IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3935 of 2008 UMESH KUMAR S/O SRI RAMESHWAR SINGH, R/O VILLAGE UTTAR SHERTHU, P.S. PALI IN THE DISTRICT OF JEHANABAD. …………..Petitioner Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE ENGINEER IN-CHIEF, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE CHIEF ENGINEER, NORTH BIHAR (COMMUNICATION) ROAD CONSTRUCTION WING, DARBHANGA. 4. THE CONDUCTING OFFICER-CUM-TECHNICAL ADVISOR, TRAINING, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. THE PRESENTING OFFICER-CUM-ASSISTANT ENGINEER, ROAD CONSTRUCTION DEPARTMENT, PATNA. 6. THE SUPERINTENDING ENGINEER, R.C.D. CIRCLE, DARBHANGA. 7. THE EXECUTIVE ENGINEER, R.C.D., ROAD DIVISION, MADHUBANI. 8. THE ASSISTANT ENGINEER, R.C.D. SUB-DIVISION, JHANJHARPUR, MADHUBANI. …………….Respondents FOR THE PETITIONER :Mr. Vinay Ranjan. FOR THE STATE :Mr. A.A.G.-11 ----------- 02 20.04.2011 The petitioner has filed this writ application challenging the order contained in Annexure-21 dated 24.07.2007 by which he has been awarded the punishment of censure and only been allowed payment of suspension allowance during the period of suspension. The facts of the case are that petitioner was served with a memo of charges (Annexure-17) wherein it is alleged that the petitioner remained absent from duty, and that he had abused the Assistant Engineer. After service of memo of charges, the 2 petitioner filed an application praying therein that he may be given the list of documents, specifically relating to the complaint made against him and that he may be permitted to cross-examine the complaint. This prayer was repeated by the petitioner vide Annexure-19 series. The petitioner was asked to file show cause on the basis of charges served on him. Subsequently, the petitioner filed a show cause. After conducting an enquiry, it was found that the charges levelled against the petitioner were not sustainable. The enquiry report was forwarded with the recommendations of the Enquiry Officer to the Disciplinary Authority. The Disciplinary Authority vide the impugned order without issuing second show cause notice on the petitioner, held the petitioner guilty of the two offences. Counsel for the petitioner submits that the procedure and the manner in which the Disciplinary Authority has passed the order is in complete violations of the norms laid down for conducting departmental proceedings, which have been settled a list of cases, including the case of PunjabNational Bank & Ors. Vrs. Kunj Bihari Misra {(1998) 7 S.C.C. 84} and several other decisions of the Supreme Court which envisage that if the Disciplinary Authority intends to differ with the finding of the Enquiry Officer, he is bound to issue a second show cause notice to the petitioner. Counsel for the State submits that the punishments awarded to the petitioner are minor in nature and therefore, it was not required that a second show cause should be issued to the 3 petitioner. In the background of the facts stated aforesaid, this Court thinks it fit to discuss the contentions raised on behalf of the petitioner and the State. I would begin by enumerating the punishments which can be awarded to an employee by the Disciplinary Authority. They are quoted below. The punishments provided under the Bihar Government Servants (Classification, Control & Appeal) Rule, 2005 are as follows:- Minor Penalties:- (i) censure; (ii) withholding of promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iv) reduction to a lower stage in the time-scale of pay for a period not exceeding three years, without cumuialtive effect. (v) withholding of increments of pay: Major Penalties:- (vi) Save as provided for in clause (iv) reduction to a lower stage in time-scale of pay for a specified period, with further directions as to whether or not the government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay; (vii) reduction to a lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the government servant to the 4 time-scale of pay, grade, post or service from which he or she was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the government servant was reduced and his seniority and pay on such restoration to that grade, post or Service; (viii) compulsory retirement; (ix) removal from service which shall not be a disqualification for future employment under the Government; (x) dismissal from service which shall ordinarily be a disqualification for future employment under the Government: It is clear that payment of only subsistence allowance during the period of suspension is not a punishment as envisaged under Clause 14 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. I may clarify this aspect by referring the case laws on this subject. In the case of Mahabir Prasad Vrs. State of Bihar (`1988 P.L.J.R. 82), the facts were that the delinquent was put under suspension from 3rd January, 1968. A departmental proceeding was started against him. After enquiry the punishment inflicted was censure and it was directed that the punishment may be recorded in the C.R. The State Government further passed an order to the effect that the period of suspension be treated as period on duty, for the purposes of calculating pension and gratuity, but the petitioner would not be entitled to get monetary benefits apart from subsistence allowance during the period he 5 was under suspension. It had been argued on behalf of the petitioner that there is irregularity in this part of the order, which could not have been issued without granting an opportunity to the petitioner to be heard in the matter. The Division Bench of this Court referred to the decision of the Supreme Court in the case of M. Gopalkrishna Naidu Vrs. State of Madhya Pradesh (A.I.R. 1968 S.C. 240). In Gopalkrishna Naidu’s case it was held that Rule 54 of the Fundamental Rules requires a duty to act in accordance with the basic concept of justice fair play and notice ought to have been issued to the petitioner in that case. The provision of Rule 97 of the Bihar Service Code is in pari materia with Rule 54 of the Fundamental Rules. Thus, the Court held that petitioner Mahavir Prasad should have been given a reasonable opportunity to show cause in view of the provision of Clause (3) and (5) of Rule 97 of the Bihar Service Code. The view aforesaid is further fortified by a decision of this Court rendered in the case of Dinesh Prasad Vrs. State of Bihar & Ors. (2006 (4) P.L.J.R. 514. (DB). It would also like to refer to a decision of this Court in the case of Pramod Kumar Vrs. Champaran Kshetriya Bank (2003(4) P.L.J.R. 68 (DB). The facts of the case are that Pramod Kumar faced a departmental proceeding in which order of punishment was imposed on 31.03.1999. During the departmental proceeding the petitioner was put under suspension from 21.03.1995 and the order of suspension was withdrawn on 31.03.1999. Subsequently by a separate order the Disciplinary 6 Authority had ordered that the suspension period should not be treated as the period spent on duty, by order dated 30.04.1998 without giving an opportunity to the appellant to be heard. While considering the service regulations (Rule 30(4)), this Court held that the Disciplinary Authority ought to have given notice to the petitioner before passing order dated 30.04.1998. Rule 97 of the Bihar Service Code provides the manner in which the period of suspension is to be treated. Under the provisions of Rule 97, there is no provision for issuing a show cause. However in view of the decision of Mahavir Prasad Vrs. State of Bihar, the Court has held that a show cause is required to be given before passing an order which is detrimental to the employee. The necessity of passing such an order arises because of punishment, minor or major, is imposed as a result of the departmental proceeding, but at the same time, such an order, is not part of the punishment as prescribed under the Rules. It is an order passed in consequence of a departmental proceeding, as the question only arises when an employee is suspended in contemplation of a departmental proceeding. When an employee who is suspended is exonerated in the departmental proceeding it will be covered by the provisions of Rule 97 of the Bihar Service Code. Reverting to the facts of this case, it is apparent that the petitioner was exonerated by the enquiry officer and subsequently awarded the minor punishment of censure by the Disciplinary Authority, this being a minor punishment, as such there was no 7 need of issuing of a second show cause therefore to that extent the contention of the State is correct. The Disciplinary Authority would only be required to issue a second show cause notice, if the authority had found that the findings of the enquiry officer were wholly perverse, unwarranted and beyond the material on record. However, the Disciplinary Authority ought to have issued a second show cause before passing an order withholding the full salary of the petitioner, under Rule 97 of the Bihar Service Code during the period of suspension for the reasons discussed above. Therefore, this Court quashes that part of Annexure-21 by which the Disciplinary Authority has withheld the entire pay of the petitioner, during the period of suspension. This Court also directs that the petitioner should be paid the difference in pay for the suspension period within four months. In facts of this case taking into account the time which has elapsed since the initiation of the proceeding, no useful purpose would be served by proceeding further in the matter. This writ application is allowed to the extent mentioned aforesaid. Safik (Sheema Ali Khan, J.)