IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5373 of 2005. - - - - - Akhileshwar Kumar Pandey son of Late Ram Naresh Pandey, R/o village Harpur, P.S.Charphokhari Dist.Bhojpur at Ara,presently posted as Hawildar, B.M.P.14,Patna.. . . . . . . .….. Petitioner. Versus 1.The State Of Bihar. 2.TheD.I.G. cum I.G.of Police, Bihar, Patna. 3.The D.G., Bihar Military Police, Bihar, Patna. 4.The D.I.G., Bihar Military Police, Central Range, Bihar, Patna. 5.The Commandant, Bihar Military Police – 14,Bihar,Patna. 6.The Conducting Officer cum-D.S.P cum Care Taker, Secretariat Campus, Patna. 7.Binay Kumar Singh, Hawildar, Grihpal Branch, B.M.P.14,Patna. ……………………….. Respondents. For the Petitioner : Mr.Binod Kumar,Adv. For the State : G.A. 19. 4. 28.06.2011 In this case, the petitioner has challenged the order of punishment dated 21st May 2003 arising out of Departmental proceeding No.03 of 2002 whereby and whereunder he has been awarded the punishment of stoppage of one increment with cumulative effect which will be equivalent to 2 black spots and he will not be entitled for the salary for the period 14th June 2002 to 15th April 2003, except what he has been paid by way of subsistence allowance. The aforesaid period will be adjusted against 6 monthly earned leave and recovery of house rent for the period the petitioner was in illegal possession of the house. Petitioner further challenged another order of punishment dated 22nd May 2003 which is related to the enquiry proceeding no.16 of 2002. The order of punishment is in identical term to that of earlier proceeding In this case, two enquiry proceedings were initiated vide enquiry proceeding Nos. 3 of 2002 and 16 of 2002. The allegation in the enquiry proceeding no.3 of 2002 is the that the petitioner illegally and 2 forcefully occupied the Govt. quarter which was allotted to another employee and even after direction of the Superintendent of Police, he did not vacate the quarter. Another charge is that even after the repeated directions, he did not vacate the quarter. An enquiry proceeding was conducted in which the petitioner participated which is apparent from the original record produced by the State counsel from which it appears that he was served charge-sheet of enquiry proceeding no.3 of 2002 as well as enquiry proceeding no.16 of 2002. After the end of enquiry, the petitioner has filed the 2nd show cause along with enquiry report. In the 2nd charge-sheet when it was served upon him he did not take any step and as such, he cannot make complaint of violation of natural justice. He filed 2nd show cause in proceeding no.3 of 2002 and considering the same, the disciplinary authority passed the order of punishment as stated hereinabove, vide Annexurre8 & 9. The petitioner filed the appeal before the appellate authority who considered the appeal and the same was rejected with the modification, to the extent both the order of punishments were merged. The petitioner filed memorial which was also rejected, hence this writ. Learned counsel for the petitioner stated that he was not given opportunity, as he was not provided any show cause with regard to 2nd enquiry but the counsel for the State stated that the petitioner was given all possible opportunity to participate in the proceeding and, accordingly, he had also participated. The disciplinary authority after considering the evidence on record and looking into the gravity of charge, order of punishment was passed. It has been further stated that the punishment is commensurate with the charge. I myself have examined the original records and found 3 that all the possible steps were taken to ensure the compliance of natural justice. In the judicial review this Court is only required to see procedural illegality and irregularity and to insure the fair treatment to delinquent and the Court will not act as an appellate court to examine the evidence made during the enquiry. This Court may interfere with the order of punishment if conclusion upon consideration of evidence, reached by disciplinary authority is or suffers from error on the face of record or based on no evidence. upon consideration of evidence, reached by disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence. At the same time the court will only examine with regard to the punishment when it is disproportionate. I do not find the punishment to be so disproportionate, arbitrary and illegal. In this connection, the judgment of the Hon’ble Supreme Court rendered in 1996 S.C. 484 (B.C.Chaturvedi Vs. Union of India). will be relevant. The Hon’ble Supreme Court in consideration of judicial review has said as follows : “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the 4 authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappeciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be 5 permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR) : (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the fact of the record or based on no evidence at all, a writ of certiorari could be issued.” With regard to the another part of submission, the petitioner has contended that before passing the order of depriving the petitioner from his salary for the suspension period except subsistence allowance it was required that Disciplinary Authority ought to have given notice according to the provisions of Section 97(3) of the Bihar Service Code which says that before passing the order depriving the salary, the petitioner should have been given a show cause and only thereafter the order could be passed in this regard.. In support of this submission, he has relied on a decision of this Hon’ble Court reported in 2003(4) PLJR 68 (Pramod Kumar Vs. Champaran Kshetriya Gramin Bank which supports his contention. Looking into the judgment and the provisions of the Bihar Service Code, this Court is of he view that disciplinary authority ought to have given notice in terms of Rule 97(3) of Bihar Service Code before passing order depriving his salary except the subsistence allowance. Rule 97(3) of the Bihar Service Code is as follows: (1)When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order --- 6 (2)……… (3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe: Provided that the payment of allowance under clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible.” In this context, this Court in the case of Pramod Kumar V. Champaran Kshetriya Gramin Bank reported in 2003(4) PLJR 68 held as under: “Taking into consideration the fact that the discretion has been vested in the authority and that the order passed by the authority may be prejudicial or detrimental to the employee, it is implied that an opportunity of hearing is to be given to the concerned employee before passing the order under proviso to Regulation 30 (4) of the Service Regulation. Rule 97 of the Bihar Service Code contains a provision, inter alia, as to how the period of suspension is to be treated in case of reinstatement/imposition of penalty. Under the said provision, there is no requirement of giving an opportunity of being heard before passing such an order. The said provision was considered by a Division Bench of this Court in the case of Mahabir Prasad Vs. State of Bihar, reported in 1988 PLJR 82 and it was held that opportunity to how cause is to be given before passing an order detrimental to the employee. Thus, we are of the considered view that the order passed by the respondent-authority, as contained in Annexure-13 7 without affording an opportunity to the appellant of being heard is visited in law. Accordingly, the order dated 30.4.1998, as contained in Annexure-13, is quashed with liberty to the respondent-authority to pass a fresh order after giving an opportunity of hearing to the appellant.” In view of settled position of law this Court directs the authority concerned to give him a show cause in terms of Section 97(3) of Bihar Service Code with regard to withholding of salary for the suspension period. The petition is dismissed, excepting the relief as stated above with regard to the salary for the suspension period. The authority will complete the exercise and pass the order within six months from the date of receipt/production of copy of this order. Jay/ ( Shivaji Pandey,J)