@JUDGMENTTAG-ORDER
Aftab Alain, J.@mdashThe same Petitioner has filed these two writ petitions, seeking different reliefs in this same set of facts and circumstances. These two petitions were, therefore, heard together and are being disposed of by this common order.
2. The relevant facts, in brief, can be stated thus. In 1978-79 while the Petitioner was posted as Executive Engineer in Saran Canal Division, Gandak Project, he gave work orders for an aggregate sum of about Rs. 10 lacs. The work orders were given on nomination basis and without inviting tenders. According to the Petitioner the total amount was spread over 90 work order each of which was for a sum under Rs. 25,000/-, that it was within his competence to give work order for a sum not exceeding Rs. 25,000/- without inviting tenders and fur ther that the works in question were of emergency nature and the facts and cir cumtances in each case justified the is suance of the work order by-passing the lengthy procedure of inviting tenders etc. He was, however, put under suspension by order, dated 14.8.1982 in contemplation of a disciplinary proceeding on the charges of insubordination and abuse of his official position and further that his action in making allotment of 90 pieces of work on the basis of nomination was in tended to cause financial loss to the Government and financial gain to himself and the contractors.
3. As little or no progress was made in the disciplinary proceeding while the Petitioner remained under suspension, he came to this Court in CWJC No. 2769/1985. That writ petition was disposed of by a bench of this Court by order, dated 6.8.95. the following direction in that order is relevant for the present:
It is agreed that a copy of the departmental proceeding along with the copy of charges will be served on Mr. Kanth representing the Petitioner in couse of the day to expedite the matter. Cause, if any, must be shown within three weeks. On the assumption of the compliance of the formalities, we direct that the departmental proceeding be concluded as expeditiously as possible, but not beyond three months from the date of the filing of the show cause. The Petitioner is directed to extend full cooperation in the proceeding and any time lost on account of any delay tactics by him would be added to the period of three months. It is further directed that if the proceeding is not concluded as stipulated above, the im pugned order of suspension will stand revoked. (emphasais added)
4. As directed, charge sheet was given to the Petitioner on the date, the aforesaid order was passed. He submitted his reply to the charge sheet on 16.9.1985. A departmental enquiry was held to investigate into the charges and the enquiry officer submitted his report on 29.10.1985, i.e. well within the period of three months fixed by the High Court for the conclusion of the proceeding. Admittedly, however, no final order was passed in the disciplinary proceeding till 15.12.1985 on which date the three months'' period from the date of submission of the Petitioner''s reply to the charge sheet came to an end. Therefore, by virtue of the High Court''s order as quoted, above, the Petitioner would be deemed to have been releaseo from suspension w.e.f. 16.12.1985 though no order, revoking suspension was passed by the departmental authorities.
5. An order was finally passed in the departmental proceeding against the Petitioner on 8.6.1988. By this order the disciplinary authority denied to release the Petitioner from suspension from the date of the order and besides giving him the punishments of censure, to be recorded in the character roll for the year 1978-79, and withholding of two annual increments with cumulative effect, gave the direction that for the period of suspension the Petitioner would not be entitled to anything beyond the subsistence allowance. Here, without going into the punishments awarded to the Petitioner, it has to be pointed out that the direction to release the Petitioner from suspension from the date of the order was painly in teeth of the direction given by this Court by virtue of which his suspension came to an end w.e.f. 16.12.85 on the failure of the departmental authorities to conclude the proceeding by 15.12.1985. Similarly, the direction with-holding the entire salary of the Petitioner for the period of suspension was untenable as it was passed without giving the Petitioner any notice or opportunity to show cause (See 1988 P.L.J.R. 82 and (1997) 2 S.C.C. 374).
6. The Petitioner filed an appeal against his order of punishments on 16.9.88 and when no order was passed on his appeal for more than four years, he again came to this Court in C.W.J.C. No. 12877/1992 seeking various reliefs concerning his promotion(s) and grant of higher scales of pay. That writ petition was disposed of by order, dated 16.12.1992. At that stage this Court did not intervene in the matter but disposed of that writ petition with a direction to the appellate authority to dispose of the Petitioner''s appeal by 31.12.1992 and further direction to the concerned authority to pass an order on the Petitioner''s representation in connection with his promotion etc. by the same date.
7. Even a direction from this Court does not seem to have moved the departmental authorities and no order was passed on his appeal by 31.12.1992 when the Petitioner attained the age of superannuation and retired from service. The Petitioner was finally informed by letter, dated 10.3.95 issued by the Dy. Secretary to the Government that his appeal against his order of punishments dated 8.6.88 was rejected by the State Government after due consideration.
8. As regards the Petitioner''s claim for grant of higher scales of pay and promotions to higher posts it may be noted that, apart from the departmental proceeding a criminal case being Chapra Town P.S. Case No. 110/1983 was also instituted on the same allegations in which the Petitioner was made accused of offences punishable under Sections 409 and 420 of the Penal Code. In the criminal case the Petitioner was convicted and sentenced by order, dated 30.5.94 passed by a learned Judicial Magistrate in Trial No. 577/1994. Against the judgment passed by the learned Magistrate, the Petitioner preferred Cr. Appeal No. 102/1994 before the learned Sessions Judge, Saran, Chapra.
9. Having regard to the Petitioner''s conviction by the trial court and the pendency of his appeal before the appellate court the departmental authorities maintained that the Petitioner''s case'' for promotion(s) could be considered only after the final disposal of his appeal and the Petitioner was accordingly informed by letter, dated 10.4.95 issued by the Joint Secretary to the Government. One cannot find any fault with the stand taken by the Government on the question of the Petitioner''s promotion. Finally the learned Sessions Judge by judgment and order dated 22.11.1994 allowed the Petitioner''s appeal and set aside the judgment and order of conviction passed by the trial court. The Petitioner thereafter re-agitated his claim for promotions during his tenure of service.
10. The Government then issued notitication No 31.14, dated 11.6.96. By this notification the Petitioner, on the recommendations of the Bihar Public Ser vice Commission and the Departmental Promotions Committee was granted promotions in the following manner:
(a) From 1.4.80 in feg selection grade of the pay scale of Executive Engineer.
(b) From 19.11.84, "paper promotion" on the post of Superintending Engineer in the pay scale of Rs. 4300-5550/-.
(c) From 1.8.92, "paper promotion" on the post of Chief Engineer in the pay scale of Rs. 5100-6300/-.
11. The notification further stated that as the Petitioner had retired from service on the post of Executive Engineer, no concurrence was required from the Finance Department so far as promotion at serial (a) was concerned. However, in so far as material benefits accruing from promotions at serial (b) and (c) were con cerned, the same would be payable subject to the concurrence of the. Finance Department.
11 A. The Petitioner then made representations before the departmental authorities for allowing him the material benefits on the basis of promotions given to the posts of Superintending Engineer and Chief Engineer but getting no response he filed one of these two writ petitions being CWJC No. 873/1997, challenging the notification dated 11.6.96 in so far it denied him the material benefits accruing from his promotions to the posts of Superintending Engineer and Chief Engineer.
12. It may be noted that though the question of payment of salary etc. to the Petitioner on the basis of his promotions to the posts of Superintending Engineer and Chief Engineer was left open in the notification, dated 11.6.1996 subject to the concurrence of the Finance Department, from the counter affidavit filed in this case on behalf of Respondents 1 and 2, it appears that now it was finally decided not to allow any material benefits to the Petitioner on the basis of the promotions in question. It is stated in para 11 of the counter affidavit that the Finance Department did not agree on the matter of admissibility of wages with retrospective effect, on the ground that the Petitioner did not hold the promoted post of Superintending Engineer and Chief Engineer during his tenure of service in the Department in terms of rules contained in Annexure ''A'' of this affidavit."
13. It was perhaps provoked by the Government''s denial even to pay him the salary etc. on the basis of promotions allowed to him that the Petitioner filed another writ petition being CWJC No. 10342/1997 seeking to challenge the order of his punishment dated 8.6.1988 and the order passed by the appellate authority on 10.5.95 rejecting his appeal against the punishment order. This writ petition was filed on 11.11.97, that is to say, after more than nine years from the date of the punishment order and about 2 1/2 years after the dismissal of the appeal.
14. In these two writ petitions, the Petitioner seeks the following reliefs:
(i) The setting aside of the punishments of censure and withholding of two annual increments with cumulative effect given to him in the disciplinary proceeding initiated under resolution, dated 20.7.84.
(ii) A direction to pay him full salary for the period of his suspension from 14.8.82 to 15.12.1985.
(iii) A direction to pay him full salary for the period from 16.12.1985 from which date, the Petitioner was released from suspension, in any event, by virtue of the directions given by this Court in CWJC No. 27,69/1985.
(iv) A direction to pay him full salary, allowances and other material benefits on the basis of the retrospective promotions given to him by notification dated 11.6.1996.
15. The first two reliefs are claimed in the latter writ petition being CWJC No. 10342/1997 and the remaining two reliefs in the former writ petition being CWJC No. 873/1997.
16. Mr. Sudhir Kumar Katriar, learned Counsel for the Petitioner assailed the order of punishments passed against the Petitioner on the plea that though he was completely exonerated in the departmental enquiry report, the disciplinary authority neither assigned any reason for dis-agreeing with the enquiry report nor gave the Petitioner a show cause notice indicating that he proposed to take a different view and giving the reasons for his dis-agreement with the enquiry report. Mr. Katriar submitted that for. this reason alone the order of punishment was untenable. I am unable to agree with Mr. Katriar on the basic premise that the enquiry report exonerated the Petitioner fully and completely and, in my view, therefore, the points raised by him does not arise in the facts and circumstances of this case.
17. As regards the payment of full salary for the period of suspension, although I have held earlier in this judgment that the direction given in the impugned order, dated 18.6.1988 not to pay anything to the Petitioner beyond subsistence allowance for the period of suspension could be passed only after giving him a notice to show cause, I am not inclined to interfere in that regard at this belated stage. It may be noted that even if that direction is to be set aside, the matter will have to be remitted to the competent authority to pass a fresh order after giving notice to the Petitioner. I see no justification for taking that course ten years after the passing of the direction. It has been noted that the impugned notification was issued on 8.6.88. The Petitioner preferred an appeal on 16.9.88. From the pleadings it does not appear that besides assailing the punishments given to him he also questioned the direction for withholding his pay for the period of suspension. Even assuming that such an objection was taken in the appeal, CWJC No. 10342/1997 was filed about 2 1/2 years after the Petitioner''s appeal was dismissed on 10.5.1995 and there is absolutely no explanation for this delay.
18. For all these reasons, I am not inclined to entertain the reliefs claimed in CWJC No. 10342/1997.
19. In so far as the remaining two-reliefs are concerned as claimed in CWJC No. 873/1997, the Petitioner is on far more stronger grounds. It is seen above that by virtue of this Court''s order dated 6.8.85 passed in CWJC No. 2769/85, the Petitioner would be deemed to have been released from suspension w.e.f. 6.12.1985 and the failure of the departmental authorities to pass an order revoking the suspension would not alter the position in any manner. The Petitioner would, therefore, be fully entitled to receive his fully salary and other allowances for the period from 16.12.1985 to release him from suspension.
20. In so far as the claim for payment of salary, allowances and other benefits accruing from his promotions to the posts of Superintending Engineer and Chief Engineer are concerned, that also has to be allowed. It is well settled that a Government employee being granted promotion with a retrospective date cannot be denied material benefits accruing from the promotion on the plea that he did not work on that post from'' the retrospective date. If any authority is needed one may see the decision in the case of
21. It is accordingly found and held that the Petitioner is entitled to his full salary from the period 16.12.1985 to 8.6.1988. The Petitioner is further entitled to payment of his. salary, allowances and other material benefits in the post of Superintending Engineer w.e.f. 19.11.1984 and in the post of Chief Engineer w.e.f. 1.8.1992. His retiral benefits will also be re-determined accordingly. All due payments to the Petitioner in the light of this order must be made within two months from the date of receipt/production of a copy of this order.
22. In the result, CWJC No. 873/1997 is allowed while CWJC No. 10342/1997 is dismissed. There will be no order as to costs.
