VIJAY KUMAR TIWARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by petitioner of C.W.J.C. No. 4371 of 2004 (Vijay Kumar Tiwari versus The State of Bihar and Ors), and raises grievance with respect to the order dated 6.1.2006, whereby the writ petition has been dismissed, and the order of the respondent authorities to the effect that the petitioner shall be deprived of his salary except the subsistence allowance for the period of suspension, has been upheld.

(2.) A brief statement of facts essential for the disposal of the appeal may be indicated. The petitioner was, at therelevant point of time, functioning as Forest Ranger at BhimBandh. He was placed under suspension by order dated10.06.1999 (Annexure-1), and was subjected to a departmentalproceeding. The following charges were framed against him: ...[VERNACULAR TEXT OMITTED]... The petitioner participated in the departmental proceedings. Thelearned inquiry officer submitted his report dated 19.9.2000,whereby he was substantially exonerated of the charges. Thelearned disciplinary authority disagreed with the inquiry report,and inflicted punishments on the petitioner by his order dated19.4.2001. The petitioner challenged the same by preferringC.W.J.C. No. 14310 of 2002, which was allowed by order dated8.7.2003 (Annexure-9), whereby the order of punishment was setaside, and the learned disciplinary authority was given liberty toproceed afresh from the stage ahead of submission of the inquiryreport. In other words, the learned Single Judge held that, if thelearned disciplinary authority intended to disagree with thefindings of the learned inquiry officer, he was required to recordreasons in support of the disagreement which had to becommunicated to the delinquent employee to enable him to showcause. The petitioner in the meanwhile retired from the services of the Bihar Government w.e.f. 31.1.2003. The learneddisciplinary authority issued show-cause notice dated 30.9.2003(Annexure-10), wherein he indicated his reasons fordisagreement with the findings recorded by the learned InquiryOfficer, calling upon the petitioner to show cause as to why thepunishments indicated therein be not inflicted on him. Theproposed punishments are indicated as follows: ...[VERNACULAR TEXT OMITTED]... The petitioner had shown cause on a consideration of which thelearned disciplinary authority passed the impugned order dated5.1.2004 (Annexure-12), whereby the proposed punishment hasbeen scaled down, and is stated that the petitioner shall not beentitled to his salary beyond subsistence allowance for the periodof suspension.

(3.) IT is evident on a plain reading of the show-cause noticedated 30.9.2003, that the reasons for disagreement as well as thefindings of the learned Single Judge set out hereinabove, thepetitioner has not been fully exonerated. IT was, therefore, opento the learned disciplinary authority to inflict an appropriatepunishment on him. Two-fold punishments proposed to beinflicted on him were indicated in the show-cause notice dated30.9.2003. IT appears to us that the learned disciplinary authoritytook a lenient view of the matter, and inflicted on him smallerpunishment by way of deprivation of salary for the period ofsuspension except the subsistence allowance. Once it is held thatthe petitioner was not wholly exonerated within the meaning ofsub-rule (2) of Rule 97 of the Bihar Service Code, it goes withoutsaying that no show-cause notice was needed, and deprivationcan be ordered in terms of Rule 97. Part or whole of the salary forthe period of suspension beyond subsistence allowance for theperiod of suspension can be ordered for after show cause noticeonly if the delinquent employee were fully exonerated. Thelearned disciplinary authority indeed took a lenient approach, and 7 treated the period of suspension valid for purpose of pension andpost-retirement benefits. In fact, show-cause notice was issued tothe petitioner on 30.9.2003. Law is well settled that the Court canalways grant a smaller relief contained in the larger relief thoughnot specifically prayed for, Similarly, in the present situation, it isopen to the learned disciplinary authority to inflict a smallerpunishment if bigger punishment(s) were proposed. We,therefore, do not find fault with the impugned order.