Allowed

Diwakar Paswan v. the State of Bihar and Ors.

Patna HC31 Jul 2012CWJC/10987/2007

Case brief

AI extract

What is this about?

The Patna High Court held that withholding four annual increments with cumulative effect is a major punishment due to its lifelong impact on pay and pension. The court ruled that failing to supply the enquiry report to the petitioner before imposing this punishment violated natural justice and quashed the orders.

What did the court decide?

Annexure-1 and Annexure-2 (orders of punishment and affirmation) are quashed and the matter remanded to the Disciplinary Authority for reconsideration de novo.

Diwakar Paswan Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2012)

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Patna High Court CWJC No.10987 of 2007 (3) dt.31-07-2012

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10987 of 2007

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====================================================== Diwakar Paswan son of Phoolo Paswan resident of Pokharia, P.O.Begusarai, P.S.-Begusarai, District-Begusarzai. At present posted as Nazir, Begusarai Anchal Block, District-Begusarai. .... .... Petitioner Versus 1. The State Of Bihar. 2. The Commissioner, Munger Division, Munger. 3. The District Magistrate, Begusarai. 4. The Enquiry Officer-cum-Deputy Collector Establishment, Begusarai. 5. Treasury Officer, Begusarai. .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Sujeet Kumar Sinha, Adv. Mrs. Sudha Ambastha, Adv. For the State : Mr. Shubhankar Sharma, AC to GP 11 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 3 31-07-2012 The petitioner was an assistant in the Begusarai District Treasury. He is aggrieved by the order of punishment passed against him by the District Magistrate, Begusarai dated 17.11.2003 as contained in Annexure-2 and the appellate order affirming the same of the Divisional Commissioner, Munger as contained in Annexure-1, dated 19.08.2005. The punishment that has been inflicted on the petitioner is withholding of four increments with cumulative effect and non payment of any further remuneration except subsistence allowance for the period of suspension. Though, the period of suspension would be treated as the period of duty.

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Patna High Court CWJC No.10987 of 2007 (3) dt.31-07-2012

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Heard the parties and with their consent the writ petition is disposed of at the admission stage itself.

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Sri Sujit Kumar, learned counsel for the petitioner submits that the order of punishment and its affirmation by the Appellate Authority cannot be sustained in law in as mush as though the punishment that has been inflicted is a major punishment neither the enquiry report was given to the petitioner nor the second show cause in regard to the proposed punishment. He further submits that the order for non payment of full salary for the period of suspension is also bad as no separate show cause in that regard was issued.

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Learned counsel for the State argues to the contrary and submits that the punishment as inflicted is a minor punishment for which there is no requirement for furnishing the enquiry report, which in any event was never demanded nor was there requirement to issue a second show cause notice. In regard to the withholding of payment for the period of suspension, it is submitted that in order of that nature as is required to be passed in terms of Rule 97 (3) of the Bihar Service Code is a consequential order and thus there is no requirement of a separate show cause notice in that regards. He submits that the judgments of this Court holding to the contrary may require consideration.

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Patna High Court CWJC No.10987 of 2007 (3) dt.31-07-2012

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In my view having considered the matter the writ petition must succeed. The basic argument of the State is depending upon whether withholding of four annual increments with cumulative effect is a major punishment or not. If as the State states that it is minor punishment then probably there is nothing to interfere but if it is a major punishment then there is every reason to interfere. I may note that the punishment was imposed in the year 2003 till then it was the Bihar Boards Miscellaneous Rules read with Bihar Service Code that were governing these matters. Under Rule 166 of the Bihar Boards Miscellaneous Rules it stated that withholding annual increment is a minor punishment. If we look to Bihar Government Servants (Classification, Control and Appeal) Rules 2005 as amended in 2007 it clearly provides that withholding annual increment with cumulative effect is a major punishment. In my considered view, one of the distinctions between a major punishment and a minor punishment is the enduring effect of the punishment. If a punishment like censure or warning does not have enduring effect it would be treated as a minor punishment. But with holding of promotion, reduction in rank or reduction in pay has a life long enduring effect which would be a major punishment. Thus, withholding of an annual increment simpliciter has no enduring effect and could be a minor

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Patna High Court CWJC No.10987 of 2007 (3) dt.31-07-2012

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punishment but no sooner it is made with cumulative effect then the effect endures for the life time of the employee. It carries on even after superannuation as the retirement benefits are calculated on the last pay which is effected by the said punishment. Here, the punishment awarded was withholding of four annual increments with cumulative effect. This amounts to virtually reduction of pay. It effectively reduces the pay of the petitioner for all time to come including his pensionary benefits that is undisputedly a major punishment. Thus, I hold that the contention of the State that the petitioner was visited with a minor punishment and as such giving of enquiry report or a second show cause was unnecessary and is not correct.

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Once, it is held that it was a major punishment that was inflicted it follows that the enquiry report had to be furnished to the petitioner. This is so because the Disciplinary Authority was the Collector-cum-District Magistrate, Begusarai, he had entrusted the enquiry to Deputy Collector Establishment. Thus, the Disciplinary Authority has not come to finding of fact of guilt on his own. He was dependent upon finding recorded by the Deputy Collector as the enquiry officer. Thus the enquiry officer and the Disciplinary Authority were two different persons. As has been held by the Hon’ble Apex Court in the case of Union of India &

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Patna High Court CWJC No.10987 of 2007 (3) dt.31-07-2012

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Ors. Vs. Ramzan Khan AIR 1991 SC 471 , which has been affirmed in the case of Managing Director ECIL, Hyderabad VS. B. Karunakar & Ors. (1993) 4 SCC 727 that in such a situation the delinquent has to be given opportunity to impeach the veracity of the enquiry report. This can only be achieved by giving the copy to the delinquent before the Disciplinary Authority makes up his mind to accept it as held in the case of Managing Director ECIL (supra). The non supply thereof itself creates a great prejudice. Unless the delinquent knows on what fact and on what finding the enquiry officer has held him guilty he does not know what is persuading the Disciplinary Authority in punishing him. In absence of these informations how can he make any effective representation to the Disciplinary Authority not to find him guilty. That is the prejudice that is caused by non supplying of inquiry report whether it is asked for or not. Thus, on the facts aforesaid wherein undisputedly the petitioner not having been supply the enquiry report there was gross violation of principles of natural justice which vitiate the ultimate order of punishment. If that be so, then the appellate order would fall along with the order of punishment. Once that is so, then it is not for this Court to decide other issues in that regard. On this finding alone, I have no option but to set aside the order of punishment as affirmed by the

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Patna High Court CWJC No.10987 of 2007 (3) dt.31-07-2012

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Appellate Authority and remand the matter to the Disciplinary Authority i.e. Collector, Begusarai for reconsideration of the matter de novo from the stage of supply of the enquiry report.

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Accordingly, Annexure-2 and Annexure-1 respectively are quashed. The writ application thus stands allowed.

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(Navaniti Prasad Singh, J)

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Safik/-

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A.F.R.

Diwakar Paswan v. the State of Bihar and Ors.

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Diwakar Paswan v. the State of Bihar and Ors.

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