IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.1614 of 2009
SANDHYA KUMARI, W/O SHRI PRAKASH KUMAR, C/O BINAY
KUMAR, SAVITRI NIWAS, HOUSE NO. 12, IST FLOOR, KAVI
RAMAN PATH, EAST BORING ROAD, PATNA ........................
..................................................... PETITIONER / APPELLANT
Versus
1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, OLD
SECREARIAT, PATNA
2. THE PRINCIPAL SECRETARY, SOCIAL WELFARE
DEPARTMENT, GOVERNMENT OF BIHAR, OLD SECRETARIAT,
PATNA
3. THE DEPUTY SECRETARY, SOCIAL WELFARE DEPARTMENT,
GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA
4. THE DIRECTOR, I.C.D.S. DIRECTORATE, INDIRA BHAWAN,
RAM CHARITRA PATH, NEAR HARTALI CHOWK, PATNA
5. THE DISTRICT MAGISTRATE, GAYA
6. THE ADDITIONAL DISTRICT MAGISTRATE-CUM-CONDUCTING
OFFICER, GAYA
7. THE SUB DIVISIONAL MAGISTRATE, SHERGHATI, GAYA
8. THE DISTRICT PROGRAMME OFFICER, GAYA-CUM-THE
PRESENTING OFFICER ..... RESPONDENTS / RESPONDENTS
with
LPA No. 1615 of 2009
1. SANDHYA KUMARI, W/O SHRI PRAKASH KUMAR, C/O BINAY
KUMAR SAVITRI NIWAS, HOUSE NO. 12, 1ST FLOOR,
KAVIRAMAN PATH, EAST BORING ROAD, PATNA
..................................................... PETITIONER / APPELLANT
Versus
1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, OLD
SECRETARIAT, PATNA
2. THE PRINCIPAL SECRETARY, SOCIAL WELFARE
DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA
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3. THE DEPUTY SECRETARY, SOCIAL WELFARE DEPRTMENT,
GOVT. OF BIHAR, OLD SECRETARIAT, PATNA
4. THE DIRECTOR, I.C.D.S. DIRECTORATE, INDIRA BHAWAN,
RAM CHARITRA PATH, NEW HARTALI CHOWK, PATNA
5. THE DISTRICT MAGISTRATE, GAYA,
6. THE ADDITIONAL DISTRICT MAGISTRATE-CUM-CONDUCTING
OFFICER, GAYA
7. THE DISTRICT PROGRAMME OFFICER, GAYA-CUM-THE
PRESENTING OFFICER,
8. THE SUPERINTENDENT OF POLICE, VIGILANCE
INVESTIGATION BUREAU, DEPARTMENT OF VIGILANCE, GOVT.
OF BIHAR, PATNA
9. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE
INVESTIGATION BUREAU, DEPARTMENT OF VIGILANCE, GOVT.
OF BIHAR, PATNA ................ RESPONDENTS / RESPONDENTS.
with
LPA No. 582 of 2010
1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, OLD
SECRETARIAT, PATNA
2. THE PRINCIPAL SECRETARY, SOCIAL WELFARE
DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA
3. THE DEPUTY SECRETARY, SOCIAL WELFARE DEPARTMENT,
GOVT. OF BIHAR, OLD SECRETARIAT, PATNA
4. THE DIRECTOR, I.C.D.S. DIRECTORATE, INDIRA BHAWAN,
RAM CHARITRA PATH, NEAR HARILAL CHOWK, PATNA
5. THE DISTRICT MAGISTRATE, GAYA
6. THE ADDL. DISTRICT MAGISTRATE - CUM - CONDUCTING
OFFICER, GAYA
7. THE DISTRICT PROGRAMME OFFICER, GAYA - CUM - THE
PRESENTING OFFICER ............................... APPELLANTS
Versus
1. SANDHYA KUMARI, W/O SRI PRAKAS, C/O BINAY KUMAR,
SAVITRI NIWAS HOUSE NO. 12, IST FLOOR, KAVI RAMAN PATH,
EAST BORING ROAD, PATNA ......... RESPONDENT - PETITIONER
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2. THE SUPERINTENDENT OF POLICE, VIGILANCE
INVESTIGATION BUREAU, DEPARTMENT OF VIGILANCE, GOVT.
OF BIHAR, PATNA
3. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE
INVESTIGATION BUREAU, DEPARTMENT OF VIGILANCE, GOVT.
OF BIHAR, PATNA ................ RESPONDENTS / RESPONDENTS.
-----------
(In L.P.As. No. 1614/09 & 1615/09)
For the Appellant : Mr. Purushootam Kumar Jha and
Mr. Sanjay Kumar, Advocates.
For the Respondents: Mr. Siddhartha Prasad, AC to AAG-9,
Mr. Bijay Kumar Pandey,AC to GP-18.
(In L.P.A. No. 582/2010)
For the Appellants: Mr. Bijay Kumar Pandey,
AC to G.P.-18.
For the Respondents: Mr. Purushootam Kumar Jha and
Mr. Sanjay Kumar, Advocates.
———–
5. 29.06.2010. These three appeals, preferred under Clause
10 of the Letters Patent arise from the common judgment
and order dated 12.11.2009 passed by the learned single
Judge in CWJC Nos. 14323/2009 and 14407/2009.
2. L.P.A. Nos. 1614/09 & 1615/09 have been
preferred by the writ petitioner in so far as the learned
single judge has refused to quash the disciplinary
proceeding initiated against her and has refused to quash
the order of suspension made against her.
3. L.P.A. No. 582/2010 has been preferred by the
State in so far as the State is directed to pay subsistence
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allowance to the writ petitioner for the entire period she
has been placed under suspension irrespective of the fact
that she has not remained present at the Headquarters
and that she has not marked her attendance in the
attendance register.
4. By order dated 13.01.2009 the writ petitioner,
a Child Development Project Officer, has been placed
under suspension. During the period of suspension, her
Headquarters is kept at Patna. A disciplinary proceeding
has been initiated against the writ petitioner for the
alleged acts of commission and omission amounting to
misconduct. It is alleged that she made selection of
Anganbari Sevikas in contravention of the Departmental
Guidelines No. 2783 dated 03.10.2006. Pending the
disciplinary proceeding the writ petitioner did not remain
present at the Headquarters nor did she mark her
attendance. The writ petitioner was, therefore, not paid
the subsistence allowance otherwise payable to her.
5. Feeling aggrieved she filed the above CWJC
No. 14407 of 2009 and prayed, inter alia, that the order
of suspension and the charge sheet dated 13.01.2009
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issued against her be quashed. She alleged malafide
against some top ranking politicians and the Members of
the Special Committee of the Bihar Vidhan Sabha. She
also filed the above CWJC No. 14323 of 2009
challenging the supplementary memorandum of charge
dated 05.02.2009.
6. The writ petitions were contested by the State
Government. According to the State Government, unless
the writ petitioner reported at the Headquarters and
marked her attendance, she would not be entitled to
subsistence allowance.
7. The learned single Judge was pleased to allow
the writ petition partially. The learned single judge was
pleased to rely upon the judgment of the Hon’ble
Supreme Court in the matter of Anwarun Nisa Khatoon
v. State of Bihar & Ors. [(2002) 6 SCC 703] to hold
that “there is no requirement for a suspended
employee to mark attendance before his subsistence
allowance could be paid. A suspended employee is
entitled to be paid his subsistence allowance as the
master servant relationship subsists.”
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8. Following the judgment, the learned single
Judge was pleased to direct the State Government to pay
to the writ petitioner the arrears of subsistence allowance
with interest @ 5%. The learned single Judge was further
pleased to direct the State Government to hold enquiry,
fix administrative responsibility for non-fulfillment of
statutory obligations and recover the amount of interest
from the person concerned including issue of initiation of
departmental proceedings against him. The learned
single Judge, however, refused to quash the disciplinary
proceeding or the order of suspension made against the
writ petitioner.
9. Feeling aggrieved the writ petitioner has
preferred the above L.P.A. Nos. 1614/2009 and
1615/2009 and the State Government has preferred
L.P.A. No. 582/2010.
10. Mr. Purushottam Kumar Jha, learned Advocate
has appeared for the writ petitioner. He has assailed the
judgment of the learned single Judge in so far as the
learned single Judge has refused to quash the disciplinary
proceeding or to revoke the order of suspension. Mr. Jha
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has taken us through the record. He has strenuously
urged that the disciplinary proceeding has been initiated
against the writ petitioner on account of interference by
some political person. The initiation of disciplinary
proceeding is actuated by mala fide. He has also
submitted that the initiation of the disciplinary
proceeding is uncalled for. The charges levelled against
the writ petitioner are false and baseless. None of the
selections alleged to have been made by the writ
petitioner was, in fact, made by her. The proceeding
requires to be quashed and set aside. He has submitted
that no Gazetted Officer of the State has ever marked
his/her attendance in the attendance register nor the writ
petitioner, who is the Child Development Project
Officer, is required to sign her attendance.
11. L.P.A. No. 582 of 2010 has been preferred
belatedly by the State in so far as the learned single
Judge has directed the State Government to pay
subsistence allowance to the writ petitioner for the entire
period of her suspension from service.
12. Interlocutory Application No. 2915/2010
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under Section 5 of the Limitation Act has been filed by
the State for condonation of 41 days’ delay occurred in
preferring L.P.A. No. 582/2010. For the reasons
mentioned in the Application, the delay in preferring the
Appeal by the State is condoned. I.A. No. 2915/2010
stands allowed.
13. Mr. P.K. Shahi, learned Advocate General
has appeared for the State. He has relied upon proviso
(iii) to sub-rule (1) of Rule 10 of the Bihar Government
Servants (Classification, Control & Appeal) Rules, 2005.
He has submitted that the said proviso specifically
provides “that the government servant shall be
entitled to receive subsistence allowance only for such
period when he is actually present at the
Headquarters during the suspension period. He is
required to mark his attendance in the attendance
register meant for such government servant.” In the
submission of Mr. Shahi, on the face of the statutory rule
of 2005, the above referred judgment of the Hon’ble
Supreme Court has no applicability.
14. We agree with Mr. Shahi. The Hon’ble
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Supreme Court had no occasion to consider the Rules of
2005. In view of the prevalent rules to the contrary,
earlier judgment of the Hon’ble Supreme Court has no
applicability.
15. It is not in dispute that neither the writ
petitioner remained present at the Headquarters during
the period of suspension nor did she mark her
attendance. We are of the opinion that in view of the
specific statutory rule that governs the conditions of
service of the delinquent employee, the writ petitioner
was duty bound to remain present at the Headquarters
and to mark her attendance in the attendance register.
Indisputably, the writ petitioner did not remain present at
the Headquarters, nor did she mark her attendance. The
above proviso to Rule 10(1) of the Rules of 2005 is clear
and unambiguous. It does enjoin the delinquent servant
placed under suspension to remain present at the
Headquarters and to mark the attendance. It is a pre-
requisite to claim subsistence allowance during the
period of suspension. In our opinion, the State
Government was justified in refusing to pay subsistence
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allowance to the writ petitioner. The learned single Judge
has erred in overlooking the aforesaid statutory provision
and in following the earlier decision of the Hon’ble
Supreme Court. The order of the learned single Judge in
so far as the State is directed to pay subsistence
allowance to the writ petitioner irrespective of her
absence from the Headquarters requires to be set aside.
16. As to the disciplinary proceeding, we are of
the opinion that it is too early to stall the disciplinary
proceeding or to set aside the charges levelled against the
writ petitioner. It may be noted that though the writ
petitioner has alleged mala fide against certain persons in
the State Government, such persons have not been
impleaded as party respondents. In absence of the
parties against whom the malafides are alleged, the
allegations of mala fide cannot be entertained. The
disciplinary proceeding must proceed further to its
logical end. It is clarified that in the event the writ
petitioner is found guilty and is visited with some
punishment, she may challenge the order of punishment
and will be at liberty to raise all available grounds
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including the ground of mala fides.
17. The order of the learned single Judge refusing
to quash the disciplinary proceeding is confirmed.
18. In so far as the order of suspension is
concerned, we are of the opinion that the allegations
made against the writ petitioner are not such which
warrant continuance of the order of suspension. The
allegation is that the writ petitioner made selection of
Anganbari Sevikas contrary to the relevant guidelines.
The selection of Anganbari Sevika is not a matter of
recurrence. We are, therefore, of the opinion that
continued suspension of the writ petitioner pending the
disciplinary proceeding is not required.
19. For the reasons aforesaid, we partially allow
L.P.A. No. 1614 of 2009. The order of suspension dated
13.01.2009 is revoked. The writ petitioner will be
reinstated in service within three weeks from today.
L.P.A. No. 1615/2009 is dismissed.
20. The impugned order dated 12.11.2009 of the
learned single Judge in so far as the State Government
has been directed to pay subsistence allowance to the
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writ petitioner for the period she did not remain present
at the Headquarters and she did not mark her attendance
is quashed and set aside. The writ petitioner will not be
entitled to subsistence allowance for the period during
which she did not remain present at the Headquarters or
she did not mark her attendance. Accordingly, L.P.A.
No. 582/2010 is allowed.
21. It is clarified that this order shall not preclude
the writ petitioner from challenging the order of
punishment or from claiming the salary for the period of
suspension at the end of the disciplinary proceeding.
22. The Interlocutory Applications filed by the
appellant are accordingly disposed of.
( R.M. Doshit, CJ )
( Shiva Kirti Singh, J )
Dilip