NAZIMUDDIN Vs. STATE OF BIHAR & ORS.

JUDGEMENT

(1.) The challenge of the petitioner is to the order dated 01.09.2015 passed by the Water Resources Department, whereby and whereunder the petitioner has been found entitled to grant of 1st A.C.P. with effect from 02.02.2002 and as far as the 2nd A.C.P. is concerned, it has been stated that the scheme of A.C.P. has been cancelled and instead M.A.C.P. Scheme has been implemented, hence the petitioner is not entitled to the benefits of 2nd A.C.P. In the impugned order dated 01.09.2015, it has been indicated that since by an order dated 17.02.1999, punishment of withholding of two increments with noncumulative effect has been inflicted on the petitioner herein, 1st A.C.P. is admissible to the petitioner only after the effect of the said punishment order comes to an end i.e. with effect from 02.02.2002.

(2.) The learned counsel for the petitioner, at the outset, has referred to an order dated 25.07.2014 passed in CWJC No. 8236 of 2013, i.e. in the case of the petitioner himself, relevant paragraphs whereof are reproduced hereinbelow:-

(3.) Thus in nutshell, the contention of the learned counsel for the petitioner is that this Court by the aforesaid judgment dated 25.07.2014, had come to the finding that the petitioner was entitled to be granted the benefit of 1st A.C.P. with effect from 09.08.1999 and the second A.C.P. with effect from 02.02.2003 and the respondents had at that moment of time admitted before this Court that only one departmental proceeding had been initiated by an order dated 23.10.2008, as against the petitioner herein and other persons i.e. the Assistant Engineer and the Executive Engineer, however, the said two other persons have been granted promotion by an order dated 09.6.2008 and 21.05.2009 respectively but the case of the petitioner has been treated differently and moreover this Court has already come to a finding that as on the two dates i.e. 09.08.1999 and 02.02.2003, the dates on which the petitioner had become eligible for being granted the benefit of 1st A.C.P. and 2nd A.C.P., no proceeding was pending as against the petitioner herein, hence he was entitled to be granted the benefits of 1st and 2nd A.C.P. Therefore, the case of the petitioner is that the impugned order dated 01.09.2015 has been passed in teeth of the judgment of this Court dated 25.07.2014 passed in CWJC No. 8236 of 2013, which amounts to overreaching the orders of this Court and calls for initiation of contempt proceedings against the official who has passed the impugned order dated 01.09.2015. It is further the submission of the learned counsel for the petitioner that the ground being now taken by the respondents in denying the benefits of the 1st A.C.P. and 2nd A.C.P., i.e. the order dated 17.02.1999 by which punishment of withholding of two increments with noncumulative effect has been inflicted upon the petitioner herein, is nonest in the eyes of law inasmuch as firstly the said order has neither been issued to the petitioner herein nor communicated to the petitioner herein, much less having been made effective which is clear from the fact that no increment of the petitioner was ever withheld during his entire career. It is further submitted that even the respondents have failed to produce any proof of communicating the order of punishment dated 17.02.1999 to the petitioner herein and in fact upon the petitioner having sought information under the R.T.I. from the respondents, a letter dated 04.06.2014 was sent by the Additional Secretary, Establishment (Management), Water Resources Department, Government of Bihar stating that the benefits of A.C.P. has been granted on account of pendency of a departmental proceeding which was initiated on 15.09.2008. Lastly, it has been submitted that the law is very clear on the subject matter as has been held in a catena of cases, one of them being a landmark Judgment reported in 1963 AIR 395 (Bachhittar Singh v. The State of Punjab) (SC) , to contend that unless and until an order is communicated to a person who would be adversely affected by that order, neither the State nor the said person will be bound by such order. It is equally a trite law that non-communication of an adverse remark / punishment cannot be used against the incumbent to deny him the benefits to which he would have been entitled otherwise.