YUGAL KISHORE PD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the State.

(2.) PETITIONER has questioned the validity of the order bearing Memo No. 7824 dated 31.8.1996, Annexure 14 and the appellate order dated 1.7.1999 bearing Memo No. 2317 dated 5th July, 1999, Annexure 15, whereunder punishments imposed after conclusion of the departmental proceedings were affirmed in appeal.

(3.) BEFORE I consider the prayer of the counsel for the petitioner, it is necessary to mention a few facts. Petitioner, who earlier served as Cooperative Supervisor in the office of Assistant Registrar, Cooperative Societies, Jehanabad circle, was transferred to the office of the Divisional Joint Registrar, Tirhut Division under order bearing Memo No. 5110. dated 3.4.1979, Annexure 1. Under orders bearing Memo No. 50 dated 2.2.1980, Annexure 2 petitioner was relieved to join the office of Divisional Joint Registrar, Tirhut Division on or before 5.2.1980. Petitioner instead of joining the office of Joint Registrar filed application dated 5.2.1980, Annexure 3 for grant of leave and it appears without the grant of leave he remained absent from his place of posting in the office of Divisional Joint Registrar, Tirhut Division, Muzaffarpur. After being away from his place of posting, he submitted his joining in the office of Divisional Joint Registrar, Tirhut Division on 30.4.91 vide joining report, Annexure 5. The joining submitted by the petitioner on 30.4.91, Annexure 5 was not accepted and the matter remained pending until the Registrar, Co -operative Societies passed order bearing Memo No. 131 dated 1.6.1995, Annexure 10 whereunder a proceeding was initiated against the petitioner for his absence from his place of posting for the period between 6.2.1980 and 29.4.1991. In compliance of the aforesaid order, a formal proceeding was drawn and charges were framed and served on the petitioner under order bearing Memo No. 4612 dated 13.7.1995, Annexure 11. Perusal of the said order indicates that the petitioner was called upon to file his written defence to the charges framed against him before the Enquiry Officer. It appears, petitioner appeared before the Enquiry Officer and filed his written defence, indicating that during the period between 6.2.1980 and 29.4.1991 he could not join the place of posting as he was ill during that period. in support of his plea petitioner relied on prescription and other documents received from the attending doctors. The Enquiry Officer examined the explanation submitted by the petitioner with reference to the charges framed against him and submitted his enquiry report which was also served on the petitioner under Memo bearing no. 4980 dated 19.6.1996, Annexure 12. Perusal of the report, however, indicates that the charge framed against the petitioner was partially proved as the enquiry officer found that the prescription and other documents furnished by the petitioner in support of the plea of his illness appears to be genuine. Having received the enquiry report the petitioner submitted his second show cause reply which is dated 5.7.96 and is contained in Annexure 13. It appears that the second show cause reply was thereafter considered by the Registrar, Cooperative Societies who passed the impugned order bearing Memo No. 7824 dated 31st August, 1996, Annexure 14 whereunder he imposed three punishments, namely, the period of absence between 5.2.1980 and 29.4.1991 shall not be treated on duty as also shall not be counted even for the purposes of perision. The other punishment which was imposed was that period between 30.4.1991 and 31.5.95 during which period petitioners joining was not accepted shall be treated as a period of deemed suspension and he shall only be paid subsistence allowance during that period. The impugned orders have been passed after completing the necessary formalities which is required to be gone into before imposing the punishment on a government servant, as such in my opinion learned counsel for the petitioner has rightly not challenged the punishment nos. 1. and 3 and has confined the writ petition towards the correctness of punishment no. 2. In my opinion punishment no. 2 appears to be wholly without jurisdiction as authorities having not accepted the joining of the petitioner submitted on 30.4.91 until 31.5.95 are not empowered to deprive the petitioner of his salary for the said period. It is for their delayed action that the joining of the petitioner remained pending during the period between 30.4.91 and 31.5.95, Had the joining been accepted on 30.4.91 and petttioner placed under suspension with effect from that date, the authorities would have been well within their powers to pay him subsistence allowance for the aforesaid period; but having not passed orders on his request to permit him to join the post on 30.4.91, while passing the final orders in the proceedings, the authorities are not empowered to hold that during the period joining of the petitioner was not accepted Shall be a period of deemed suspension and he should be deprived of the full salary for the said period. By not taking a decision on the request of the petitioner contained in representation dated 30.4.91, Annexure 5 the authorities delayed the action of initiating the departmental proceeding as also placing the petitioner under suspension and as such for the period between 30.4.1991 to 31.5.1995 authorities should pay the petitioner his full salary and in this view of the matter, punishment no. 2 is quashed with direction to the Respondents to pay the full salary to the petitioner for the period between 30.4.91 till 31.5.95 after deducting the subsistence allowance already paid for the said period. The payment in terms of this order should be made within a period of three months from the date of receipt/production of a copy of this order.