IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.13187 of 2008
Dr. Madan Mohan Dubey, Son of Late Krishna Kumar Dubey, resident of
67 M.I.G., Kankarbagh Colony, Patna-800023. -Petitioner.
VERSUS
1. The State of Bihar.
2. The Commissioner-cum-Secretary, Department of Health and Family Welfare,
Government of Bihar, New Secretariat, Patna.
3. Deputy Secretary, Department of Health and Family Welfare, Government of
Bihar, New Secretariat, Patna. -Respondents.
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For the Petitioner : Mr. Madan Mohan Dubey (in person).
For the State : Mr. Prabhat Kumar, AC to GA-2.
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04 07.04.2011 The petitioner has come to this Court challenging the
order dated 16.04.2004 as passed by the State (Annexure-12) as well
as the order dated 01.02.2008 (Annexure-15) by which State has
refused to recall the said order, upon representation being filed,
pursuant to orders of this Court. It may be noted that the petitioner
was punished in the departmental proceedings with reduction of his
pensionary benefits by 50%. That is a subject matter of separate writ
petition.
What happened in the present case is that with an order
withholding 50% of the pensionary benefits, the disciplinary
proceedings were concluded by order dated 13.01.2004. The
petitioner, while in service, was suspended. Pending departmental
proceedings, he superannuated. While being suspended, the
disciplinary proceedings were carried out with the aid of Rule-43(b) of
the Pension Rules. Upon superannuation, the suspension itself lapsed
and ordinarily the petitioner was entitled to receive such remuneration
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for the period of suspension but not such payments were made.
Punishment order was passed on 13.01.2004 but no order withholding
the payment of suspended period having been passed, the disciplinary
proceeding came to an end. Petitioner then asked for payment of such
remuneration of suspended period which he has become entitled to. In
addition making the said payment on 16.04.2004 (Annexure-12), a
fresh order was passed wherein it was ordered that nothing more is
paid for the period of suspension. Petitioner assailed the order before
this Court. This Court directed the petitioner to represent before the
authority against the said order and the authorities were directed to
consider the matter. The case was, thus, disposed of by this Court.
Upon petitioner’s representation dated 01.02.2008 (Annexure-15), an
order was passed refusing to recall the order as such.
In my view, this case calls for intervention. It is well
established that a person can remain suspended only while he was in
service. The moment he superannuates, the master-servant
relationship comes to an end. The suspension automatically stands
revoked. The effect would be that the petitioner would become
entitled to due payment of due remuneration of suspension period as a
matter of course. Rule-97 of the Bihar Service Code would not apply
to such a situation because the application of Rule-97 of the Service
Code is dependent upon reinstatement. The consequence of orders
passed in disciplinary proceeding does not arise in the facts of the
present case. There is no question of reemployment as the employee
superannuated. It is, therefore, settled principle that in such an event
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the employee becomes entitled to full payment. Now if for any reason
this payment has been denied to the employee can it without hearing
him or without giving notice to him. The answer is no for the simple
reason that the action of withholding payments amounts to civil
consequences and it is settled law that no order which has adverse civil
consequences can be passed without hearing. This is basic principle of
natural justice. It is equally well established that an order passed in
course of violation of natural justice is void-ab-initio. That being so,
the order dated 16.04.2004 passed by the State, as contained in
Annexure-12, is void-ab-initio. If we refer to the subsequent order by
which the State has refused to recall the order, it would show that
primarily State has passed this order on the assumption that the
Central Bureau of Investigation has found petitioner guilty. This is
virtually on the ground that the Central Bureau of Investigation found
no evidence of any culpable action against the petitioner. The
petitioner is completely exonerated of any criminal liability as far back
and petitioner was discharged by the C.B.I. Court in the criminal
prosecution but still the C.B.I. maintains that there were certain other
irregularities for which petitioner can be proceeded departmentally and
with such an order withholding of payment of suspension period, as
held by me above, such an order cannot be passed after superannuation
as Rule-97 is not applicable as there is no reinstatement in this case.
Thus, for the reasons aforesaid, the writ petition is
allowed and Annexures-12&15 are quashed. It is directed that the
petitioner is entitled for full payment of remuneration for the period he
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remained suspended. State would ensure payment within three months
from the date of production of a copy of this order before the
Secretary, Department of Health and Family Welfare, Government of
Bihar, Patna.
Trivedi/ (Navaniti Prasad Singh, J.)