Patna High Court
Awadh Bihari Tiwary vs The State Of Bihar & Ors on 24 April, 2013
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9176 of 1997
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Awadh Bihari Tiwary son of Late Sheo Kumar Tiwary, resident of village Mahuli,
P.S. Ishuapur, District - Saran (Chapra).
.... .... Petitioner
Versus
1. The State of Bihar
2. The Secretary and Commissioner, Human Resources Development
Department, Govt. of Bihar, Patna.
3. The Director, Youth, Art & Culture Deptt. Govt. of Bihar, Patna.
4. The Deputy Director General, N.C.C. Directorate, C.D.A. Building,
Rajendra Path, Patna-1.
5. The Commander, N.C.C. Group H.Qr. Bhagalpur.
6. The Commanding Officer, 35 Bihar Battalion N.C.C., Purnea.
.... .... Respondents
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For the Petitioner : M/s Gyanand Roy and Shanti Pratap, Advocates.
For the Respondents : Mr. (GP5)
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P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN
JUDGMENT
S.N. Hussain, J. This writ petition has been filed by the petitioner
challenging order dated 31.08.1995 (Annexure-2) by which the
Commanding Officer, 35 BN. N.C.C., Purnea (respondent no.6)
inflicted several punishments against the petitioner and also
challenging the appellate order dated 30.04.1997 (Annexure-1) by
which the Deputy Director General, N.C.C., Patna (respondent no.4)
modified the said punishments and punished the petitioner curtailing
two yearly increments with immediate effect. A prayer has also been
made challenging consequential order dated 21.08.1997 by which the
Commanding Officer complied the appellate order withholding two
annual increments with effect from 10.02.1996 and 10.02.1997
Patna High Court CWJC No.9176 of 1997 dt.24-04-2013
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(Annexure-1 series). The petitioner has also prayed for directing the
respondents to make payment of arrears of salary and all
consequential benefits without any further delay.
2. Learned counsel for the petitioner stated that he was
appointed as Lascar vide office order dated 22.01.1992 (Annexure-3)
issued by the Director General, N.C.C., Bihar on compassionate
ground after the death of his father Sheo Kumar Tiwary, who died in
harness as Ex-Lascar. The pay scale of the petitioner was Rs.800-
1150 plus other admissible allowances sanctioned by the State
Government and he was posted at 35 BN., N.C.C., Purnea.
3. Learned counsel for the petitioner submitted that after
joining his duty on 10.02.1992 he throughout discharged his duties
efficiently and honestly to the satisfaction of all concerned and much
subsequently on hearing about his mother's illness at his home at
Mahuli in the district of Saran he sought four days casual leave for
13.03.1995, 14.03.1995, 15.03.1995 and 18.03.1995 as 16.03.1995 and 17.03.1995 were holidays for Holi and 19.03.1995 was Sunday and hence he was to join on 20.03.1995. However, since the ailment of petitioner's mother did not subside, he sent telegram to the Commanding Officer for extension of his leave, but immediately thereafter on 22.03.1995 the petitioner received information about the death of his elder brother, who was working in Assam and hence Patna High Court CWJC No.9176 of 1997 dt.24-04-2013 3 he had to stay further for performing his last rites and hence on 24.03.1995 he sent another telegram for extension of his leave till 14.04.1995 to the Commanding Officer. The petitioner's presence for the last rites of his brother was necessary as he was the only male member left in the family.
4. Learned counsel for the petitioner averred that on 15.04.1995 (Annexure-6) when he reached Purnea to join his duty, the Commanding Officer did not allow him to join and order dated 15.04.1995 was passed placing him under suspension with effect from that date in contemplation of departmental enquiry on the allegation of 33 days unauthorized absence from duty. In the departmental proceeding an enquiry was sought to be held, but neither any subsistence allowance was paid to the petitioner nor any reasonable opportunity was afforded to him to defend himself in the enquiry proceeding. However, no enquiry report was given to the petitioner even by the disciplinary authority, namely the Commanding Officer who passed his impugned order dated 31.08.1995 (Annexure-2) inflicting several punishments upon the petitioner, which are as follows:-
(a) His suspension should be revoked with immediate effect i.e. 26.07.1995.
(b) His absence from 13th March 1995 to 15th April 1995 (33 days) be regularized by granting extraordinary leave.
Patna High Court CWJC No.9176 of 1997 dt.24-04-2013 4
(c) His suspension period also be regularized by granting extraordinary leave and not granting any subsistence allowance due to the violation of rules.
(d) He should forego one year seniority for pension benefits.
(e) Loss of two yearly increments without any further benefit.
5. Learned counsel for the petitioner claimed that although by the said order petitioner was neither removed nor dismissed from service but in spite of that the authorities did not accept the joining report of the petitioner submitted by him on 31.08.1995 (Annexure-9) and he was not allowed to join, which showed the clear case of respondents bias against the petitioner. Hence the petitioner filed an appeal before the Deputy Director General, N.C.C. Directorate and when it was not disposed of within a reasonable time, he moved this court by filing CWJC No.7469 of 1996, which was disposed of vide order dated 01.04.1997 (Annexure-16) with a direction to the appellate authority to dispose of the appeal within a period of two months from the date of production of a copy of the said order. A further direction was given by this court that petitioner should be allowed to join his duty since there was no order of his dismissal or removal from service.
6. Learned counsel for the petitioner asserted that Patna High Court CWJC No.9176 of 1997 dt.24-04-2013 5 thereafter the petitioner presented a copy of the said order of High Court with an application before the Commanding Officer on 07.04.1997 (Annexure-17) and only thereafter he was allowed to join on 08.04.1997. The appellate authority also decided the appeal vide order dated 30.04.1997 (Annexure-1) modifying the punishment given by the disciplinary authority in the following manner:-
(a) His suspension be revoked from 26.07.1995.
(b) His absence period from 13th March 1995 to 15th April 1995 be regularized by granting him leave due to him and the balance by granting extraordinary leave.
(c) His period of suspension be also regularized by granting him leave if due to him and balance by extraordinary leave.
(d) Subsistence Allowance be granted to him for the period of suspension.
(e) He will not forego any seniority for pension benefits related to this case.
(f) Loss of two yearly increments with cumulative effect.
7. Learned counsel for the petitioner argued that the authorities concerned had throughout been biased against the petitioner from the very beginning as after suspension he was not given any subsistence allowance nor he was given proper opportunity to place his case in the enquiry, nor even a copy of the enquiry report was ever served upon him. He further argued that although the service of petitioner was not terminated, but even then he was not Patna High Court CWJC No.9176 of 1997 dt.24-04-2013 6 allowed to join for several years and only due to intervention of this court vide order dated 01.04.1997 he was allowed to join on 08.04.1997 and none of the authorities considered the valid, genuine and proper reasons given by the petitioner for his alleged 33 days absence.
8. On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioner and stated that petitioner did not raise the point in appeal that enquiry report was not served upon him before passing of the impugned order by the disciplinary authority. He further submitted that petitioner himself did not come to join after the impugned order was passed by the disciplinary authority and merely filed an appeal and waited for its result, hence he had absented as per his own free will.
9. Learned counsel for the respondents averred that the petitioner joined as Lascar-I in 1992 on compassionate ground and was a habitual absentee although he had been posted in a disciplined organization, which required strict adherence to regularity and punctuality and hence petitioner's absence in such manner required serious punishment, but the disciplinary authority took a lenient view and did not terminate his service, whereas the appellate authority further minimized his punishment. Hence, learned counsel for the Patna High Court CWJC No.9176 of 1997 dt.24-04-2013 7 respondents argued that petitioner did not deserve any further mercy.
10. Considering the averments made by learned counsel for the parties and the materials on record, it is quite apparent that the ailment of petitioner's mother during the concerned period and the sudden death of his brother which required his presence for religious rites and ceremonies as he was the only male member left in the family, are not in dispute. It is the specific case of petitioner that he had gone on casual leave for 13.03.1995, 14.03.1995, 15.03.1995 and 18.03.1995, whereas 16.03.1995, 17.03.1995 and 19.03.1995 were holidays and hence he had to join his duty on 20.03.1995 but due to continuance of his mother's ailment he had to send telegram for extension of his leave and in the meantime his elder brother also died on 22.03.1995 and hence he had to stay further for performing last rites of his brother for which he sent another communication to the Commanding Officer on 24.03.1995 for extension of his leave till 14.04.1995, whereafter he admittedly came to join on 15.04.1995.
11. Whether the leave prayed by petitioner was granted or not by the authorities is a different matter, but the urgency of the situation clearly showed that his absence after sending communication for leave to the authorities was for genuine reasons and cannot be held to be intentional violation of the Rules without any reason.
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12. From the pleadings of the parties it is also quite apparent that the enquiry report was never served upon the petitioner and the disciplinary authority passed its order punishing the petitioner without sending the enquiry report to the petitioner. This claim of the petitioner is not denied rather a bald excuse is made on behalf of the respondents that the petitioner had not raised this point in appeal. This can hardly justify the illegal act of the authorities and the petitioner was quite justified in raising the point before this court, specially when the respondents have not denied the said fact.
13. In addition to the above fact, it is also admitted that the petitioner was not paid any subsistence allowance during the period of his suspension without any rhyme and reasons. This illegality during the suspension period cannot be justified by subsequently post facto order of the disciplinary authority punishing the petitioner by several punishments one of them being non- payment of subsistence allowance during the period of suspension.
14. So far the joining of petitioner is concerned, the respondents had claimed that the petitioner himself did not come to join after the impugned order of the disciplinary authority dated 31.08.1995 but several annexures to the writ petition clearly showed that the petitioner had repeatedly tried since 1995 to join his post, but he was not allowed to join till 1997 and only when a Bench of this Patna High Court CWJC No.9176 of 1997 dt.24-04-2013 9 court vide order dated 01.04.1997 passed in CWJC No.7469 of 1996 directed the authorities to allow the petitioner to join his service as his services were never terminated.
15. These facts clearly showed the highhandedness and illegal attitude of the respondents and their bias against the petitioner from the very beginning so much so that they went on to punish the petitioner without holding a proper enquiry and without serving a copy of the enquiry report to the petitioner to enable him to defend himself and even after passing the impugned order, they did not allow the petitioner to join his service although there was no such punishment of dismissal from service given to the petitioner.
16. In the said circumstances, this court is left with no option but to quash the impugned orders of the authorities dated 31.08.1995 (Annexure-2), 30.04.1997 (Annexure-1) and 21.08.1997 (Annexure-1 series). Accordingly, this writ petition is allowed, the aforesaid impugned orders of the authorities concerned are quashed and the respondents authorities, specially the Commanding Officer is directed to treat the petitioner as in continuous service from 13.03.1995 treating his 33 days absence from 13.03.1995 till 15.04.1995 as sanctioned leave and also to treat his service from the said date till the date of his joining on 08.04.1997 on the orders of this court as continuous without any break in service and to give him Patna High Court CWJC No.9176 of 1997 dt.24-04-2013 10 all arrears of salary for the aforesaid period as well as all consequential benefits of service. The respondents authorities must calculate the said benefits properly and accurately without any bias against the petitioner and pay the same to him within three months from the date of receipt/production of a copy of this order. Patna High Court Dated 24th April, 2013 (S.N. Hussain, J) Harish/-