Back
PATNA HIGH COURT
Asok Kumar Ganguly, J.
Mohd.Mahmudul Hasan
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 7735 of 1996 ;
Decided On : OCTOBER 3, 1997
JURISDICTION - CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1930 - RULE 55-A - PUNISHMENT - UNAUTHORISED ABSENCE - CONSIDERATION OF REPRESENTATION - JURISDICTION OF AUTHORITY - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
The petitioner, an employee of the State Government, was punished with censure and withholding of salary for unauthorized absence from 22-4-1995 to 9-5-1995. The petitioner challenged the order on the grounds that Rule 55-A of the Civil Services (Classification, Control and Appeal) Rules, 1930, under which the punishment was imposed, had been omitted from the statute book and that the impugned order was not passed in accordance with the said Rule.
Finding of the Court:
The Court held that Rule 55-A of the 1930 Rules was still in existence and that the impugned order was passed without jurisdiction as the authority concerned did not consider the representation made by the petitioner and the finding in the impugned order was outside the scope of enquiry initiated by the show cause notice.
Issues: 1. Whether Rule 55-A of the Civil Services (Classification, Control and Appeal) Rules, 1930, had been omitted from the statute book? 2. Whether the impugned order was passed in accordance with Rule 55-A of the said Rules? 3. Whether the writ petition was maintainable without filing an appeal against the impugned order?
Ratio Decidendi: 1. The Court held that Rule 55-A of the 1930 Rules was still in existence as the said Rules were continuing so far as the employees of the State of Bihar were concerned and the amendment to which the attention of the Court was drawn was confined to the employees of the State of Uttar Pradesh. 2. The Court held that the impugned order was passed without jurisdiction as the authority concerned did not consider the representation made by the petitioner and the finding in the impugned order was outside the scope of enquiry initiated by the show cause notice. 3. The Court held that the writ petition was maintainable without filing an appeal against the impugned order as the decision impugned was founded on alien grounds and, as such, it was inoperative being without jurisdiction.
Final Decision: The Court allowed the writ petition and quashed the impugned order, but it did not prevent the respondents authorities from proceeding in accordance with law in respect of any allegation touching the petitioner.
A. K. Ganguly, J.
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 petitioners 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 petitioners 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.
4. Learned Counsel for the respondents has also submitted that the impugned order of punishment passed against the petitioner is an appealable one and since the petitioner has not filed any appeal under Rule 56 of the said Rules, this writ petition is not maintainable.
5. This Court proposes to deal with the aforesaid contentions one after another. In so far as the first contention is concerned, it appears that the said 1930 Rules have been accepted by the state of Bihar by issuing a notification under Article 309 of the Constitution of india and it has been stated that the said Rules will apply mutatis mutandis to the classes of Government servants under the State Government and this will apply in respect of Class I and Class ii employees of the said State Government. The said notification has been issued on 3rd July, 1963 to be effective from 22nd December, 1956. Therefore, as a result of the said notification, the aforesaid Rules which were framed in 1930 are continuing. As the Court directed the learned Counsel for the respondents to
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
