IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10920 of 2001 DEVENDRA PRASAD SAHI Versus THE STATE OF BIHAR & ORS ----------- For petitioner: Mr.Pushkar Narain Sahi, Adv. Mr.Ajay Kumar Singh, Adv. For Respondents: Mr.Prabhat Kumar Singh, SC-21 Mr.Sanjeev Kumar Singh,JC to SC-21 4/ 22-Sep-08 Heard learned counsel for the petitioner and learned counsel for the State. By the impugned order contained in Annexure-3 dated 10.1.2001, partly modified by order dated 1.12.2005 the petitioner has been awarded minor punishments of censure and stoppage of promotion for five years. By modification it was clarified that censure will relate to the year 1993-1994 and in the earlier order it was wrongly mentioned as 1992- 1993. Petitioner is also aggrieved by rejection of his appeal by the appellate order dated 30.7.2001 (Annexure-5). 2 There is no dispute that petitioner is a Class-III employee of the State of Bihar in the department of Water Resources and he was given an opportunity to explain his negligence for not putting up the file of an Executive Engineer who was to be charged for certain acts but could not be charged because of his superannuation, on account of delay in putting up the file. Such show-cause opportunity was given by Annexure-1. The petitioner submitted his show-cause by Annexure-2 and after considering the show-cause the impugned order of punishment contained in Annexure-3 was issued by the Government of Bihar in the concerned department under the signature of a Deputy Secretary. It was first submitted on behalf of the petitioner that noting in the files which are admitted in the counter affidavit show that the Secretary of the 3 Department placed the concerned file before the Minister of the department concerned and thereafter the impugned order of punishment was passed against the petitioner. According to the learned counsel for the petitioner in the case of Government Servant up to Class-II it is necessary under the rules of the Executive Business to place the disciplinary matters before the concerned Minister but it is not required in the case of Class-III employees like the petitioner. On going through Rule-22, of the Rules of Executive Business, 1979 which was cited before the Court, it is found that Rule-22(1) gives power to the each Minister to require the Secretary to place such matters before him as the Minister may want. But in case of disciplinary proceeding concerning Class- II State Service Officers it appears mandatory to place the matter before the 4 concerned Minister. The stand of learned counsel for the State is that there is no rule debarring such matters to be placed before the concerned Minister and hence the order of punishments suffers from no illegality moreso when the provision for appeal provided under the Bihar and Orissa Subordinate Services Rules 1935 does not indicate that the Minister shall be the appellate authority. The relevant rule providing for appeal is Rule-4 of the aforesaid Rules which only indicates that every member of the Subordinate Services shall be entitled to appeal to the authority immediately superior to the authority which passed an order of punishment. In view of the facts and position in the relevant rules noticed above, this Court finds that the petitioner had been given required 5 opportunity to explain his conduct amounting to negligence as required under the rules for imposing minor punishments. It is also found that the action of the Respondents in placing the disciplinary matter before the Minister was not violative of any rules and hence the order of punishment suffers from no illegality on that account. So far as the order of the appellant authority is concerned, it is found that the appeal in this case has been disposed of at the level of the Water Resources Department which can only mean a stage up to the concerned Minister who was party to the order of punishment. Therefore, the right of appeal available to the petitioner was not observed by the Respondents in substance because his appeal was required to be considered by a higher authority in view of the rules already noticed above, particularly Rule- 6 4 of the Bihar and Orissa Subordinate Services (Discipline & Appeal) Rules, 1935. The appellate order, therefore, must be held to be against law and hence the order contained in Annexure-5 is hereby quashed. The appeal of the petitioner is directed to be reconsidered by an authority superior to the Minister of the concerned department, which in this case would mean the Cabinet of the State Government, at an early date preferably within six months. It is made clear that the petitioner has also challenged a part of order contained in Annexure-8 whereby the petitioner has been promoted w.e.f. 2004 instead of 1999 on account of one of the minor punishments, i.e, withholding his promotion for five years. It goes without saying that if the petitioner succeeds in appeal, in that case the authorities 7 would be obliged to reconsider the date of grant of promotion to the petitioner as mentioned in Annexure-8. The writ petition is allowed to the aforesaid extent only. In the facts of the case, there shall be no order as to costs. perwez (Shiva Kirti Singh, J.)