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2019 Supreme(Pat) 666
IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, S. KUMAR, MOHIT KUMAR SHAH, JJ.
Amarendra Arya, son of late Prabha Shanker - Appellant
Versus
The State of Bihar – Respondent
Letters Patent Appeal No.1469 of 1995
Decided on : 25-09-2019
Advocate Appeared:
For the Appellant : In person
For the State :Mr. S.D. Yadav, Mr. Rajeshwar Singh, Mr. Mrigank Mauli, Mr. Prince Kumar Mishra, Mr. Snaket, Advocate
Headnote:
Bihar Service Code, 1952 – Rule 97(3) – Bihar Pension Rules, 1950 – Rules 43(b)(c), 99 and 100 – Rule 54 of Fundamental Rules – Suspension – Entitlement to full pay and allowances for period of suspension – Even after superannuation of a Government employee, Government will have a jurisdiction to examine entitlement of full salary for period of suspension – In a situation when Government servant is suspended, pending enquiry into his conduct, is reinstated, but with forfeiture of any part of his allowances for period of suspension, this period would not be counted, save and except with special sanction of head of department – Unless authority who reinstates Government servant expressly declares, suspension period shall be counted – Competent authority has inherent power and jurisdiction to deal with situation in what manner period of suspension would be treated in terms of break in service or will be treated as spent on duty, consequently, it has power to decide entitlement of full salary taking aid of principles mentioned in Rule 97 of Bihar Service Code – Even after superannuation, in what manner period of suspension will be considered, power lies within domain of competent authority as per guidelines of Rule 97 of the Bihar Service Code – Proceeding after superannuation, with respect to entitlement of full salary, is akin to proceeding of Rule 97 of Bihar Service Code, is not a penalty proceeding, but nevertheless is penal in nature, requires notice or show-cause, whereupon competent authority would decide entitlement of full salary, after considering explanation filed by delinquent Government servant. (Paras 32, 35, 36 and 61)
Service Law – Suspension – Competent authority is empowered to exercise jurisdiction with regard to entitlement of full salary during period of suspension for those who have already superannuated from service, but while considering claim, principle mentioned in Rule 97 of Bihar Service Code will be invoked – If in departmental proceeding, Government servant has been fully exonerated, he will be entitled to full pay and allowances for period of suspension – In case departmental proceeding has been initiated but, could not be concluded or was dropped or in any manner does not come to its finality, delinquent Government employee cannot be deprived of his full pay and allowances on account of non-completion of enquiry proceeding or non-submission of enquiry report – If departmental proceeding has been rendered infructuous and not converted under Rule 43(b) of Bihar Pension Rules and no inquiry report has been submitted, in that circumstances, retired Government servant will be entitled to entire salary – If departmental proceeding has been initiated, enquiry proceeding has been concluded and in case any substantive order has been passed after superannuation, which cannot be upheld on account of cession of relationship of master and servant, competent authority is empowered to take a decision on principle of Rule 97(3) read with Rule 97(5) of Bihar Service Code – If Government servant has been prosecuted departmentally and order of punishment has been passed while in service and he has filed appeal but by that time he superannuates and appeal is remanded back on technical ground, in that circumstance, Rule-97 (3) read with Sub-rule (5) will play an important factor for entitlement of full salary during period of suspension. (Para 65)
Rules of High Court at Patna, 1916 – Clause-28 of Letters Patent – A Full Bench shall be a Bench of any number not less than three Judges – Clause-28 of Letters Patent of Patna High Court talks about majority of opinion in terms of Judges who have heard case including those who first heard the matter earlier, but does not talk of final judgment – Full Bench is constituted by number of judges sitting and hearing, in a proceeding, it cannot be conceived idea to split up the Bench – May be as per Clause-28 of Letters Patent of Patna High Court view of majority of Judges will govern field but in the event it is heard by third Judge, it will not be treated to be judgment of three Judges Bench unless it is constituted in terms of Clause-12 of Chapter-II of Patna High Court Rules. (Paras 39 and 40)
Judicial Discipline – Reference to Larger Bench – In event of difference of opinion between members of Division Bench, Division Bench will record its difference of opinion and on discretion of Chief Justice matter will be referred to third Judge, either Single or Division Bench and third Judge will confine his opinion on point which has been referred and will not embark on point or points not referred – But in a situation if third Judge gives an opinion apart from point referred, when matter again goes to Division Bench for final pronouncement, majority of opinion will be basis for judgment on point which was referred – However, when a single issue or several issues have been raised and on few issues Division Bench agreed and on certain issues they have differed, that issues on which there is difference, will be referred to third Judge and third Judge would give his opinion on point referred, but will not have a jurisdiction to finally pronounce judgment between parties, but referee Judge has only to record his opinion and remit back same to Division Bench and Division Bench will formally declare majority opinion and then Division Bench will not start a de novo hearing on issue which has already been concluded – Majority opinion is to be culled out and final verdict could be pronounced, as it will be a matter of declaration of final verdict, but if on any point, apart from reference, referee Judge gives his opinion on such point, parties will have a liberty to address Division Bench on new point which was not subject matter of consideration and Division Bench will decide new point and give final decision on that point. (Paras 60 and 65)
Administrative Law – Administrative Decisions – Scope of Judicial Review – Basic principle of interference is that Court would interfere with action if same suffers from perversity, patent illegality, irrationality, want of power to take decision and procedural irregularity – If any act is based on some materials, it cannot be said to be perverse or warrant interference in exercise of extraordinary power of High Court under judicial review – A decision is vitiated and irrational if decision is so outrageous that it is in defiance of all logic – If person acting reasonably, has taken a possible decision having regard to material available on record, decision cannot be said to be irrational – When decision apparently suffers from apparent error of law on face of decision which goes to root of decision or error is so apparent, Court will interfere with order in exercise of power under judicial review – Judicial review would be exercised not against decision, but decision making process, of course a patent illegality, perversity and irrationality which goes to root of matter, may vitiate decision making process itself. (Para 61)
Cases Referred:
Dr. Lakshmi Narain Singh vs. State of Bihar, 1989 BBCJ 147; M. Gopalkrishna Naidu vs. State of M. P., AIR 1968 SC 240; H.L. Mehra vs. Union of India, (1974) 4 SCC 396; Kirti Bhusan Singh vs. State of Bihar, (1986) 3 SCC 675; Union of India vs. Raj Bahadur, 2016 SCC Online Del. 4460; Union of India vs. S.K. Gupta decide in W.P. (C) no.11860 of 2015; Babu Ram Pramanick vs. Assistant Security Commissioner, R.P.F. S.E. Railway Santragachhi at Shalimar, 2003 SCC OnLine Cal 693 : (2003) 6 SLR 177; Bijoy Gopal Sur vs. State of West Bengal, 1961 SCC OnLine Cal 107; Secretary of State vs. Surendra Nath Goswami, AIR 1938 Calcutta 759; Bhagirathi Jena vs. Board of Directors, O.S.F.C., (1999)3 SCC 666; Sharda Singh vs. State of Uttar Pradesh, (2009) 11 SCC 683; Balvantray Ratilal Patel vs. State of Maharashtra, (1968) 2 SCR 577 : AIR 1968 SC 800; Anant Pandey vs. State of Jharkhand, 2003 (3) JCR 776 Jhr.; P.C. Puri vs. Commissioner of Income Tax, New Delhi, ILR (Delhi) 134; Vasant Ganu Patil of Thane vs. University of Mumbai, 2014 SCC OnLine Bom. 1855 : (2015) 1 AIR Mom R 576; Firm Ladhuram Rameshwardayal vs. Krishi Upaj Mandi Samiti Shivpuri, 1977 SCC OnLine MP 33 – Referred.
State of Jharkhand vs. Amresh Narayan Sinha, 2019(3) PLJR 329 (SC); The Royal Calcutta Turf Club through its Acting Secretary Mr. D. J. Leckle vs. Kishan Chand Manchanda, AIR 1943 Lah. 84; Shivani Properties Private Limited vs. United Bank of India, CALLT - 2014, volume-3, 465; Shriram Industrial Enterprises Ltd. vs. Union of India, 1995 SCC OnLine ALL 647 : AIR 1996 All 135; Shekhar Narayan Shetty vs. Madhavlal Pittie, 2015 (4) Mh. L.J. 687; State of Bihar vs. Ram Ballabh Das Jalan, AIR 1960 Patna 400; Smt. Jayanti Devi vs. Srichand Mal Agrawal, 1984 PLJR 852; Sarvepalli Ramaiah (Died) as per LRs vs. District Collector, Chittoor District, AIR 2019 S.C. 1706; Heinz India Private Ltd. vs. State of Uttar Pradesh, (2012) 5 SCC 442 – Relied.
JUDGMENT :
SHIVAJI PANDEY, J.
We have heard Mr. Amrendra Arya, in person, who is the son of late Smt. Vidya Sinha-original petitioner, Mr. Mrigank Mauli, Amicus Curiae, assisted by Mr. Prince Kumar Mishra and Mr. Sanket, learned Advocates and Mr. S.D. Yadav, learned Additional Advocate General-9 assisted by Mr. Rajeshwar Singh, G.A.-10, on behalf of the State.
2. This case has been referred before this Full Bench in view of the order dated 24.07.1996, though in this order no term of reference has been mentioned, but the order reflects that the Division Bench was of the view that where a Government servant, against whom a departmental proceeding has been initiated, is entitled to full pay and allowances during the period of his suspension, if he is ultimately exonerated. If that be so, without concluding a departmental proceeding, it would be arbitrary to deprive him of his full pay and allowances during the period of suspension under Rule 97(3) of the Bihar Service Code. If the disciplinary proceeding is rendered infructuous by reason of the fact that the concerned Government servant superannuates from the service, the order of suspension must also go and the Government servant concerned will be entitled to full pay and allowances for the period during which he was placed under suspension. So, the order is summarized in three parts, are as follows:-
(i) If a departmental proceeding has been initiated against a Government servant and if he is ultimately exonerated, he will be entitled to full pay and allowances during the period of suspension.
(ii) If the departmental proceeding initiated against the Government Servant is not concluded, it would be arbitrary to deprive him of his full pay and allowances during the period of suspension under Rule 97(3) of the Bihar Service Code.
(iii) If the disciplinary proceedings are rendered infructuous by reason of the fact that the concerned Government servant superannuated from the service, the order of suspension must also go and the Government servant concerned will be entitled to full pay and allowances for the period during which he was placed under suspension.
3. Before adverting to answer the proposed questions framed hereinabove, it will be proper to concisely deal with the facts of the present case. As the facts are taken from the original writ petition, so everywhere, she will be addressed as original writ petitioner.
4. The original writ petitioner had joined the services of the State of Bihar on 14.02.1956, thereafter she was promoted on different posts and finally superannuated on 30.11.1994 from the post of Superintendent, Beggars Home, Patna. She was made in-charge of Remand Home, Patna, along with Superintendent, Beggars Home, Patna. During inspection, it was found that the Remand Home was in very bad and dilapidated condition, as she was not authorized to make repair and incur the expenditure, on that account she started writing letters for repairing of Chapakal, electricity etc. in the Remand Home. Some boys had fled away from the Remand Home and the cumulative effect led to putting the original writ petitioner under suspension vide order dated 25.08.1993, inasmuch as the original writ petitioner was put to departmental proceeding, the headquarter was fixed at Chotanagpur at Ranchi. The original writ petitioner challenged the order of suspension in C.W.J.C. No.10657 of 1993, the same was disposed of vide order dated 24.01.1994, without interference but, with a direction that the departmental proceeding be concluded within a period of three months from the date of receipt of the copy of the order and if the departmental proceeding is not concluded within the aforesaid period, the order of suspension passed against the petitioner would stand revoked. It was further directed that the petitioner shall render all cooperation in the smooth conduct of the departmental proceeding, failing which the same may be heard and disposed of ex parte. As the departmental proceeding could not be c
