Letters Patent Appeal No.450 OF 2002 W i t h Letters Patent Appeal No.555 OF 2002. - - - - - - - Against the judgment and order dated 25th February 2002 passed in C.W.J.C.No.7524 of 2000. - - - - - RAM SHARAN PRASAD-------------------------Appellant. Versus THE STATE OF BIHAR & ORS---------------Respondents. (In both the appeals) For the Appellans : Mr. Basant Kumar Chaudhary, Sr.Adv. Mr.Anil Kumar Singh, Adv. For the State : Mr.Shashi Bhushan Kumar, SC 16. Mr.Rajeev Kumar and Mr.J.K.Roh J.C.to S.C.16. For the A.G. : Mr.Chakradhari Saran Singh,Adv. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH. THE HON'BLE MR. JUSTICE C.M.PRASAD. Barin Ghosh & C.M.Prasad,JJ Considering the averments made in the application, the delay in filing the appeal (L.P.A.No. 555of 2002) is condoned. While the appellant was in employment, by a charge-sheet dated 30th October 1993, a departmental proceeding was initiated against the appellant. It was alleged that on the basis of the indent given by the appellant, certain electrical instruments, which had no emergent requirement, were purchased. In the disciplinary proceeding, the said charge was concluded by an order - 2 - dated 7th June 1996. The said order was quashed in C.W.J.C.No. 10669 of 1996 by an order dated 22nd April 1988, when the disciplinary authority was directed to consider the charge upon consideration of the reply to be given by the appellant to the charge. The appellant gave a reply. In that he stated that although he gave the indent, but soon thereafter he was transferred. It was stated by him that the purchases pursuant to the indent were not made by him or during the time he was posted at the place from where the indent was given. Without considering the reply so given by the appellant to the charge, again a punishment order was passed. The same was challenged successfully in C.W.J.C.No., 6957 of 1999, when this court by an order dated 3rd February 2000 directed reconsideration of the reply given by the appellant. Thereupon the order dated 12th June 2000, assailed in C.W.J.C.No. 5724 of 2000, was passed. By the said order, punishment of recording censure in the service book, realization of loss caused to the Government to the tune of Rs.15,000/- and refusal to pay regular salary, less subsistence allowance, during the suspension period as was awarded by the 1st and 2nd disciplinary orders were repeated. While doing so, the - 3 - disciplinary authority thought that the charge against the appellant was giving of emergent indent without emergency and purchase of electrical instrument pursuant to such indent from fake firms, causing loss to the Government. The order dated 12th December 2000 mentioned that the appellant has given a reply to the charge and that the contents thereof have been gone in at the government level. What was the contents of the said reply and how the same had been gone in at the government level was not indicated in the order dated 12th June 2000. On 31st January 2000, the appellant retired. Soon before his retirement, by an order dated 4th February 1999, a punishment was imposed upon the appellant whereby a sum of Rs.5, 250/- became recoverable from the appellant. The retrial benefits of the appellant are not being released, was the complaint lodged by the appellant in C.W.J.C.No. 8375 of 2000. In Paragraph-7 of the rejoinder filed in C.W.J.C.No. 8375 of 2000, the appellant stated that he has no objection if the respondents recover the amount of salary paid during the suspension period, excluding the subsistence allowance, and the amounts of Rs.15,000/- and - 4 - Rs.5,250/- and the balance of retirement benefits are paid to him. These two writ petitions were heard tother when a learned single Judge held in the judgment and order under appeal that the contention of the appellant contained in Paragraphy-7 of the rejoinder filed in C.W.J.C.No. 8375 of 2000 amounts to admission and, accordingly, the appellant is estopped from contending that the punishment order dated 12th June 2000 assailed by him in C.W.J.C 5724 of 2000 is unjust. On such premise, no order was passed in C.W.J.C.No. 7524 of 2000 but C.W.J.C.No. 8375 of 2000 was allowed with a direction to sanction the retrial dues of the appellant and to pay the same to the appellant upon deducting the sums of Rs.15, 000/- and Rs.5,215/- The Civil Services (Classification, Control and Appeal) Rules governed the service conditions of the appellant. Rule 49 of the said Rules provides that penalty for recovery from the pay of whole or part of any pecuniary loss caused to the Government by negligence or breach of orders may, for sufficient reason, be imposed upon an employee whose services are governed by the said - 5 - Rules. Rule 55(A) of the said Rules authorizes imposition of such penalty without taking recourse to the elaborate provisions contemplated in Rule 55 of the Rules. Rule 55(A) however, imposes two obligations upon the disciplinary authority : (a) Giving of adequate opportunity of making representation that the employee concerned may desire to make: and, (b) To take such representation into consideration, before imposing such penalty. In the instant case, the contention of the appellant in the three successive writ petitions was that although the appellant was given an opportunity to make a representation, but while imposing the penalty, his representation had not been taken into consideration. The question is whether the averments made in Paragrap-7 of the rejoinder filed in C.W.J.C.No. 8375 of 2000 can be taken to be an admission on behalf of appellant that by imposition of penalty, the representation of the appellant had been considered? Mere statement that the retirement benefit be - 6 - released after giving effect to the decision of the disciplinary authority does not amount to admission by the delinquent that he is accepting consideration by the disciplinary authority of his representation which is a statutory obligation on the part of the disciplinary authority. In the premise, we are of the view that there was no admission in C.W.J.C.No. 8375 of 2000 which could nonsuit the appellant in C.W.J.C.No.5724 of 2000 and, accordingly, the judgment and order under appeal to that extent is erroneous. The fact remains that despite getting two successive opportunities, after having had failed to consider the representation of the appellant while imposing penalty, the disciplinary authority did not consider the same and thereby deliberately refused to discharge its statutory obligation. It has not come on record in any form whatsoever that when purchases were made on the basis of the said indent, such purchases were made by the appellant or that the appellant was still at the station from where the indent was made. In the circumstances the writ petition registered as C.W.J.C.No. 7524 of 2000 is allowed and the - 7 - punishment order dated 12th June 2000 is quashed. Inasmuch as this Court twice remitted the matter but the same resulted in the same fate, it would be inappropriate on our part to once again remit back the matter to the disciplinary authority. We, accordingly, close the disciplinary proceeding by also quashing the charge-sheet. The service conditions of the appellant were also governed by the Bihar Service Code. Rule 97 contained in the said Code specifically directs that when a government servant, who had been suspended, is reinstated, what is required to be done by the authority competent to order reinstatement. In the instant case, the appellant was suspended and thereupon he was reinstated. However, while reinstating the appellant, the authority competent to reinstate did not discharge his obligation as contained in Rule 97 of the said Code. The authority competent to order reinstatement of the appellant was also the disciplinary authority and, accordingly the order required to be passed under Rule 97 of the Code was postponed till passing of the final order in the disciplinary proceeding. Inasmuch as the order of the disciplinary proceeding has been quashed and the said proceeding has been closed, an independent order - 8 - is now required to be passed by the authority competent to order reinstatement in terms of Rule 97 of the Code. A Division Bench of this Court has held that before passing such an order, the delinquent is required to be noticed. Accordingly, we direct the authority concerned to issue notice upon the appellant for exercising power under Rule 97 of the Code and thereupon to exercise such power within a period of three months from the date of giving such notice. Let such notice be issued as early as possible, but not later than one month from the date of service of copy of this order upon the authority concerned. Accordingly, the appeals are disposed of. Patna High Court, Dd. 29th August 2008 N.A.F.R. Jay/ ( Barin Ghosh,J) (C.M.Prasad,J)