IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7489 of 2002 Dr. Md. Iqbal Ahmad, Son of late Abdul Jamal Md. Musa, Resident of Mahalper, P.S. Biharsharif, District Nalanda. ------- Petitioner Versus 1. The State of Bihar through Secretary, Department of Health Education and Family Welfare, Government of Bihar, Patna. 2. The Deputy Secretary, Department of Health Education and Family Welfare, Government of Bihar, Patna. 3. The Director of Health Education and Family Welfare, Government of Bihar, Patna. 4. The Accountant General of Bihar, Birchand Patel Marg, Patna. -------- Respondents ----------- For the Petitioner : Mr. Khurshid Alam, Advocate For the State : A.A.G.-2 ---------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (17.08.2010) Mihir Kumar Jha, J. Heard Mr. Khurshid Alam, learned counsel for the petitioner and counsel for the State. 2. The prayer of the petitioner in this writ application reads as follows:- “1(a) For issuance of a writ in the nature of certiorari for quashing the letter no. 3/I-5-1-10/2001 dated 11.1.2002 issued under the signature of Joint Secretary Health Government of Bihar, without any show-cause and notice by which the suspension period of the petitioner was treated as a break in service, which is arbitrary, illegal and against rule of natural justice. (b) For issuance of a writ in the nature of mandamus commanding the respondent to pay the salary for 2 the period of 26.7.96 to 23.9.97 treating period as in service and also direct the respondent to calculate the period for post retrial benefits and also for the purpose of pension.” 3. Assailing the impugned order dated 11.1.2002, which is in the form of communication by the Joint Secretary to the Government in the Health Department to the Accountant General, counsel for the petitioner would submit that the said order firstly is in violation of principle of natural justice and secondly beyond scope of the order of punishment passed against the petitioner on 29.1.2000. He would further submit that as a matter of fact the effect of the impugned order would amount to a double for same misconduct and thus violative of doctrine of double jeopardy punishment enshrined under Article 20(2) of the Constitution of India. Mr. Alam has further assailed the impugned order on the ground that the break in service for the period of suspension was wholly impermissible and also that the petitioner in terms of the order of punishment would be entitled for payment of salary for the period of suspension. In this context, he has placed reliance on the 3 judgment of the Apex Court in the case of Bibhuti Bhusan Chaudhary Vs. Union of India & Anr. reported in 1997(11)SCC 373 and the Division Bench judgment of this court in the case of Dinesh Prasad Vs. State of Bihar & Ors. reported in 2006(4)PLJR 514. 4. Counsel for the State, on the other hand, with the help of the counter affidavit filed in this case, would submit that the impugned communication to the office of the Accountant General is only by a follow-up measure of the order of punishment dated 29.1.2000 and in fact seeks to only clarify the admissibility of amount payable to the petitioner in the period of his suspension, specially when the petitioner in the departmental proceeding was held guilty and therefore, subjected to punishment by separate order dated 29.1.2000. He would further submit that Rule 97(2) of the Bihar Service Code makes a Government servant entitled for payment of his full salary only if he is completely exonerated from the charges for which he was placed under suspension pending departmental proceeding. 5. In the opinion of this Court, the first submission of Mr. Alam as with regard 4 to the impugned order amounting to double punishment and thus hit by the doctrine of double jeopardy is only to be noted for its being rejected. The petitioner was admittedly placed under suspension for a very serious charge as would be evidenced from the order of suspension dated 26.7.1996. For this very serious charge of giving a false medical report and injury report in capacity of Medical Officer, he was subjected to a departmental proceeding after being placed under suspension by the Government notification dated 26.7.1996 and the said departmental proceeding having over- stretched, when this Court had passed an order of 6.12.1996 without interfering in the impugned order of suspension by directing the parties to the following effect:- “------- Having heard the parties, according to this Court, in the interest of justice, the following orders will suffice:- (i) The Respondents are directed to conclude the departmental proceeding and pass final order on the same within a period of six months from the date of receipt/production of a copy of this order. The petitioner will cooperate in the said departmental proceeding. 5 It is made clear that if the petitioner does not cooperate in the departmental proceeding then the authorities will proceed in the matter ex parte. In any case, final order in the departmental proceeding will be passed within the aforesaid stipulated period of six months. (ii) It is made clear that if the final order in the departmental proceeding is not passed within the aforesaid period of six months, in that case, the order of suspension dated 26th July, 1996 will stand revoked on completion of such six months’ period. (iii) The Respondents are also directed to pay the petitioner the subsistence allowance, including the arrears, if any, if the petitioner continues to remain present in the Headquarter fixed during the period of suspension. At this stage, it is stated that the Headquarter which was fixed at Patna, where the petitioner reported himself for joining, but the concerned authority has refused to accept the joining of the petitioner. If such is the position, the Respondents are directed to accept the joining of the petitioner. The petitioner will again report within fifteen days from today at Patna Headquarter, on which the Respondents will pass order within seven days of such rejoining. The writ petition stands disposed of with the aforesaid observations and 6 directions.” would itself make clear that the order of suspension of the petitioner was never interfered and as such, the petitioner did not become entitled for payment of full salary for the period of suspension at least in terms of the aforesaid order of this Court dated 6.12.1996. 6. As noted above, the said order of suspension of the petitioner was revoked by a notification dated 24.9.1997 with immediate effect i.e. with effect from 24.9.1997 with a specific condition that the decision with regard to the period of suspension on the charges on which he was suspended would be taken separately. In fact the said order dated 27.9.1997 was sought to be modified on 1.4.1999 by which the suspension order was sought to be revoked with effect from 15.6.1997 in place of 24.9.1997 and the petitioner’s salary was also directed to be paid from 15.6.1997 to 24.9.1997. 7. In that view of the matter, when the Government had passed the order of punishment in the notification dated 29.1.2000 inflicting two specific punishments namely demotion from his post as also no 7 future posting at a place involving public contact, it cannot be said that the impugned communication as with regard to treating the period of suspension to be either break in service or denying him payment of salary for the period of suspension dated 26.7.1996 to 14.6.1997 could amount to further punishment so as to attract the principle of doctrine of double jeopardy. 8. As noted above, it is the part of the decision making process, wherein, a person after being reinstated in service after revocation of suspension would be entitled for consideration as to how the period of suspension has to be treated. Rule 97 of the Bihar Service Code in fact is a complete answer to the submission of the learned counsel for the petitioner that the impugned order is not in the form of punishment rather only a consequential order flowing from the order of revocation of suspension. Rule 97 of the Bihar Service Code reads as follows:- “97. (1) When a Governmental 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 8 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] (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 (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. [(5) In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose; Provided that if the Government servant to desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the 9 Government servant.]” 9. It would thus be clear that the impugned order at least cannot be assailed on the ground of its being violative of Article 20(2) of the Constitution of India as the same is not a separate punishment rather a consequential order. 10. The second limb of submission of the learned counsel for the petitioner is that the period of suspension of the petitioner could not have been treated to be break in service in fact also is partly correct and partly incorrect, inasmuch as, it is the province of the disciplinary authority to pass a specific order as with regard to treating the period of suspension upon revocation of the suspension order. Rule 97 (5) of the Bihar Service Code, as quoted above, provides that upon passing of an order where the Government servant has been fully exonerated from the order of suspension was wholly unjustified, the period of suspension or absence from duty will have to be treated as period spent on duty for all purpose but, if the charges have been proved, the rule makes it clear that there has to be specific order for treating the period of absence from 10 duty as with regard to its having been spent on duty. Thus, in terms of Rule 97(5), when there is no mention about the period of absence to be treated as spent on duty, the logical outcome could be that there was a break in service but then as such break in service would definitely prejudice the petitioner in computation of qualifying service for payment of pension under Bihar Pension Rules as he had to retire after few days such break in service for the period of suspension in terms of Rule 101 of the Bihar Pension Rules, capable of taking away the entire pensionary benefit, any decision to this effect could have been taken only after giving an opportunity of personal hearing to the petitioner. Admittedly, after the petitioner was inflicted with the order of punishment on 29.1.2000 and had retired on 31.1.2000, no fresh notice was given to him as with regard to the aforementioned adverse order either causing break in service for the period of suspension or withholding of payment of salary for the period of suspension. 11. The reliance placed by the petitioner on the judgment of the Apex Court 11 in the case of Bibhuti Bhushan Chaudhary (supra) however is not squarely applicable to the fact of this case, inasmuch as, the said order was passed by the Apex Court under Article 142 of the Constitution of India as would appear from paragraph no.3 thereof, which reads as follows:- “3. The learned counsel for the petitioner has confined his submissions to the computation of the pension payable to the petitioner and has urged that although the subsistence allowance has been paid to the petitioner for the period of suspension the said period has been excluded from the qualifying service of the petitioner for the purpose of computing the pension payable to him. Having regard to the fact that the petitioner has been paid the subsistence allowance for the period of suspension, the said period of suspension could not be excluded from the qualifying service for the purpose of computing pension of the petitioner and the pension payable to the petitioner should be calculated by taking into account the said period of suspension as part of his qualifying service. It is, therefore, directed that the petitioner is entitled to count the period of suspension as part of his qualifying service for the purpose of computing the pension payable to 12 him. The amount of pension payable to the petitioner should be reassessed on that basis and the amount of arrears found payable to the petitioner as a result of such reassessment shall be paid to the petitioner within a period of three months. The writ petition is disposed of accordingly. No orders as to costs.” 12. From the said judgment, it also does not transpire that there was similar provision as given in Rule 97(5) of the Bihar Service Code where there is presumption of the period spent on duty only in case of being fully exonerated from the charge and thus the aforesaid judgment of Apex Court in the Bibhuti Bhushan Chaudhary (supra) even otherwise can not be made applicable to the facts of this case. 13. As noted above, the petitioner was never exonerated in the departmental proceeding and, infact, was subjected to two punishments and therefore, the observation made by the Apex Court in the case of Bibhuti Bhushan Chaudhary (supra) can not govern the result of this case. 14. There will be, however, one more aspect of the matter which needs to be gone into at this stage itself, inasmuch as, the 13 petitioner had almost completed his full service when he came to face the charges, rather serious one, in the year 1996 of giving a false injury report without even examining the deceased. If for such charge, the Government ultimately could punish the petitioner by way of demotion and also not assigning him any responsible post in the remaining tenure of his service, he could not have been also subjected to forfeiture of his entire pensionary benefit, the impact which would be caused on account of break in service for the period of suspension. Therefore, the concept of natural justice has been read into while interpreting the scope of Rule 97 by this Court and to that extent, the reliance placed by Mr. Alam on the Division Bench of this Court in the case of Dinesh Prasad (supra) is apt and appropriate. As the communication to the Accountant General by the Government, mere in the form of a routine compliance with regard to the entitlement of the petitioner, has been sought to be done without even giving any notice to the petitioner and the said decision being in the teeth of the principle of natural justice must be held to be bad and 14 to that extent, the impugned order is set aside. 15. As a consequence of setting aside the impugned order in part, the matter is also remitted back to the Principal Secretary of the Health Department who now would give a fresh notice in terms of Rule 97 and would decide afresh as with regard to the period of suspension i.e. from 26.7.1996 to 14.6.1997. It has to be noted that in the impugned order the period of suspension has been shown to be 26.7.1996 to 23.9.1997 but when the Government had issued the order on 1.4.1999 revoking the order of suspension of the petitioner with effect from 15.6.1997 in terms of the order of this Court dated 6.12.1996 in CWJC No. 1002 of 1996, the Government cannot extend the period now from 15.6.1997 onwards and therefore, when the Government in fact had already passed an order for payment of salary for the period 15.6.1997 to 24.9.1997 vide its notification dated 1.4.1999, the impugned communication treating the said period to be period of suspension does not seem to be factually correct. 16. As noted above, on the basis of 15 the materials on record of this case, the period of suspension of the petitioner will be only from 26.7.1996 to 14.6.1997 as the Government had revoked the order of suspension with effect from 15.6.1997. Thus, for the said period, the Government has to take its decision as to whether the same will be treated to be break in service or the petitioner will be only deprived of his salary beyond subsistence allowance or both. 17. In view of the fact that the respondents in the counter affidavit have taken a specific plea that the petitioner has been sanctioned pension, gratuity as also other retirement benefit, it would appear that the petitioner has not been given adverse consequence of break in service because had the concept of break in service been truly applied, the petitioner could not have been entitled for payment of any pension. Therefore, the respondents would be well advised to pass any order in terms of Rule 97 by also taking into consideration that the petitioner has already been paid his retirement benefit. 18. At the same time, as this Court has only quashed the impugned order in part 16 on account of violation of principle of natural justice, anything said in this order will not affect the right of the Respondents to take their decision strictly in accordance with law. As the petitioner has retired way back in the year 2000 and is still waiting for finalization of some of his benefit, it would be in the interest of justice that the respondents must take a final decision in terms of Rule 97 within a period of six months from the date of receipt/production of a copy of this order. 19. With the aforementioned observation and direction, this application is disposed of. Patna High Court Dated the 17th August 2010 A.F.R./Rsh (Mihir Kumar Jha, J.)