CIVIL WRIT JURISDICTION CASE No.13125 OF 1996 SHEO SHANKAR SINGH, SON OF LATE BAIJNATH PRASAD SINGH, RESIDENT OF VILLAGE UPHRAUL, P.S. – BERHIYA, DIST. – MUNGER (NOW LAKHISARAI), AT PRESENT CHIEF ENGINEER, RESEARCH & TRAINING INSTITUTE, KHAGOL TOWN, DISTRICT – PATNA --------------------------- PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE COMMISSIONER, WATER RESOURCES (IRRIGATION) DEPARTMENT, GOVERNMENT OF BIHAR, SINCHAI BHAWAN, PATNA 3. THE ENGINEER-IN-CHIEF-CUM-ADDITIONAL COMMISSIONER- CUM-SPECIAL SECRETARY, WATER RESOURCES (IRRIGATION) DEPARTMENT, GOVERNMENT OF BIHAR, PATNA (SINCHAI BHAWAN). 4. THE ADDL. COMMISSIONER, WATER RESOURCES (IRRIGATION) DEPARTMENT, GOVERNMENT OF BIHAR, SINCHAI BHAWAN, PATNA 5. THE CHIEF ENGINEER, WATER RESOURCES (IRRIGATION) DEPARTMENT, PURNEA 6. SENIOR ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTATN GENERAL BIHAR, BIRCHAND PATEL MARG, PATNA 7. BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA 8. DEPUTY SECRETARY TO THE GOVERNMENT-CUM-CHIEF VIGILANCE OFFICER, WATER RESOURCES DEPARTMENT, SINCHAI BHAWAN, PATNA ------------------------- RESPONDENTS ----------- FOR THE PETITIONER: SHRI UMESH PD. SINGH, SR. ADV. SHRI SIYA RAM SHAHI, ADV. SHRI AMOD KUMAR, ADV. FOR THE STATE: SHRI RANJAN KUMAR, AC TO AAG-4 FOR B.P.S.C.: SHRI VIJAY PANDEY, ADV. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA Mridula Mishra, J. Heard learned counsel for the petitioner, and the State as well as B.P.S.C. Petitioner has retired as officiating Chief Engineer on 31st of December, 1996. Just few 2 months before his superannuation, vide Order No. 65, dated 15.03.1996, communicated vide Memo No. 478, dated 15.03.1996, the petitioner was awarded punishment by the Government, differing with the Inquiry Report in a Departmental Proceeding. Prayer of the petitioner is to quash the Order No. 65, dated 15.03.1996, Annexure-26 and also to cancel the last pay certificate, issued by the Accountant General, Bihar, reducing three increments, already approved to the petitioner, prior to 15th December, 1995. The Accountant General has issued such last pay certificate in compliance of the punishment awarded in the Departmental Proceeding relating to withholding of three increments with cumulative effect. Petitioner’s grievance is that legally, Accountant General could not have issued last pay certificate, reducing three increments, which has already been approved, much before the imposition of punishment order, as the effect of punishment like withholding of three increments with cumulative effect could not have been retrospective. The punishment of withholding of three increments, in all 3 cases would be prospective. Simply because the petitioner was going to retire, the Accountant General could not have made it effective retrospectively. Further prayer of the petitioner is for a direction to Respondents to allow him promotion to the post of Chief Engineer with effect from the date, juniors to him have been allowed, as only due to pendency of the Departmental Proceeding, he was denied promotion, though continuously for a very long time, he discharged the duties of Chief Engineer’s post on substantive basis, though receiving salary to the post of Assistant Chief Engineer. This is the second round of litigation, almost for identical reliefs by the petitioner. Earlier, same Departmental Proceeding had concluded and vide Order dated 05.10.1994, similar punishment had been awarded against the petitioner in the Departmental Proceeding. Since, the punishment had been awarded to the petitioner by the Government in disagreement with the enquiry report, whereby the petitioner had fully been exonerated from the charges framed against him, it was essential that second show-cause notice should 4 have been issued disclosing reasons for disagreement with the proposed punishment. However, the punishment was awarded, in disagreement of recommendation of the Enquiry Officer, without showing the reason for such disagreement. Another reason for challenging the Order, dated 05.10.1994, awarding punishment in Departmental Proceeding was that while issuing notice for filing second show-cause, the enquiry report has not been furnished to the petitioner and he was not afforded any opportunity of hearing, which ought to have been given to him in case the Government intended to differ from the enquiry report and award punishment. The Writ Application was allowed and Order dated 05.10.1994 was quashed. The matter was remitted back to the authorities concerned for reconsideration. Specific direction was issued for furnishing enquiry report, indicating the grounds of disagreement with the proposed punishment and thereafter giving opportunity to the petitioner of filing show-cause and opportunity of hearing, the Respondents were directed to pass final order. In compliance of the direction in the Writ Applications, 5 final order has been passed. The impugned order is the final order, passed by the Respondents, after the remand of the matter by the High Court. Petitioner has challenged the impugned order almost on the same grounds, stating that even after specific direction of the High Court, no reason for disagreement was disclosed for differing with the enquiry report. Simply, petitioner was asked to submit his show-cause against the proposed punishment. Counsel for the petitioner submits that the law is settled on this point. In case the Government is interested in passing an order of punishment in disagreement with the enquiry report, the delinquent must be informed about the reasons for such disagreement, so that he can submit a show-cause to defend himself and may utilize this opportunity to convince the Department and to make out a case for himself. The delinquent given the opportunity on coming to know about the reason for agreement may persuade the disciplinary authority to agree with the enquiry report. In case the reason is not assigned by the authorities for its disagreement with the enquiry report, it will be 6 deemed to be violative of natural justice and the delinquent will be presumed to have been deprived of the opportunity to defend himself. Counsel for the petitioner submits that the direction of the High Court in the Writ Applications was completely overlooked by the Respondent Authorities and similar illegality was committed by them, observing which punishment was awarded to the petitioner, on earlier occasion. It has also been submitted that even the punishment order remained same as it was in order dated 05.10.1994. Three punishments have been awarded: (1) regarding censor (2) with holding of three increments with cumulative effect; and (3) non-payment of salary or any other allowance for the period of suspension, except the subsistence allowance, though the period will be counting for the pension. Counsel for the petitioner submits that so far the first punishment is concerned that is irrelevant on account of the superannuation of the petitioner, after few months of this order. So far 3rd punishment is concerned that is also not relevant as petitioner has been paid his full salary for the period of suspension. Only one punishment, i.e, 2nd 7 punishment, has affected adversely the interest of the petitioner. Legally, even this punishment could not have been implemented in the case of petitioner, but illegally it has been implemented, on account of issuance of last pay certificate by the Accountant General. The effect of this punishment should have been prospective, but that has been made retrospective and his increments for the years 1991- 92, 1992-93 and 1993-94, have been cancelled in order to implement the punishment of withholding of three increments with cumulative effect. On account of withholding all three increments, the petitioner has suffered monetary loss and his pension has been fixed at a lower scale. Counsel, appearing for the State was asked as to whether the Accountant General could have legally issued last pay certificate of the petitioner in this manner, and whether legally the punishment of withholding of three future increments with cumulative effect could have been implemented retrospectively by canceling increments already allowed to the petitioner. Only submission which the Counsel for the State could make is that the State has done nothing. The last pay certificate, canceling 8 past increments, has been issued by the Accountant General and only he can explain the reason for it. Petitioner’s superannuation was due within few months, as such that could have been the reason for issuance of last pay certificate in this manner, as no future increments were due to the petitioner, which could have been deducted. I completely disagree with such submission for the reason that period during which there was no punishment order and the increment has already been allowed to the petitioner, those increments could not have been cancelled for implementing the punishment awarded in a Departmental Proceeding. Whenever punishment order regarding withholding of increments is passed, it always has a prospective effect and in any case it must have been prospective. By making it retrospective, an illegality has been committed by Respondents and that can not be allowed. Accordingly. The last pay certificate issued by the Accountant General contained in Annexure-28 is quashed. The Respondents are directed to recalculate and re-fix the pension and pensionary benefits of the petitioner. Additional prayer, which 9 has been made by the petitioner regarding promotion on the post of Chief Engineer, on account of his officiating as Chief Engineer, can not be allowed in this Writ Application. However, petitioner has liberty to represent his case before the authorities concerned and the authorities have liberty to consider it in accordance with law. With these observations, this Writ Application is disposed of. Patna High Court, Patna Dated: 29.04.2011 NAFR/Shashi Kant Mishra (Mridula Mishra, J.)