Judgment:
ORDER
Ajit Kumar Sinha, J.
1. The present writ petition has been preferred for the following reliefs:
(1) For issuance of an appropriate writ in the nature of certiorari to quash Resolution No. 2790 dated 2.11.1999 issued under the signature of the Joint Secretary, Bihar State Electricity Board, Patna, respondent No. 5, as contained in Annexure-10 to this writ application, whereby and whereunder, respondent No. 5 was pleased to award punishments in the following manner:
(a) The petitioner is 'Censured' which will be entered into his A.C.R. for 1998-1999;
(b) The petitioner will not be posted in supply sub-division/supply division for two years;
(c) The petitioner will not get anything beyond subsistence allowances during the suspension period. This period will be counted as on duty for post retirement benefits.
The aforesaid punishments have been awarded in the light of the Resolution No. 2233 dated 20.8.1999, as contained in Annexure-9 of this writ application;
(2) For issuance of an appropriate writ in the nature of certiorari to quash letter No. 111/CAS-DP-3010/99 dated 11.7.2002 issued under the signature of the Joint Secretary, Bihar State Electricity Board, Patna, respondent No. 5, as contained in Annexure-14 to this writ application, whereby and whereunder, respondent No. 5 was pleased to reject the representation filed by the petitioner for payment of salary during the period of suspension;
(3) For issuance of an appropriate writ in the nature of mandamus directing and commanding upon the respondents to make payment of salary of suspension period i.e. from 15.7.1998 to 5.8.1999;
(4) For issuance of an appropriate writ in the nature of mandamus directing and commanding upon the concerned respondents to pay salary @ Rs. 12,150/- per month in place of Rs. 11,850/- after pay fixation with effect from 1.1.1996 as per Notification No. 275/276 dated 24.10.2000;
(5) For issuance of an appropriate writ in the nature of mandamus directing and commanding upon the respondents to give annual increment of the year 1999 and second time beyond promotion and its consequential benefits since January, 2000 for which the petitioner is legally entitled for;
(6) For issuance of an appropriate writ in the nature of mandamus directing and commanding upon the respondents to fix the pension and gratuity on the revised pay scale and further to make differences of arrears of pension and gratuity, for which the petitioner is legally entitled for.
2. The facts in brief are set out as under:
The petitioner was appointed as Junior Electrical Engineer on 22.6.1964 and was later promoted to the post of Assistant Electrical Engineer in the year 1989 and was confirmed on the said post in the year 1992. According to the learned Counsel for the petitioner he had proceeded on leave which was sanctioned on 4.7.1998 for the period between 5.7.1998 to 11.7.1998 as the petitioner was unwell and had to go for medical checkup for which he had duly filed an application and earlier he had also filed a representation on 26.6.1998 for transfer to an urban area where he could get the medical facilities regularly in view of his being a chronic diabetic and also suffering from Asthama. The petitioner received a Memo No. 3038 on 15.7.1998 issued by the Joint Secretary vide which he was put under suspension for his willful absence and negligence of duty and the petitioner was allowed to draw subsistence allowance during the suspension period.
The petitioner went to give his joining at Chalbasa as per office order Memo No. 3038 dated 15.7.1998 on 18.7.1998. However, on receiving the order of suspension he preferred a representation on 28.7.1998 to the Secretary, Bihar State Electricity Board for revoking the suspension on the ground that his leave was duly sanctioned by the competent authority. However, a charge-sheet was issued on 12.8.1998 for gross negligence of duty and disobedience of Board's order and the petitioner was asked to submit his written statement to the concerned enquiry officer since a departmental proceeding was initiated. The petitioner gave his written statement before the enquiry officer stating that the leave was duly sanctioned and also furnished the medical certificates. Pursuant to examination and cross-examination of witnesses of both sides and also considering the written arguments, the enquiry officer submitted the enquiry report on 20.5.1999 exonerating the petitioner of all the charges. The disciplinary authority revoked the suspension and proposed to award punishment as indicated in paragraph-I, i.e. censure and non-payment of anything beyond subsistence allowance during the period of suspension.
The petitioner was also served with a second show-cause notice to which a reply was filed on 30.8.1999 and the punishment was confirmed vide Resolution No. 2080 dated 2.11.1999 with certain modifications in the punishment No. 2 vide Resolution No. 2233 dated 20.8.1999.
The petitioner thereafter filed a representation before the Chairman challenging the punishment imposed. In the meanwhile the petitioner retired from service on 31.1.2002 and he also received retirement benefits except those which has been claimed in the present writ petition. Even the representation filed by the petitioner was rejected vide order dated 11.7.2002 and accordingly the present writ petition has been filed when no reply was given to several representations filed by the petitioner.
3. The main contention raised by the learned Counsel for the petitioner is as to whether the concerned respondent had the power or jurisdiction to deny the arrears of salary and the payment of the difference of the amount during the period of suspension and/or pass the punishment order in view of the fact the petitioner was admittedly on sanctioned leave granted by the competent authority.
It has also been contended that the denial to give second time bound promotion and also not to give increment as per the revised pay-scale to which the petitioner was legally entitled to is arbitrary and illegal.
4. The respondents in the counter-affidavit have submitted that even though the petitioner was exonerated of all the charges by the enquiry officer, however, he was found guilty by the disciplinary authority for which a second show-cause was given and thus the prayer for quashing the order of suspension dated 2.11.1999 was not maintainable and liable to be rejected.
The respondents in their counter affidavit have specifically stated that the petitioner managed to produce the second C.L. application from Sri Surendra Prasad, A.E.E., Mohania who was the controlling authority and they admit that in the enquiry report submitted on 20.5.1999 by Sri Kapilesh Prasad the charges as levelled against the petitioner could not be established and the Enquiry Officer exonerated] the petitioner of all the charges.
The respondent with regard to claim of increment w.e.f. 1999 have stated that since he was under suspension w.e.f. 15.7.1998 till 5.8.1999 his next date of increment as per rule fall on 23.1.2000 which has been allowed to him. However, he does not qualify for increment during suspension.
5. I have considered the arguments and the submission including the pleadings of both the sides. In the instant case the petitioner was exonerated of all the charges in the enquiry report but the same was reversed by the disciplinary authority and the following punishment was proposed.
(i) He should be 'Censured';
(ii) He will not be posted in supply sub-division for two years;
(iii) He will not get anything beyond subsistence allowance during the period of suspension. However, this period would be counted as on duty for post retirement benefits.
6. In the instant case it will be evident that even the punishment imposed by the disciplinary authority is disproportionate without any basis and there is a total non-application of mind for the sole reason that the petitioner was initially on sanctioned leave from 5.7.1998 to 11.7.1998 and thereafter he extended it for 4 days more for which he had produced the medical certificates also.
7. The disciplinary authority has not even assigned reasons and grounds for differing with the detail and reasoned enquiry report given by the enquiry officer exonerating the petitioner of all the charges. Considering the aforesaid facts and circumstance of the case, this writ petition is allowed and the impugned order dated 2.11.1999 is set aside and the respondents are directed to give all the consequential benefits to the petitioner.