JUDGMENT :

P.B. BAJANTHRI, J.

1. Heard learned counsels for the parties.

2. In the instant petition, petitioner has prayed for following reliefs:

“(i) The order of petitioner dismissal from the post of Revenue Karamchari by the Collector, Bettiah, West Champaran in being order contained in memo no. 150 dated 05.03.2919 be quashed.

(ii) The order passed in Appeal by the Commissioner, Tirhut Division, Muzaffarpur in Service Appeal No. 91 of 2019 dated 20.09.2019 by which the order of the Collector, dismissing the petitioner from service has been approved, be also quashed.

(iii) The necessary direction be issued to reinstate the petitioner on his post from where he was dismissed with back wages with all consequential benefits.

(iv) The necessary cost be awarded, for the harassment caused of the petitioner.

(v) Any other relief/reliefs also be guaranteed, which this Hon’ble Court may seems fit and proper.

(vi) It is further prayed that during the pendency of the present application the operation of the order passed by the Collector approved by the Commissioner be stayed.”

3. Petitioner while working as Revenue Karamchari under the Collectorate of Bettiah, West Champaran was subjected to disciplinary proceedings and concluded in imposition of penalty of dismissal from service on 05.03.2019.

4. Feeling aggrieved and dissatisfied with the order of disciplinary authority, petitioner preferred an appeal bearing Appeal No. 91 of 2019 before the Commissioner, Tirhut Division, Muzaffarpur which was dismissed on 20.09.2019 in affirming the disciplinary authority’s order. Hence, the present petition.

5. Brief facts of the case is that petitioner was subjected to disciplinary proceedings by framing Article of charges. The enquiry officer submitted report on 25.10.2013 by holding charges levelled against the petitioner were proved. Thereafter formalities like issuance of show-cause notice and receipt of reply and further imposition of penalty on 05.03.2019 and its confirmation by the Appellate authority.

6. Perusal of the charge-memo it is crystal clear that there is non-compliance of Sub-Rule 4 of Rule 17 of Bihar Government Servants (Classification, Control and Appeal) Rules, 2005.

7. Learned counsel for Respondent-State could not resist the aforesaid contention with reference to the records.

8. Perusal of the records it is evident that there is non-compliance of Sub-Rule 4 of Rule 17 of Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. On this legal issue, impugned orders dated 05.03.2019 and 20.09.2019 are set aside.

9. The disciplinary authority is hereby directed to commence enquiry from the defective stage and complete the proceedings within a period of six months from the date of receipt of this order.

10. Disciplinary authority is hereby directed to take decision in respect of re-instatement or suspension in the light of Apex Court’s decision rendered in the case of Managing Director, ECIL vs. B. Karunakar, (1993) 4 SCC 727 read with Chairman-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142, Para 46 to 50 reads as under:

“46. In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment or arrears of salary till date. Shri Bandhopadhyay, learned Senior Counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of “no work-no pay.” The delinquent had been practising privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by th