IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4594 of 1997 Rama Shankar Shrivastava, son of late Gopalji Shrivastava, Junior Engineer, at present posted at North Bihar Road Circle, Muzaffarpur as Estimator, police Station, town and district Muzaffarpur. ---------Petitioner Versus 1. The State of Bihar. 2. The Road Construction Department, Government of Bihar, Patna. 3. The Commissioner and Secretary, Road Construction Department, Government of Bihar, Patna. 4. The Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, Government of Bihar, Patna. 5. The Joint Secretary (Vigilance), Road Construction Department, Government of Bihar, Patna. 6. The Engineer-in-chief-cum-Additional Commissioner-cum-Special Secretary, Technical Examiner Cell, Government of Bihar, Patna. 7. The Deputy Secretary (Vigilance), Road Construction Department, Government of Bihar, Patna. ---------- Respondents ----------- 4 18.5.2011 Heard Mr. J.P. Bhagat, learned counsel for the petitioner. No one appears for the State. In this writ application, the petitioner has assailed the order of punishment contained in the order dated 29.10.1996 (Annexure-7) withholding three increments of the petitioner on cumulative basis only on the ground that no regular departmental proceeding was conducted before inflicting such a major punishment against the petitioner. 2 Mr. Bhagat, while explaining this aspect, would submit that only a fact finding enquiry was carried out and the petitioner was given a copy of such fact finding report which was actually in his favour but, the authority even without framing of charge and initiating a regular departmental proceeding, had passed the order of punishment against the petitioner withholding his promotion for five years as also stoppage of his three increments on cumulative basis and though the appellate authority had only partly modified the order of punishment by reducing it to only withholding of three increments on cumulative basis, the fatal infirmity of passing an order of major punishment without conducting a regular departmental proceeding had vitiated the whole thing. Mr. Bhagat in this regard would submit that as the said order of punishment of stoppage of three increments on cumulative basis is a major penalty, the same could not have been inflicted without conducting regular departmental proceeding and in this regard, he would place reliance on a Division Bench 3 judgment of this Court in the case of Rang Nath Rai and others Vs. State of Bihar and others reported in 1997 BBCJ 154. As noted above, there is no representation on behalf of State and in the counter affidavit also, it has been admitted that no departmental proceeding was initiated against the petitioner. The respondents, in their counter affidavit in fact, have only emphasized that the bridge under construction in the 14th mile of Samastipur-Rosera made over the river Burhi-Gandak had collapsed resulting into death of seven persons and injuries to many others, whereafter, the Government had constituted a Two Men Enquiry Committee and the petitioner was asked to submit his explanation in the light of the findings arrived by the said Two Men Enquiry Committee, whereafter, the order of punishment was passed against the petitioner. In this context, paragraph nos. 10 to 12 of the counter affidavit being relevant is quoted herein below:- “10. That it is further submitted that the aforesaid punishment (Annexure- 7) are minor in nature and Article 311 of the constitution does not 4 apply in his case as the same is applicable only in cases of reduction in rank or dismissal from service and in such cases only departmental proceeding is required (refer 1953 AIR SC 25- Satish Chandra Anand Vrs. Union of India). 11. That it is further submitted that Rule 49 of the Civil Service (Classification, Control and Appeal, Rules) clearly envisaged that for penalties imposed as censure withholding of promotion recovery from pay or withholding of increments no departmental proceeding is necessary. 12. That “Rule 55A” of the aforesaid Rules which is applicable in the case of petitioner has been fully taken care of by the departments by giving adequate opportunity to defend his case.” It thus becomes clear that the respondents also do not deny the fact that no regular departmental proceeding was initiated against the petitioner and in fact he was only subjected to the procedure for a minor penalty in terms of Rule 55A of the Civil Service (Classification, Control and Appeal) Rules, 1930. This aspect of the matter, however, has been fully explained by the Division 5 Bench of this Court in the case of Rang Nath Rai (supra) in relation to 1930 Rules wherein it has been held that stoppage of increment with cumulative effect is a major penalty and thus drawing a regular departmental proceeding is a condition precedent for inflicting such major punishment. In that view of the matter, this Court will have no option but to quash the order of punishment and remit the matter back to the competent authority to draw a fresh departmental proceeding against the petitioner. If the petitioner has retired from service, such proceeding will be conducted and concluded in accordance with the provisions of Rule 43B of Bihar Pension Rules. It is, however, made clear that as this issue had remained pending against the petitioner by way of passing of a final order of punishment before his retirement, the petitioner’s departmental proceeding, now being conducted in terms of Rule 43B, would be deemed to be a continuing proceeding on the basis of the same allegation which was made subject matter of enquiry against the 6 petitioner vide memo no.12578 dated 3rd July, 1978. The said departmental enquiry against the petitioner must be concluded within a period of six months from the date of receipt/production of a copy of this order. Any consequential monetary benefit to the petitioner would be extended only after a fresh decision is taken in the aforementioned departmental proceeding. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)