Letters Patent Appeal No. 106 OF 2006 (Against the order dated 6.1.2006 passed in C.W.J.C. No. 4371 of 2004) VIJAY KUMAR TIWARI SON OF LATE RAM LAXMAN TEWARI, RESIDENT OF VILLAGE AND POST-NACHAP, P.S.- MANJHI, DISTRICT- SARAN (CHAPRA) AT PRESENT RETIRED AS RANGE OFFICER OF FOREST FROM BENIPATTI UNDER MITHILA, FOREST EXTENSION DIVISION, DARBHANGA ------------------Appellant Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF FOREST AND ENVIRONMENT, GOVERNMENT OF BIHAR, SINCHAI BHAWAN, PATNA. 3. THE DEPUTY/UNDER SECRETARY, GOVERNMENT OF BIHAR, DEPARTMENT OF FOREST AND ENVIRONMENT, SINCHAI BHAWAN, PATNA. 4. THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, DEPARTMENT OF FOREST AND ENVIRONMENT, GOVERNMENT OF BIHAR, PATNA. ---------------Respondents For the appellant : Mr. Umesh Prasad Singh, Sr. Advocate Mr. Purushottam Jha, Advocate. For the respondents : Mr. S.R.P. Singh, G.A. 8 Mr. S.B.N. Singh, A.C. to G.A.-9 P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K. Katriar,J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by petitioner of C.W.J.C. No. 4371 of 2004 (Vijay Kumar Tiwari versus The State of Bihar and Ors), and raises grievance with respect to the order dated 6.1.2006, whereby the writ petition has been dismissed, and the order of the respondent authorities to the effect that the petitioner shall be deprived of his salary except the subsistence allowance for the period of suspension, has been upheld. 2. A brief statement of facts essential for the disposal 2 of the appeal may be indicated. The petitioner was, at the relevant point of time, functioning as Forest Ranger at Bhim Bandh. He was placed under suspension by order dated 10.06.1999 (Annexure-1), and was subjected to a departmental proceeding. The following charges were framed against him: “¼1½ 1]87]536@& :i;k ljdkjh /ku jkf”k dk futh LokFkZ ds fy;s xcu djuk ¼2½ ljdkjh dk;ksZ esa ?kksj ykijokgh cjruk A ¼3½ vuq”kklughurk ,oa drZO;ghurk ,oa ¼4½ mPpkf/kdkfj;ksa ds vkns”k dk mYya?ku djus gsrq mUgsa rkRdkfyd izHkko ls fuyafcr fd;k tkrk gS A ** The petitioner participated in the departmental proceedings. The learned inquiry officer submitted his report dated 19.9.2000, whereby he was substantially exonerated of the charges. The learned disciplinary authority disagreed with the inquiry report, and inflicted punishments on the petitioner by his order dated 19.4.2001. The petitioner challenged the same by preferring C.W.J.C. No. 14310 of 2002, which was allowed by order dated 8.7.2003 (Annexure-9), whereby the order of punishment was set aside, and the learned disciplinary authority was given liberty to proceed afresh from the stage ahead of submission of the inquiry report. In other words, the learned Single Judge held that, if the learned disciplinary authority intended to disagree with the findings of the learned inquiry officer, he was required to record reasons in support of the disagreement which had to be communicated to the delinquent employee to enable him to show cause. The petitioner in the meanwhile retired from the services 3 of the Bihar Government w.e.f. 31.1.2003. The learned disciplinary authority issued show-cause notice dated 30.9.2003 (Annexure-10), wherein he indicated his reasons for disagreement with the findings recorded by the learned Inquiry Officer, calling upon the petitioner to show cause as to why the punishments indicated therein be not inflicted on him. The proposed punishments are indicated as follows: ^^ ¼d½ :0 1]62]860@& dh jkf”k dh olwyh vkidks ns; lsokUr ykHkksa ls fd;k tkuk ,oa ¼[k½ isa”ku ls 5% LFkk;h dVkSrh A ** The petitioner had shown cause on a consideration of which the learned disciplinary authority passed the impugned order dated 5.1.2004 (Annexure-12), whereby the proposed punishment has been scaled down, and is stated that the petitioner shall not be entitled to his salary beyond subsistence allowance for the period of suspension. 3. The petitioner challenged the order of punishment dated 5.1.2004, by preferring the present C.W.J.C. 4371 of 2004 which has been dismissed by order dated 6.1.2006. The learned Single Judge has held as follows: “On the other hand, learned counsel for the State has submitted that the petitioner is not entitled for full wages as he has not been fully exonerated as is evident from the impugned resolution wherein the competent authority has found his action in not getting the revised estimate approved as his irresponsible act. However, the competent authority decided not to make any recovery of the alleged excess amount as obviously the Government itself has come with the notification regarding the revised wages payable to the labourer. But, insofar as the action of the 4 petitioner is concerned, the same has been found to be irresponsible as he did not get the estimate revised. According to learned counsel for the petitioner, revision of estimate was not his duty/responsibility. However, he has not been able to show either with reference to any Rule, Government decision or even from the pleadings that it was not the responsibility of the petitioner to get the revised estimate approved. Under such circumstances, I find it difficult to hold that the case of the petitioner is covered by sub-rule (2) of Rule 97 and that he is entitled for full pay and allowances for suspension period. This Court, thus, finds no infirmity in the impugned order. Writ petition is, accordingly, dismissed.” (emphasis added) 4. While expressing grievance with respect to the order of the learned Single Judge, learned counsel for the appellant submits that deprivation of salary beyond subsistence allowance for the period of suspension is not a punishment under the Civil Services (Classification, Control and Appeal) Rules, 1930. It cannot, therefore, be inflicted by way of punishment. He next submits that an employee can be deprived of his salary for the period of suspension in terms of Rule 97 (2) of the Bihar Service Code only after a show-cause notice is issued to him, which has admittedly not been served. He submits in the same vein that the show-cause notice dated 30.9.2003 (Annexure-10) proposed two punishments indicated hereinabove, whereas completely different punishment has been inflicted on him. The whole purpose of show cause notice is frustrated. He relies on the following reported judgments: (i) A.I.R. 1998 S.C. 2713 (Punjab National 5 Bank versus Kunj Behari Misra. (ii) 1988 P.L.J.R. 82 , paragraph 3, Mahabir Prasad versus State of Bihar. (iii) 1993 (1) P.L.J.R. 604 paragraphs 8, 9 and 10 (Basishtha Prasad Sinha versus The State of Bihar.). 5. Learned Government advocate has supported the impugned action. 6. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It is correct to state that the learned Inquiry Officer had exonerated the petitioner. The main charge against the petitioner is that he paid at higher rates to the Daily Wagers without prior permission of the authorities. The learned Inquiry Officer concluded that: “ …vr% ou {ks= ds inkf/kdkjh }kjk djk;s x;s dk;Z ,oa jkf”k ds O;; dks ekU;rk fn;s tkus dk i;kZIr vk/kkj gS A... ** He further found with regard to putting up fire line that “… vr% bl dk;Z&en esa dk;Z u gksus dk Bksl izek.k ds vHkko esa ou {ks= inkf/kdkjh dks lansg dk ykHk nsus dh fLFkfr curh gS A... ** The learned Inquiry Officer, therefore, gave benefit of doubt to the petitioner, and stated that he may be exonerated. This had led to the order of punishment dated 19.4.2001 (Annexure-6), which was set aside by the High Court by order dated 8.7.2003, passed in C.W.J.C. No. 14310 of 2002, on the ground that the learned 6 disciplinary authority had not recorded reasons for disagreement with the learned Inquiry Officer, nor the same were conveyed to the petitioner along with show-cause notice. This was followed by show-cause notice dated 30.9.2003, proposing two-fold punishments indicated hereinabove leading to the order of punishment. 7. It is evident on a plain reading of the show-cause notice dated 30.9.2003, that the reasons for disagreement as well as the findings of the learned Single Judge set out hereinabove, the petitioner has not been fully exonerated. It was, therefore, open to the learned disciplinary authority to inflict an appropriate punishment on him. Two-fold punishments proposed to be inflicted on him were indicated in the show-cause notice dated 30.9.2003. It appears to us that the learned disciplinary authority took a lenient view of the matter, and inflicted on him smaller punishment by way of deprivation of salary for the period of suspension except the subsistence allowance. Once it is held that the petitioner was not wholly exonerated within the meaning of sub-rule (2) of Rule 97 of the Bihar Service Code, it goes without saying that no show-cause notice was needed, and deprivation can be ordered in terms of Rule 97. Part or whole of the salary for the period of suspension beyond subsistence allowance for the period of suspension can be ordered for after show cause notice only if the delinquent employee were fully exonerated. The learned disciplinary authority indeed took a lenient approach, and 7 treated the period of suspension valid for purpose of pension and post-retirement benefits. In fact, show-cause notice was issued to the petitioner on 30.9.2003. Law is well settled that the Court can always grant a smaller relief contained in the larger relief though not specifically prayed for, Similarly, in the present situation, it is open to the learned disciplinary authority to inflict a smaller punishment if bigger punishment(s) were proposed. We, therefore, do not find fault with the impugned order. 8. Learned counsel for the appellant has relied on the following portion of the judgment in Mahabir Prasad versus The State of Bihar (supra): “Mr. Tarkeshwar Dayal, learned Counsel appearing for the petitioner did not challenge the validity of the order of censure. Learned counsel however, submitted that the order of the State Government that the period of suspension would be treated as on duty for the purposes of pension and gratuity but the petitioner would not get anything more than the subsistence allowance already received by him during the period of suspension is invalid, because the petitioner was not given an opportunity to be heard before the said order was passed.. In support of this contention, learned counsel relied upon a decision of the Supreme Court in M. Gopalkrishna Naidu V. The State of Madhya Pradesh (AIR 1968 Supreme Court 240). There is substance in the contention of learned counsel.” The judgment is inapplicable to the present case because the 8 petitioner has been deprived of rest of his salary by way of punishment and for which show-cause notice had been issued. 9. It was held by a Division Bench of this Court in the case of Basishtha Prasad Sinha (supra), that the petitioner of that writ petition had been acquitted in the criminal case, and exonerated in the departmental proceeding. It was held in that background of facts that the show-cause notice indicated deprivation of salary for the period of suspension. The judgment for the reasons indicated hereinabove is inapplicable to the facts and circumstances of the present case. 10. It has been held in the judgment of the Supreme Court in Punjab National Bank Versus Kunj Behari Misra (supra) that, in case the learned disciplinary authority disagrees from the findings of the learned Inquiry Officer, he must give opportunity of hearing to the delinquent employee before recording its conclusions. The learned disciplinary authority in the present case had indeed made the mistake of not recording his reasons/disagreement, nor issuing show-cause notice to the delinquent employee on the earlier occasion, which position was corrected by the High Court after the earlier writ petition was disposed of. Thereafter, the learned disciplinary authority did record reasons for disagreement, and indeed issued show-cause notice to the delinquent employee on 30.9.2003. The judgment is inapplicable to the facts and circumstances of the present case. 11. We, therefore, do not find any merit in this appeal. It is 9 accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Kishore K. Mandal, J. : I agree. Patna High Court 12th January, 2009 NAFR/pkj (S.K. Katriar, J.) ( Kishore K. Mandal, J. )