MOHD MAHMUDUL HASAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The subject matter of challenge in this writ petition is an order of punishment dated 25-6-1996 passed by the Deputy Secretary, Water Resources (Irrigation) Department, Government of Bihar, Patna. By the said order two punishments have been imposed upon the petitioner. The first one is of censure for the year 1995-96 and the second one is one of with-holding of salary for the period of unauthorised absence, namely, from 22-4-1995 to 9-5-1995. Prior to the passing of the said order, a show cause notice was served upon the petitioner. The said show cause notice is dated 4-5-1995 at Annexure-7 By the said show cause notice dated 4-5-1995 it was stated that the petitioner proceeded on leave on verbal permission on 22-4-1995 and was not present in a particular meeting on 25-4 1995 held in Patna and the petitioner was absent from 22-4-1995 till 4-5-1995 An explanation was called for from him why a report be not submitted to take disciplinary action against the petitioner Pursuant to the said show cause notice, the petitioner gave a reply and in the reply the petitioner gave various reasons for remaining absent from the office from 22-4- 1995 to 4-5-1995 and the mam ground is that his son was suffering from jaundice and the petitioner found that there was chance of the said disease relapsing and that there was evidence that the disease of the petitioner's son was aggravating the petitioner also submitted several other documents to show that the petitioner was present on 6-5-1995 at the Headquarter i e at Motihari and the petitioner has also annexed a document dated 15-6-1995 issued by the Superintending Engineer, Motihari whereby it has been stated that the petitioner's reply may be sympathetically considered.

(2.) In the counter-affidavit filed by the respondents, it has been stated that after issuing the show cause notice against the petitioner, action was taken against him by passing the impugned order under Rule 55-A of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the said Rules). It further states that the petitioner was absent in an unauthorised manner and there is nothing wrong in the impugned order of punishment imposed upon the petitioner.

(3.) Learned Counsel for the petitioner has raised two principal contentions. The first contention is that Rule 55-A of the said Rules has been omitted from the statute book and has been substituted by Rule 55-B of the said Rules as would appear from the notification No. 7/1/77 dated 27-4-1977. Therefore, on the date when the impugned order was passed, Rule 55-A of the said Rules was not existing and thus the impugned order is wholly bad and illegal in the eye of law. The second contention is, assuming that Rule 55-A of the said Rules was there, even then the impugned order which has been passed is not in accordance with Rule. 55-A of the said Rules and thus the same should be quashed.