LAKSHMI NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) On a difference of opinion between Mr. Justice H.L.Agrawal (as he then was) and Mr. Justice M. P. Varma, on one of the questions involved in the present writ application, the case has been referred to me. The petitioner retired from State service on 31-3-1979 as a Civil Assistant Surgeon. A disciplinary proceeding was started against him many years back and he was put under suspension, and was allowed to draw subsistence allowance under Rule 96 of the Bihar Service Code. The proceeding had a chequered history. After the petitioner filed his show cause he was served with another show cause notice with reference to a second proceeding in regard to the same charges. On receipt of the enquiry report, the State Government by Annexure-22, found the petitioner guilty and imposed on him the punishment of "one censor, stoppage of three increments, his absence from duty for about a year and 10 months' to be treated as break in service with consequential financial loss and four adverse entries in the service book". Thereafter another notice (Annexure-23) was served on the petitioner mentioning, besides the earlier allegations, a fresh charge and asking him to show cause as to why he should not be discharged from service. The petitioner replied. Some further queries were made from the petitioner and the matter, thus, remained in correspondence for a considerable period and no final order was passed. Subsequently a fresh notice starting a separate departmental proceeding was issued but this proceeding also remained in a dormant state. The petitioner was to superannuate from service by the end of March 1979 and in February 1979, probably realising that fresh proceeding which had been initiated could not be concluded before his retirement, his suspension was withdrawn by the order in Annexure-27 and he was told that a decision regarding the payment of his salary etc. for the period of suspension would be taken later after final examination of the matter. The petitioner, thus, joined on 28-3-1979 and retired three days later. He claimed, inter alia, his full salary for the period of suspension in C. W. J. C 63 of 1980, which was disposed of by a direction to the State authorities to consider and pass appropriate orders on the representation of the petitioners which had been filed in this regard in the department. Ultimately, the order as contained in Annexure-34 was made on 21-1-1981 stating that the petitioner was guilty of disobedience of the orders passed by the State, and the State was, therefore, taking a decision to re-impose on him the punishment mentioned in Annexure-22. It was also said that the petitioner would not be entitled to any additional payment beyond the subsistence allowance which he had already drawn, and for the period be was under suspension, he will be treated to have been in continuous service only for the purpose of pension.

(2.) By the present writ petition the petitioner originally claimed his salary etc. and by a subsequent petition he also challenged the order in Annexure-34. The case was heard by a Division Bench of which Mr. Justice H. L. Agrawal (as he then was) and Mr. Justice M. P. Varma were members. Mr. Justice Agrawal has held that in view of the rules included in the Bihar Service Code the Government had no jurisdiction to continue the departmental proceeding after the retirement of the petitioner and the portion of the impugned order in Annexure-34 imposing the punishment, therefore, was fit to be quashed. Mr. Justice Varma agreed with this view and I am not called upon to examine this part of the decision. On the question as to whether the petitioner was, in the circumstances, entitled to claim his full salary for the period of suspension, the learned Judges took divergent views. Interpreting Rule 97 of the Bihar Service Code Mr. Justice Agrawal held that as a general rule a Government servant cannot be held to be entitled to his full pay, in every case a disciplinary proceeding ultimately ends without imposing punishment on him. Referring to the circumstances, briefly, he further held that the petitioner was not entitled to any relief on this account. Mr. Justice Varma held that the discretion to refuse payment of full salary to the Government servant can be exercised only in a case which is covered by sub-rule (3) of Rule 97 and since the present case cannot be held to be governed by the said sub-rule, the petitioner's claim to the salary cannot be legitimately refused.

(3.) Mr. K. D. Chatterjee, appearing in support of the writ application, contended that the decision in case of Shri B. D Gupta v. State of Haryana, AIR 1972 SC 2472, is fully applicable to the present case. Dr. Sada Nand Jha followed Mr. Chatterjee and emphasised the right to foe heard on the basis of a Division Bench decision of this Court dated 18-10-1979 in C. W. J. C. 1896 of 1976 (Dr. Kapildeo Narain Tiwary v. State). He further argued that no proceeding can be started against a Government servant after his retirement in view of the observations in B. J. Shelat v. State of Gujarat and Others, AIR 1978 SC, 1109. Proceeding further, it was urged that an enquiry under Rule 97 (3) is also in the nature of a disciplinary proceeding and, therefore, cannot be commenced or continued after retirement. When the salary of a servant is refused to be paid, it results in pecuniary loss and must, therefore, be held to be penal in nature. The learned counsel alternatively said that the matter should not be remanded for further consideration by the State authorities and this Court should, in view of the circumstances of the case, hold in favour of the petitioner that as a result of the quashing of the order of punishment imposed by Annexure-34, the petitioner has to be paid his full salary for the entire period.