SHASHI BHUSHAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Challenge in this writ petition filed under Articles 226 and 227 of the Constitution of India has been made to an order dated 23.03.2011 (Annexure 15) passed by the respondent competent authority imposing punishment of debarring the petitioner from promotion and preventing and denying enhancement of pay-scale for a period of three years with effect from 18.04.2007 and further confirming the period of suspension and directing that nothing shall be paid to the petitioner for the period of suspension except the subsistence allowance already granted to him.

(2.) The petitioner was appointed as a Cutter in the Central Jail at Buxar initially in the year 1973. He was thereafter transferred to Bhagalpur Central Jail and subsequently, at the relevant time, when the cause of action for taking the impugned action arose, he was working in Shahid Khudiram Bose Central Jail at Muzaffarpur. Pending conduct of a departmental proceeding against him the petitioner was suspended on 18.03.2002. It was alleged against him that he had committed defalcation of 229 meters of cloth and manipulated the date of birth in his service book and thereby committed the acts of misconduct. His suspension was revoked on 31.08.2004 and a charge memorandum was issued to him on 05.10.2002. He was directed to file a showcause which he did on 23.10.2002 by denying the charges. Thereafter, in accordance with the requirement of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as "2005 Rules"), a Conducting Officer was appointed and a departmental enquiry was conducted in the matter. The departmental enquiry was culminated in the findings recorded by the Enquiry Officer holding him guilty of the charges levelled and after issuing the second show-cause notice, punishment was awarded on 18.04.2007, by which the petitioner was debarred from promotion, enhancement of salary was stopped and the period of suspension was confirmed and he was also imposed with a punishment of break in service and recovery of Rs.29,235/-. An appeal filed by the petitioner was rejected by the appellate authority, namely, the Principal Secretary, Special Home Department, Government of Bihar, Patna, on 18.04.2007, and thereafter the matter came to this Court at the instance of the petitioner in CWJC No. 17758 of 2009, whereby the orders of the disciplinary authority and the appellate authority were challenged. The writ petition was decided by a Single Judge of this Court on 08.03.2010 vide Annexure-12 and the learned Writ Court found that the departmental proceedings are vitiated on account of violation of the principles of natural justice even the appellate authority has not decided the appeal properly and being satisfied that the appellate order as a composite order, the matter was remanded back to the appellate authority after quashing the order of punishment.

(3.) This order was challenged by the State Government in LPA No. 1031 of 2010 and vide Annexure-13 on 27.09.2010, a Division Bench of this Court found that the order passed by the learned Writ Court holding that the original punishment order merged with the appellate order and once the appellate order is quashed, the original punishment no more exists, is not correct. It held that if the learned Writ Court was of the opinion that the appellate authority exceeded in exercising its jurisdiction, the appellate order should have been set aside and the matter remanded back to the appellate authority. The order of the learned Writ Court quashing the order of punishment dated 18th April, 2007 reviving the order of appellate authority was quashed and the matter remanded the appellate authority vide Annexure-14 having again rejected the appeal on 01.03.2011 and a review application filed was also being dismissed vide Annexure-15 on 23.03.2011, this writ petition has been filed.