IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3146 of 2010 1. BRIJ NANDAN PRASAD S/O LATE SADASHIV MAHTO R/O VILL.- BHOJPUR, P.S.- MANPUR, DISTT.- NALANDA AT PRESENT RESIDENT OF MOH.- PATEL NAGAR, SOUTH OF D.M.KOTHI, P.S.- LAHERI, DISTT.- NALANDA Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER PATNA DIVISION, PATNA 3. THE COLLECTOR NALANDA AT BIHAR SHARIF 4. THE DEPUTY COLLECTOR ( REVENUE ) NALANDA AT BIHARSHARIF 5. THE DEPUTY COLLECTOR, ESTABLISHMENT NALANDA AT BIHARSHARIF 6. THE DEPUTY COLLECTOR, LAND REFORMS NALANDA AT BIHARSHARIF ----------- 2. 31.08.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. A memo of three charges were served on the petitioner on 16.5.1994. Charge 1 was for unauthorized absence of one day without leave i.e. 25.1.1994 and again for one day on 4.3.1994, indicative of his irresponsible behaviour. Charge 2 relates to his absence on 4.3.1994 and refusal to receive the show cause notice in relation thereto. Charge 3 related to a reply given by him on 27.1.1994 using objectionable language indicative of indiscipline. Learned Counsel for the petitioner submits that the petitioner has in fact been paid his salary for both the dates by Bill No. 444/1993-94 and 1/1994-95. He therefore submits that the allegation of unauthorized absence and payment of salary for those two dates are themselves contradictory. On conclusion of the departmental proceedings the punishment of stoppage of three annual increments with cumulative effect was imposed by order dated 28.6.1995. His appeal was disallowed by the Commissioner on 23.7.1996. He then came to this Court in CWJC No. 9812 of 1996 assailing the punishment on the ground that no second show cause notice along with copy of the enquiry report was given. This Court on 2 17.11.1998 on that ground set aside the order of punishment with a direction to proceed afresh in accordance with law. A second show cause notice followed on 17.1.2001 replied by the petitioner when fresh order of punishment dated 12.6.2001 came tobe passed dismissing him from service with effect from 9.6.2001. The petitioner questioned the same before the appellate authority after this Court declined interference in view of the alternative remedy available. While the appeal remained pending the petitioner superannuated on 31.1.2003. Since the proceedings were initiated during his service tenure this Court does not uphold objection of the petitioner that there was a need for a formal order converting the proceeding into one under Rule 43(b) of the Bihar Pension Rules in view of the law laid down by this Court as discussed in 1998 (1) All P.L.R. 476 (Ram Nandan Singh Vrs. State of Bihar & ors) at paragraph 15. The appeal was allowed on 22.8.2006 by the Commissioner declining challenge to procedural infirmities in the departmental proceedings but holding that the punishment of dismissal was not justified on the ground that the Collector went beyond the three charges to invoke other materials before imposing the punishment. The matter having been remanded to the disciplinary authority a second show cause notice was issued when final orders of punishment have been passed on 3.3.2009 visiting him with the punishment of stoppage of three increments with cumulative effect and that nothing was payable for the period of suspension and dismissal but after retirement the retiral dues shall be paid in accordance with law. 3 Learned Counsel for the petitioner submitted that if the petitioner has been paid his salary for the two dates in question, a ground which he specifically raised in his defence, the charge itself becomes nonest. Secondly, if the dismissal has been found to be unjustified and a lesser punishment has been imposed the petitioner is entitled to salary from the date of dismissal till the date of his superannuation. Learned Counsel for the State submitted that reduction of the punishment from dismissal to stoppage of three increments with cumulative effect itself was indicative of application of mind by the disciplinary authority to issues. As far as the issue of salary in between the date of dismissal and retirement is concerned, the submission is that instructions are needed. This Court is satisfied that the issues involved a pure question of law only. The petitioner was firstly subjected to a punishment of stoppage of three increments with cumulative effect. When the matter was remanded for non compliance of procedures the punishment was enhanced contrary to law to one of dismissal. The petitioner was kept out of service when ultimately order of dismissal was held to be unsustainable and a punishment of stoppage of three increments with cumulative effect was re- imposed. The appellate authority held that the disciplinary authority traveled beyond jurisdiction to impose the punishment of dismissal. If the petitioner would not have superannuated he would have been entitled to the relief of reinstatement. He was therefore kept out of service for no fault of his. This Court has also gone through the nature of the charge 4 on which the dismissal was based. The order of dismissal being illegal ultimately held to be not sustainable by the authorities themselves, the petitioner is held entitled to his full salary in between the date of dismissal and his retirement. Reference may usefully be made to a Bench decision in 2005 (2) PLJR 624 (Sri Pran Kumar Ray Vs State of Bihar & ors) which draws its sustenance from similar orders of the Apex Court. In so far as the punishment of withholding of three increments with cumulative effect is concerned, the submission is that it was disproportionate on the facts of the case. For alleged unauthorized absence of two singular dates the petitioner has been facing travail of a departmental proceeding since 1994. The authorities have passed one illegal order after another requiring interference not only by this Court but also by the appellate authority. The petitioner was proceeded with on grounds of unauthorised absence, irresponsible behaviour in refusing to accept notice to show cause for one day absence and indiscipline in his reply for the second day of absence. The petitioner on both occasions in his reply to the second show cause notice specifically mentioned that he had been paid salary for the two dates. This has not been considered or denied in the order of punishment on both occasions. The absence therefore stands condoned if salary has been paid. That does not wipe out the other two allegations of irresponsible behaviour and indiscipline which in fact the petitioner has admitted and his explanation has not been considered satisfactory by the disciplinary authority. In (2009) 11 SCC 678 (Tushar D. Bhatt Vs. State of 5 Gujrat & anr) one of the charge in the departmental proceeding was use of intemperate language not befitting a government employee. The appeal against the punishment was rejected. This Court is not persuaded nearly 16 years later to remand the matter on the quantum of punishment to the authorities. The petitioner has superannuated in the meantime. The harassment suffered by him in a departmental proceeding pending since 1994 which has also affected his chance of promotion when his juniors have been promoted as he contended, is considered sufficient punishment for the petitioner. This Court therefore considers it proper to direct in the facts and circumstances of the case rather than to remand the matter on the quantum of punishment to modify the same into one of stoppage of three increments with non cumulative effect. The salary for the period of dismissal till retirement and the deduction made, if any, based on cumulative effect of the increments are directed to be paid in a period of two months from the date of receipt and/or presentation of a copy of this order. The writ application stands allowed in part with the modification of the punishment as directed. Snkumar/- (Navin Sinha,J.)