CIVIL WRIT JURISDICTION CASE No.12298 OF 1996 In the matter of an application under Article 226 Of the Constitution of India SIDHNATH PRASAD---------- --------Petitioner Versus THE BIHAR SCHOOL EXAMINATION BOARD & Ors-Respondents For The Petitioner :M/s M.N.Parbat, G.Prasad & V.P. Srivastava, Advocates For The Respondent :Mr. Lalit Kishore,Sr.Advocate Mr. Piyush Lall, Advocate ---------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J. For certain acts of omission and commission committed by the petitioner while in service of the respondents Bihar School Examination Board a notice was issued to the petitioner as to why a departmental proceeding should not be initiated against him. It transpires from the averments made in the writ application that no departmental enquiry was held in the matter. Petitioner was directed to peruse the various documents and file his reply to the said show cause. Based on the explanation offered, the Secretary, Bihar School Examination Board vide order dated 10.6.1994 contained in annexure-1 decided to impose punishment of withholding of two annual increments with cumulative effect. Even a warning was issued to him. Petitioner therefore, approached this High Court challenging the validity of the punishment order in question. The first contention of learned counsel appearing on behalf of the petitioner is that in absence of any enquiry having - 2 - been conducted in the matter and the nature of punishment being such, the concerned punishment of withholding two annual increments with cumulative effect could not be passed. The punishment in question par takes the nature of a major punishment for which a departmental enquiry is mandatory and not obligatory. In support of his contention learned counsel relies on a decision of the Division Bench rendered in the case of Rang Nath Rai & ors vs. the State of Bihar & Ors. along with other analogous cases reported in 1997 (2) PLJR 421. Emphasis is placed on paragraph-6 of the said decision which is reproduced below where the ratio of the case has been laid down by the Division Bench. Para-6: “A plain reading of Rule 55A would show that only the penalties specified in clauses (i), (ii) and (iv) of Rule 49 can be imposed by following the procedure prescribed under this Rule. The penalties of censure and recovery of amount are specified in clauses (i) and (iv) respectively of Rule 49 and, therefore, could be imposed on the petitioners without taking recourse to the regular enquiry under Rule 55. Now it has to be seen whether the penalty of stoppage of annual increments with cumulative effect could also be imposed on the petitioners in view of clause (ii) of Rule 49 which provides for withholding of increments or promotion including stoppage at an efficiency bar. According to the learned counsel for the petitioners withholding of annual increments with cumulative effect is covered by clause (iii) and not by clause (ii) of Rule 49 and as the penalty specified in clause (iii) could not be imposed by following summary procedure under Rule 55A the impugned orders cannot be legally sustained.” Submission of learned counsel for the petitioner is that taking into account the categorical statement made by the respondents that no enquiry was held but the punishment came to be imposed upon the petitioner based on an enquiry held by the Vigilance Officer, the punishment cannot be sustained. - 3 - Learned counsel appearing on behalf of the respondents Bihar School Examination Board submits that in terms of Regulation 50 read with Regulation 60, the punishment in question has been treated to be a minor in nature and the respondents have committed no wrong by adopting this mechanism before imposing the punishment in question. The Court could have had an occasion to accept the submission made on behalf of the respondents but for the fact that Regulation 50 is paramateria with Rule 49of Civil Services (Classification, Control and Appeal) Rules, 1930. In Bihar School Examination Board Regulation 50 identical entry as the Classification Rule specially Rule 49 has been made. The Division Bench had held that the procedure laid down in Rule 55 would be in order and not Rule 55A which corresponds to major and minor punishment respectively. Withholding of increment by itself is a minor punishment but when it is made cumulative in nature then as the Division Bench has opined that departmental enquiry was called for. Since no enquiry of the kind has been held in the case of the petitioner, therefore, the Court has no option but to interfere with that part of the punishment where two increments with cumulative effect had been withheld This writ application is allowed and the punishment order contained in annexure-1 to the extent indicated above and the order rejecting the representation of the petitioner - 4 - contained in annexure-15 are quashed. It is needless to say that by quashing the punishment order the petitioner would be entitled to the consequential benefits. However there will be no order as to costs. (Ajay Kumar Tripathi, J.) Patna High Court, Patna Dated the 19th September, 2008 NAFR/RPS/Sr.Secy.