful in future but also was subjected to punishment of withholding of salary beyond the amount of subsistence allowance already paid to him. In the considered opinion of this Court while there can be no difficulty in upholding the order of punishment so far it relates to recording warning to the petitioner, inasmuch as the appointing authority has the power to differ with the enquiry report and inflict punishment after giving a show cause notice by following the procedure as laid down in the case of Punjab National Bank & ors. vs. Kunj Behari Misra, reported in (1998) 7 SCC 84, but then in the present case the order of punishment is in two parts, namely, warning to the petitioner for remaining careful in future and also withholding of payment of salary for the period of suspension beyond subsistence allowance already paid to him on the principle of „no work no pay‟. The second part of punishment of non-payment of salary for the period of suspension beyond subsistence allowance could have been justified only if there was punishment of suspension provided in the Rules. It has to be kept in mind that under Rule 49 of Civil Services (Classification, Control and Appeal) Rules, 1930 reading as follows: “49. The following penalties may, for food and sufficient reasons and as 3 hereinafter provided, be imposed upon members of the services comprised in any of the clauses (1) to (5) specified in rule 14, namely- (i) Censure, (ii) Withholding of increments or promotion, including stoppage at an efficiency bar. (iii) Reduction to a lower post of time scale or to a lower stage at time scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment.” suspension was one of the punishment and therefore, a person subjected to disciplinary proceeding in terms of Rule 49 could have been inflicted punishment of withholding of salary for the period of suspension. In fact that could have also fulfilled the requirement of Rule 97(1) and (2) of the Bihar Service Code which reads as follows: “97(1) When a Government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order- (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (b) Whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be.” From a simultaneous reading of aforesaid provisions of Rule 55 of 1930 Rules with Rule 97(1)(2) of the Bihar Service Code it would be quite clear that if a 4 person is held to be guilty in a departmental proceeding and is punished, his suspension is not unjustified, inasmuch as he was never fully exonerated and therefore, he could have been also subjected to punishment of suspension leading to withholding of payment of salary for the period of suspension. The concept of a show cause notice under Rule 97(3) of Bihar Service Code has been consistently followed by this Court only by way of an additional opportunity to the delinquent Government servant who was punished in the departmental proceeding also by way of withholding of payment of salary. This Court, however, would not like now to go into that question as with regard to scope of issuing a fresh show cause notice in terms of Rule 97(3) of the Bihar Service Code, inasmuch as now that has become almost compulsory under Rule 14 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 reading as follows: “14. Minor and Major Penalties.- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:- Minor Penalties:- (i) Censure; (ii) withholding of promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iv) reduction to a lower stage in the time scale of pay for a period not exceeding three years, without cumulative effect; (v) withholding of increments of pay without cumulative effect. Major Penalties:- (vi) Withholding of increments of pay with cumulative effect. (vii) Save as provided for in clause (iv), reduction to a lower stage in time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and 5 whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay; (viii) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he or she was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service; (ix) compulsory retirement; (x) removal from service which shall not be a disqualification for future employment under the Government; (xi) dismissal from service which shall ordinarily be a disqualification for future employment under the Government; Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (x) or clause (xi) shall be imposed; Provided further that in any exceptional case and for special reasons to be recorded in writing, any other penalty may be imposed.” Thus in Discipline and Appeal Rules 2005 the punishment of suspension has been altogether deleted from the category of punishment enumerated therein. Thus, once there is no provision for punishment by way of suspension a Government servant can definitely rely on the provisions of Rule 97 of Bihar Service Code wherein its Rule 97(3) reads as follows: “97(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe; provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible.” 6 Thus in this background the requirement of show cause notice in terms of Rule P7(3) of Bihar Service Code and its interpreter by this Court in the case of Mahabir Prasad vs. State of Bihar, reported in 1988 PLJR 82, and in the case of Pramod Kumar vs. The Champaran Kshetriya Gramin Bank & ors., reported in 2003(4) PLJR 68, which have been actually followed by the Division Bench in the case of Dinesh Prasad (supra), there could be no escape from the irresistible conclusion that after promulgation and enforcement of Disciplinary and Control Appeal Rules 2005, which came into force on 13.7.2005, a Government servant cannot be denied payment of salary for the period of suspension unless a separate show cause notice is issued to him in terms of Rule 97(3) of the Bihar Service Code. This Court in fact is amazed with the approach of the respondents in denying payment of salary of the petitioner on the plea of „no work no pay‟ during the period of suspension. A question would arise that why did the petitioner not work? The only answer would be that the petitioner did not work on his post because he was placed under suspension. Therefore, can in such cases the Government penalize someone by withholding payment of salary for the period of suspension beyond subsistence allowance by adopting the principle of „no work no pay‟? Such approach of the respondents, as has been taken in the case of the petitioner, infact cannot be countenanced in law. From the tenor of the impugned order and also facts stated in the counter affidavit it is clear that the petitioner was only given a show cause notice by way of difference of opinion from the findings of the Enquiry Officer on 24.8.2005 and thereafter when the petitioner had filed his reply on 5.12.2005, the impugned order came to be passed. It is thus clear that the petitioner was not given the notice and/or opportunity of hearing in terms of Rule 97(3) before subjecting him to also a punishment of withholding of his salary beyond subsistence allowance for the period of suspension. In absence of notice the ratio laid down by the Division Bench in the 7 case of Dinesh Prasad (supra) infact will be fully applicable and as such, this Court will have no hesitation in quashing that part of the impugned order of punishment where the petitioner has also been denied payment of salary for the period of suspension beyond subsistence allowance. The other part of the impugned order as with regard to recording warning to remain careful in future, however, would remain in tact. Normally having quashed the order of punishment on account of infringement of the principles of natural justice this Court could have remitted the matter back from giving a fresh show cause notice to the petitioner in terms of Rule 97(3) of the Bihar Service Code but taking into account the nature of alleged misconduct of his so called unauthorized absence for a period of three days and that the petitioner has also superannuated from service this Court would now not give any liberty to the respondents to take any further action in this matter. In other words as a consequence of quashing of part of punishment order the petitioner will be entitled for payment of whole salary excluding amount of subsistence allowance paid to him for the period 12.2.2005 to 5.5.2006 in which he was continuing under suspension. Such payment of amount of balance salary of the petitioner beyond subsistence allowance must be made to him in a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observations and directions, this application is allowed to the extent indicated above. (Mihir Kumar Jha,J.) Patna High Court Dated the 15th October 2011 A.F.R./Surendra/