Posted On by &filed under High Court, Patna High Court.


Patna High Court
Kailash Singh vs State Of Bihar And Ors. on 2 August, 2000
Equivalent citations: 2000 (3) BLJR 1994
Author: R M Prasad
Bench: R M Prasad


ORDER

Radha Mohan Prasad, J.

1. In this writ petition, the petitioner is aggrieved by the office order No. 1902/99 dated 13.9.1999 passed by the Chief of Administration of the Bihar State Road Transport Corporation (hereinafter referred to as “the Corporation”), contained in Annexure-6, whereby and whereunder though the departmental proceeding initiated against him has been withdrawn, yet it has been directed that the period of suspension shall be adjusted as against the leave due to him.

2. It is submitted by the learned Counsel for the petitioner that after the proceeding has been withdrawn without culminating into the final order. The respondent-authority is not legally justified in passing the order for adjustment of the period of suspension as against the leave due to the petitioner, inasmuch as by doing so the petitioner has been arbitrarily denied of the leave salary as admissible under the Rules.

3. Mr. Verma, learned Counsel appearing for the respondent-Corporation has submitted that there is no illegality in the impugned order. In this regard, he has referred to Rule 97 of the Bihar Service Code (hereinafter referred to as ‘the Code’), which empowers the authority to determine as to how the period of suspension should be treated. He submitted that the present case is covered by Sub-rule (3) of Rule 97 of the Code as neither it is a case where the petitioner has been fully exonerated nor that the suspension has been found to be wholly unjustified in which case Sub-rule (2) provides that the Government servant shall be given full pay and allowances to which he would have been entitled. According to the learned Counsel, it is a case where the proceeding was initiated in 1998, but could not be concluded till his retirement on 31.1.1999 and as such, the departmental proceeding initiated against the petitioner was terminated and the order for adjustment of the period of suspension as against the leave due to him has been passed in terms of Sub-rule (3) read with Sub-rules (4) and (5) of Rule 97.

4. This Court is unable to accept the said submission of the learned Counsel appearing for the Corporation. It is true that it is not a case where the petitioner has been fully exonerated or that his suspension has been found to be wholly unjustified but, in my opinion, Sub-rule (3) of Rule 97 only covers such cases in which the proceeding initiated has culminated into final order, which may not be necessarily an order for dismissal, removal or suspension. Rule 49 of the Bihar Civil Services (Classification Control & Appeal) Rules provides different natures of punishment which can be imposed on finding of a Government servant guilty after holding a departmental inquiry. As such, Sub-rule (3) read with Sub-rules (4) and (5) of Rule 97 of the Code shall not be applied to such cases where the departmental proceeding initiated against the Government servant has been withdrawn without passing the final order. If the interpretation put forward by the learned Counsel for the Corporation is accepted that Sub-rule (3) read with Sub-rules (4) & (5) vest power in the authority to pass order for determining the admissibility of the portion of pay and allowances merely on account of the fact that the Government servant was placed under suspension in contemplated or pendency of a departmental proceeding even though not culminated into final order, then, in my opinion, such a provision will be wholly arbitrary and violative of Articles 14 and 311 of the Constitution inasmuch as it will amount to imposing punishment without trial in violation of the principles of natural justice. No one can denied of due salary/leave without passing of an appropriate order after giving reasonable opportunity and completion of a departmental inquiry in accordance with law.

5. The writ application is, thus, allowed. The impugned order, contained in Annexure-6 to extent whereby an order for adjustment of leave for the period of suspension of the petitioner has been passed is hereby quashed. The respondents are directed to issue necessary sanction order with respect to the admissible leave salary, if any, due to the petitioner in accordance with law, accordingly.

6. Learned Counsel for the petitioner has submitted that the petitioner has also not been paid his due salary from December 1993 to January, 1999.

7. It is needless to say that the respondent-Corporation shall pay the admissible salary of the petitioner in terms of the scheme decided pursuant to the directive of the apex Court within four weeks of the receipt/ production of a copy of this order.


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