IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8349 of 2003 SHASHI PRABHA SRIVASTAVA . Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioner:- Mr.Rupak Kumar, Adv. Mr. Nishant Kumar, Adv. For the State:- Mr. Santosh Kumar Mishra, AC to G.P.-7 ------------- 4. 4.2.2010 Heard learned counsel for the petitioner and the State. Despite seven long years, and notwithstanding the order dated 6.1.2010, no counter affidavit has been filed on behalf of the respondents. The husband of the petitioner was suspended on 18.11.1987. Memo of charges issued on 23.12.1989. It culminated in an ex parte departmental proceeding and an order of punishment dated 17.4.1991, revoking suspension with effect from that date stoppage of five increments with cumulative effect, denial of promotion for three years, period of suspension not to be counted as period spent on duty. Learned counsel submits that the husband of the petitioner during his life time on 9.7.1991 represented that no copy of the enquiry report had been given to him and the preliminary enquiry report dated 29.12.1989 on which the departmental proceedings were initiated was also not made available. He submits that failure to supply the preliminary enquiry report on which the departmental proceedings were founded vitiate the proceeding. Additionally, no subsistence 2 allowance was paid during the period of suspension prejudicing the husband of the deceased in participating in the departmental proceedings. The memo of charge and the enclosures do not mention that it is based on any preliminary enquiry report dated 29.12.1989. The memo of charge itself states that twice the husband of the petitioner was asked to furnish his explanation which he failed to do, then only the departmental proceedings were started. One of the charges also was that despite his suspension he refused report joining at the headquarter. The husband of the petitioner was then deceased on 6.8.1995. There can be no quarrel with the broad proposition advanced that failure to pay subsistence allowance may vitiate the departmental proceedings. However, this does not follow automatically. It is for the delinquent to have raised this issue to demonstrate the prejudice being caused and the consequent inability to participate, when only this aspect become relevant to vitiate departmental proceedings. In (2008) 2 SCC 55 (State Government of Madhya Pradesh & Ors. Vs. Shankarlal), it has been held at Paragraph 15 that :- “15. We may, however, notice that in Indra Bhanu Gaur v. Management Committee, M.M. Degree College a Bench of this Court opined that when an opportunity had been granted to the delinquent officer to take the subsistence allowance, it must be shown that because of non-payment thereof, he was 3 not in a position to participate in the proceedings or that any other prejudice in effectively defending the proceedings was caused to him.” In the present case, there is no material on record to demonstrate that the husband of the petitioner at any stage had raised any objections that he was being prejudiced in presenting his defence in absence of payment of subsistence allowance. The impugned order of punishment contains clear recitals that despite several notices by the enquiry officer to the husband of the petitioner to present his defence, he failed to participate in the departmental proceedings. Before submission of the enquiry report, the enquiry officer had again sent a notice at his permanent address which was also not replied too followed by a paper publication in “Nav Bharat Times”, “Jan Shakti, Patna” and “Hindustan” on 10.2.1990, 11.2.1990 and 12.2.1990, despite which no reply was filed by him. The writ petition does not deny these statement of facts in the impugned order. To that extent, this Court finds no merit in this writ application warranting interference with the impugned punishment dated 17.4.1991 as re-communicated to the present petitioner on 7.7.2001. However, this Court does find justification for further orders by the respondents on the limited claim with regard to payment of medical leave for the period 1.12.1986 4 to 17.11.1997 and salary from 17.4.1991 to 4.3.1992. Let the respondent no. 3 examine the claims to the limited extent as noticed above when the petitioner is also granted liberty to represent for payment of subsistence allowance to her deceased husband as alleged. Upon consideration, let respondent no. 3 pass an appropriate, reasoned and speaking order within a maximum period of four months from the date of receipt/production of a copy of this order. The writ application stands disposed. P. Kumar (Navin Sinha, J.)