IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.910 of 2008 --------- Manna Prasad son of Late Ram Raj, resident of Mohalla-Laliyahi, P.S. Katihar, District-Katihar. … Petitioner- Appellant. Versus 1. The State of Bihar through the Secretary, Department of Water Resources, Government of Bihar, Patna. 2. The Deputy Secretary, Department of Water Resources, Government of Bihar, Patna. 3. The Executive Engineer-cum-Flying Squad, Division No.7, Water Resources Department, Patna. …. Respondents- Respondents. ----------- For the appellant : Mr. Ashok Kumar Keshari, Advocate For the respondents : Mr.Siddhartha Prasad, Junior Counsel to Additional Advocate General IX ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 20th November, 2008. Appeal is admitted. 2. Mr. Siddhartha Prasad, advocate, waives service for the respondents. 3. Looking to the short issue involved in the appeal, we hear and decide the appeal at this stage itself. We proceed, accordingly. - 2 - 4. The appellant is the writ petitioner. For the sake of convenience, we shall refer him as ‘the petitioner’ hereinafter. On 21st August, 2001, the petitioner filed a writ petition before this court putting in issue the legality and correctness of the order dated 20th July, 1996 whereby pursuant to disciplinary proceedings, he had been awarded four punishments, namely (i) censure to be recorded in his service book in the year 1993-94; (ii) stoppage of annual increment for seven years without cumulative effect; (iii) stoppage of promotion for seven years from the due date and (iv) payment of subsistence allowance only during the period of suspension. 5. Diverse grounds have been set up in challenging the said order, inter-alia, that under rule 49 of Civil Services (C.C .A) Rules, either withholding of increments or promotion could be awarded as punishment and not both and, therefore, award of punishment to the extent of (ii) and (iii) is bad in law. 6. The Single Judge did not consider the writ petition on merit, but ousted the writ petitioner on the ground of laches. 7. It is true that writ petition was filed by the petitioner after lapse of about five years, but then the writ petition was admitted, albeit keeping the question of delay open for consideration. In a case like this where the petitioner although raised many grounds in assailing the order of punishment, but confined his prayer to one legal aspect only, viz; that stoppage of increment for seven years without cumulative effect and stoppage of promotion for seven years from the - 3 - due date could not have been simultaneously awarded as punishment being in contravention of Rule 49, in our considered view, surely, the delay in filing the writ petition could not be an impediment for consideration of this aspect on merit. 8. Rule 49 of the Civil Services (CCA) Rules reads thus: “49. The following penalties may, for good and sufficient reason and as, hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely (i) Censure. (ii) Withholding of increments or promotion including stoppage at an efficiency bar. (iii) Reduction to a lower post or time-scale, or to a lower stage in a time scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. [(iv-a) Compulsory retirement] (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment; Explanation I.-- The discharge— (a) of a person appointed on probation, during or at the end of the period of probation, on ground arising out of the specific conditions laid down by the appointing authority, e.g., want of a vacancy; failure to acquire prescribed special qualifications or to pass prescribed test, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, (c) of a person engaged under contract, in accordance with the terms of this contract. does not amount to removal or dismissal within the meaning of this rule. Explanation II-- The discharge of a probationer, whether during or at the ends of the period of probation for some specific fault or on account of his unsuitability for the services, amounts to removal or dismissal within the meaning of this rule. Explanation III-- Compulsory retirement of a Government servant in accordance with the provisions relating - 4 - to his superannuation or retirement does not amount to penalty within the meaning of this rule.” 9. It would be, thus, seen that Clause (ii) of Rule 49 provides for either withholding of increments or promotion including stoppage at an efficiency bar as punishment and not both. As a matter of fact, junior counsel to AAG IX fairly conceded the position that on a plain reading of Rule 49 (ii), he is not in a position to defend the award of punishment of stoppage of annual increments for seven years without cumulative effect as well as stoppage of promotion for seven years from the due date. In this view of the matter, obviously, one of these two punishments has to go. As to which of the punishment, namely withholding of increment for seven years without cumulative effect or stoppage of promotion for seven years from the due date must stick to the petitioner needs to be left to be decided by the disciplinary authority as it may not be proper for us to choose one of these punishment. 10. We, accordingly, allow this letters patent appeal to the extent below: (i) The order ( Memo No.1474 dated 20th July, 1996) passed by the Deputy Secretary, Water Resources Department, Government of Bihar, Patna is quashed and set aside to the extent punishment of stoppage of annual increment for seven years without cumulative effect as well as stoppage of promotion for seven years from the due date have been awarded to the petitioner. - 5 - (ii) The disciplinary authority shall proceed in accordance with Rule 49(ii) of the Civil services (CCA) Rules and award either withholding of increments or stoppage of promotion for seven years from the due date by way of punishment. This exercise shall be completed by the disciplinary authority within three months from the date of receipt of the order. It is clarified that save and except to the extent indicated above, the order dated 20th July, 1996 stands. (iii)) Consequent upon the order that may be passed by the disciplinary authority as directed above, the consequential benefits shall be given to the petitioner as may be admissible. (iv) The parties shall bear their own cost. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil