Hari Narayan Singh vs The State Of Bihar & Ors.

Heard the learned counsel for the parties.

The present writ petition has been filed for the following reliefs:-

During pendency of the writ petition, an Interlocutory Application bearing I.A. No.8563 of 2014 was filed for an amendment in the prayer portion of the writ petition. Vide order dated 28.07.2025, an Hon’ble Single Judge of this Court was pleased to allow the Interlocutory Application bearing I.A. No.8563 of 2014. The prayer made in paragraph no.1 was directed to be added to the relief portion of the main writ petition. The same is reproduced herein below:-

The brief facts, which are necessary for adjudication of the present writ petition are that the petitioner was appointed as a Junior Engineer (Mechanical) in the Public Health Engineering Department, Government of Bihar, Patna on 28.02.1979. Thereafter, he was posted in the Mechanical Circle Office, P.H.E.D., Patna as an Estimator in the year 1982-1983, on which post he continued till December 1992. On account of some personal dispute the petitioner was sent to judicial custody on 26.04.1993 and was subsequently released on 23.05.1993. He gave his joining on 24.05.1993, however, he was told to wait, since the Executive Engineer asked for directions/guidelines from the higher authorities. In the meantime the petitioner was transferred to Motipur on 23.12.1993, but was not relieved, therefore, he could not join at the transferred place of posting. It is the case of the petitioner that although, he was continuously discharging his duties, but he was not paid his salary from December 1992. An explanation was sought for from the petitioner on 12.10.1993, wherein the copy of the bail order was also asked to be submitted by him. The petitioner submitted his explanation along with the bail order and he informed the authorities that he is not being permitted to give his joining and his joining is not being accepted by the authorities for the reason best known to them. A show cause notice was again issued to the petitioner on 21.11.1996, with regard to his unauthorized absence and vide letter dated 24.07.1996, the petitioner was asked about the details of the criminal case pending against him bearing criminal case no.109(C) of 1992. The petitioner submitted his reply on 28.10.1996. Since the petitioner was not giving his joining, he was put under suspension vide memo no.239 dated 06.03.1997 on account of criminal case pending against him and for his unauthorized absence. It is further case of the petitioner that during the period under suspension, although, he was regularly present at his work place and was ready to perform his duties, however, the authorities were not permitting him to join. A departmental proceeding was also initiated against him and he kept on requesting the Enquiry Officer to conduct the enquiry, but the Enquiry Officer, to the best of the knowledge of the petitioner, never conducted any enquiry and finally the petitioner superannuated from service on 30.11.2000, while he was still under suspension. It is further case of the petitioner that although he received a registered letter contained in Memo no.792 dated 15.02.1997 for presenting himself before the Enquiry Officer and to give his explanation, however, whenever the petitioner went to the office and requested the Enquiry Officer about the proceeding, he came to know that the same has not been conducted. A paper publication was done with regard to non-cooperation of the petitioner in the enquiry, to which the petitioner duly replied vide his letter dated 20.12.1999. Finally, the petitioner came to know that although, he superannuated way back in November 2000, however, the order of punishment contained in memo no.382 dated 05.10.2005 was passed, whereby the petitioner was inflicted with a punishment of non-payment of any salary for the period he remained in custody, except for the subsistence allowance. It was further ordered that for payment of salary for the period he remained under custody and for the period under suspension, decision will be taken after final decision in the criminal case, which is pending against the petitioner. It was further ordered that the said period will not be treated to be the period on duty and post-retirement benefits will be given to the petitioner for the period spent on duty. It is further case of the petitioner that subsequently, vide judgment dated 07.04.2007 passed by the competent Court, the petitioner was acquitted of all the charges in the criminal case. After his acquittal in the criminal case, the petitioner submitted his pension papers on 02.09.2012 and further requested to make payment of his salary from December 1992. After submission of his pension paper, again an order was passed by the competent authority on 04.01.2013 whereby it was ordered that the punishment imposed to the petitioner on 05.10.2005 has been re-appreciated and in terms of the decision taken therein, it has been decided that since the petitioner was not present at his Headquarter, during the period under suspension and he also did not cooperate in the departmental proceeding, therefore, a decision has been taken that the petitioner will not be entitled for any payment for the period under suspension, except the subsistence allowance and the said period will not be treated to be the period spent on duty. Being aggrieved with the order dated 04.01.2013, the petitioner filed the present writ petition.

The learned counsel for the petitioner submits that during pendency of the writ petition, the petitioner has been paid certain amounts towards his post-retirement benefits, however, the same is not in terms of his entitlement. He submits that a criminal case was lodged against the petitioner under Section 138 of the Negotiable Instrument Act, however, the allegations were not related to any discharge of duty as a government servant and did not involve any moral turpitude. He submitted his joining in the office of the Executive Engineer on 24.05.1993, after his release from custody, however, his joining was kept in abeyance and the petitioner was not allowed to work. An explanation was sought for from the petitioner with regard to his absence, which was duly replied by the petitioner, with a request to permit him to join and to resume his duties. He submits that on the one hand the joining of the petitioner was kept in abeyance by the respondent authorities and on the other hand he was issued an explanation with regard to his absence from duties. The petitioner submitted his explanation, wherein apart from others, he informed the authorities that despite him giving his joining on 24.05.1993, he is not being permitted to work and he is also not being paid any salary since December 1992, which resulted in acute financial condition for him and his family. He submits that on 23.12.1993, a routine order of transfer was issued wherein the petitioner was transferred to Motipur, however, he was never relieved by the authorities to join at the transferred place of posting and this fact was informed by the petitioner to the higher authorities, that he is neither being allowed to work nor being paid his salary. He submits that the petitioner was not aware about the initiation of any departmental proceeding against him, since no communication was ever received by the petitioner, therefore, he could not participate in the same and an ex-parte order was passed against him. The said order was also not communicated to the petitioner and when the notice in the local newspaper was published, then the petitioner came to know about the departmental proceeding. The petitioner appeared before the Enquiry Officer, whereby he denied the charges levelled against him, however, no action was taken on the same. The petitioner superannuated on 30.11.2000 and thereafter the departmental proceeding pending against the petitioner was converted into the proceeding under Rule 43(b) of the Bihar Pension Rules. A formal order of revocation of suspension was issued on 23.05.2003, wherein the suspension of the petitioner was revoked from the date of his retirement i.e. 30.11.2000, however the departmental proceeding continued under Rule 43(b) of the Bihar Pension Rules, even though no charge of grave misconduct or having caused financial loss to the government by misconduct or negligence was there in the memo of charge. In 2003, on account of retirement of the previous Enquiry Officer, a new Enquiry Officer as well as the Presenting Officer were appointed. An ex-parte enquiry report was submitted and the copy thereof was not provided to the petitioner and no second show cause was issued to the petitioner. All of a sudden, impugned order of punishment dated 05.10.2005 was issued against the petitioner, whereby it was directed that the petitioner will be paid only subsistence allowance for the period under suspension and custody. Decision with respect to payment of salary for the said period will be taken after decision in the criminal case. The period, during which the petitioner was behind bars will not be treated to be on duty and the petitioner will be paid his retirement benefits on the basis of the period spent on duty.

The learned Senior counsel for the petitioner further submits that the entire departmental proceeding conducted against the petitioner was in violation of the principles of natural justice, equity and fair play. No evidence, oral or documentary were produced to support the charges levelled against the petitioner. The copy of the enquiry report was not provided to the petitioner. Even no opportunity to represent against the same was ever provided to the petitioner. He next submits that after retirement, no order under the Bihar Service Code can be passed, since, on the date of retirement, there was no adverse finding of guilt against the petitioner, as well as the fact that there was no master servant relationship in between the petitioner and the respondents. He submits that powers under Rule 43(b) of the Bihar Pension Rules can be exercised only if the charges are grave or have caused financial loss to the government. There was no allegation against the petitioner with regard to same, therefore, the conversion of the proceeding on the face of it is illegal and is in violation of the Statutes. He further submits that since the order of punishment was not communicated to the petitioner, therefore, he was deprived of his right to challenge the same before the appellate authority. He submits that no show cause notice was issued, before passing the impugned order of punishment, therefore, the order of punishment itself is bad in law and is fit to be set aside.

The learned Senior counsel for the petitioner refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in 2026 SCC Online SC 1109(SurekahdomajiBele Vs. The Executive Engineer, Testing Division MSEDCL), wherein in paragraph nos.106 to 110, it has been held as follows:-

Per Contra, the learned counsel appearing on behalf of the State, while referring to the counter affidavit filed on behalf of the State will submit that after his appointment and posting at different places, the petitioner gave his joining on 01.07.1992 at Public Health Division (Mechanical), Patna as Estimating Officer and he was paid his salary till 30.11.1992.He remained absent w.e.f. 01.12.1992, without any information and later on, it transpired that he was in custody since 26.04.1993 to 21.05.1993, in connection with a criminal case bearing complaint case no.109(C) of 1992. After he was released from custody, he came to the office on 24.05.1993, however, he again remained absent w.e.f. 25.05.1993 till the date of order passed in the departmental proceeding. He did not give any reply to the show cause notice issued to him. He submits that as per Rule 99 of the Bihar Service Code, the period spent in jail was treated as the period under suspension from service. Further in accordance with Rule 100 of the Bihar Service Code, he was suspended from the date of order and as per Rule 55 of the Bihar Service Code, a departmental proceeding was initiated against him. He submits that the petitioner superannuated from service on 30.11.2000 and vide order dated 23.05.2003, the departmental proceeding against the petitioner was converted under Rule 43(b) of the Bihar Pension Rules. He submits that on 31.08.2003, the enquiry Officer also superannuated and therefore the departmental proceeding could not be completed and finally vide order dated 23.03.2005, the Enquiry Officer was again appointed. Subsequently, the impugned order of punishment was passed on 05.10.2005. The petitioner was asked to present his pension papers through paper publication in local newspaper, since he was absent w.e.f. 25.05.1993, however, the petitioner did not appear and lastly, he submitted his pension papers on 21.09.2012. In terms of the orders passed by the competent Court in the criminal case, a decision was taken on 04.01.2013 that the petitioner shall be paid only subsistence allowance for the suspension period and it will not be considered as the period spent on duty. The petitioner has already been paid Rs.150498/- towards his subsistence allowance on 29.08.2014. He submits that even the service Book of the petitioner was not complete and therefore, the department faced a lot of problem. He submits that the petitioner has been paid Rs.36088/- towards group insurance on 12.09.2014, Rs.61216/- towards unutilized leave on 12.09.2014 and Rs.123827/- towards GPF. He further submits that the petitioner has been sanctioned pension and gratuity by the Accountant General, Bihar, Patna vide PPO No.201411032454 dated 19.09.2014. The payment of retiral dues have been made to the petitioner on the basis of his last paid drawn in the month of November 1992 and thereafter no increment was sanctioned and his pay was not revised due to suspension and his absence. He submits that as per Rule 78 of the Bihar Service Code, increment in the payscale is not admissible to the petitioner. He further submits that the order regarding revision of scale of pay of the State Government employees, was issued vide Finance Department Letter dated 08.02.1999wherein it has been prescribed that all government employees who were in service on 01.01.1996 and to all new appointment made on or after the said date, provided that in respect of government employee, who were under suspension or on leave or were not on duty on 01.01.1996, the revised payscale will be applicable from the date of their return to duty. The petitioner was not on duty w.e.f. 01.12.1992 till his superannuation on 30.11.2000, therefore, as per the provisions contained in Rule 78 (Appendix-6) of Bihar Service Code and the Finance Department Letter dated 08.02.1999, the existing pay of the petitioner was not revised w.e.f. 01.01.1996, in the revised pay scale and accordingly the increments were not admissible to him. The petitioner was not found entitled for the benefits of A.C.P. w.e.f. 09.08.1999, since the petitioner remained absent from duty since 09.08.1999 to 30.11.2000.

The learned counsel for the State next submits that the prayer sought for by the petitioner through the Interlocutory Application is not tenable, since no reason has been assigned for challenging the order dated 05.10.2005, in the year 2014 and that too by way of an Interlocutory Application. He submits that it is not in dispute that the petitioner remained unauthorizedly absent from his duty w.e.f. 01.12.1992 and since the petitioner was in judicial custody for more than 48 hours, therefore, he was put under suspension.The petitioner never appeared before the Enquiry Officer, as such the disciplinary authority vide order dated 05.10.2005, by agreeing with the finding of the Enquiry Officer, passed the order of punishment against the petitioner.

The learned counsel for the petitioner in reply to the submissions made by the learned counsel for the State submits, that all the retiral benefits, including the pension have been fixed on the basis of pay of Rs.2180/- which he had last drawn in December 1992. The same should have been calculated on the entitlement of the petitioner on 30.11.2000, when he actually superannuated from service. The salary from January 1993 till the date of retirement has not been paid, although during the period under suspension from 06.03.1997 to 30.11.2000, it was directed that his full salary, apart from subsistence allowance will be paid according to the result of the criminal case, in which the petitioner was finally acquitted on merits. From January 1993 to February 1997, the petitioner was not allowed to work on account of the rigid attitude of the respondent authorities and the benefits of A.C.P., which the petitioner is entitled from 09.08.1999, ought to have been given as in his service career, he has never got any promotion and he had completed 12 years of service prior to 09.08.1999. He submits that the stand of the respondent authorities for denial of increments to the petitioner is not tenable, since, Rule 78 of the Bihar Service Code only deals with the time scale of pay, which is to be admissible to a person/employee for the first time or when he is promoted. In the present case, the petitioner is in the scale of junior Engineer since his appointment in the year 1979 and as such there is no dispute with regard to the scale to be given to the petitioner. He further submits that after retirement of petitioner, recourse to Rule 97 of the Bihar Service Code is not available to the respondent authorities for passing any order, as only order after retirement of the petitioner, which can be passed, is with regard to holding of retiral dues, as such the orders passed by the respondent authorities for denial of full salary and denial of increment, as well as the benefits of A.C.P. is without jurisdiction and cannot be sustained.

Having heard the rival submissions and after going through the records, including the entire file/record related to the departmental proceeding initiated against the petitioner, which was directed to be produced by this court vide order dated 16.06.2026, wherein it was recorded as under:

While finally hearing the matter and reserving the judgement vide order dated 30.06.2026, this court recorded that the original records related to the departmental proceeding has been furnished by the learned counsel appearing on behalf of the state and the same be kept on record.

Before proceeding to pass the present judgement, this court thoroughly went through the entire file, which was provided to this court by the learned counsel for the State on 30.06.2026. From perusal of the file, it transpired that the petitioner gave his joining, after his release from custody on 24.05.1993.The Executive Engineer kept on asking the Department for guideline/necessary directions, which was never given to him. The petitioner, as it appears from the record/file, submitted certain replies/letters before the respondent authorities from time to time, however, admittedly he was not present at his headquarter. A decision was taken to place him under suspension and a departmental proceeding was initiated. Memo of charge was prepared and it was directed to be served upon the petitioner. Since, the petitioner was not present in the office/headquarter, he was repeatedly requested by the authorities concerned through different letters, which are available in file, to place his case and to appear before the enquiry officer. Letters were issued at his address, which was available with the respondent authorities, provided by the petitioner at the time of his appointment. The letters were returned unserved, both at his permanent address and at his address in Patna. The respondent authorities were not at fault for non-service of letters, since they were duty bound to serve the letter at the address, which was provided by the employee and in the present case, as it appears from the original records, efforts were made to serve the notices/letters upon the petitioner at his village address as well as his address at Patna, however at both the places, he was not found present and the letters were returned unserved. The argument of the learned senior counsel for the petitioner with regard to non-communication of any letter/notice related to the departmental proceeding or the order of punishment upon the petitioner, is fit to be rejected, since, every effort was made by the respondents to send notice at his village and at his Patna address, which was provided by him at the time of his appointment. The respondents were expected to send communication to the petitioner at the addressed provided by him.

The Hon’ble Supreme Court of India in a recent judgement in the case of (M/S Rifilis Engineering Pvt. Ltd. V/S Arjun Gupta), passed in Civil Appeal No.8075 of 2026, while considering similar matter with regard to non-service of notice upon an employee, in paragraph no.8 has held as under:

In the present case this court finds that every effort was made to send letters/notices to the petitioner, however the same returned unserved on account of the petitioner not found present at the address, which he had provided. Finally, paper publication was made on 04.09.2001, with a request to the petitioner to give his joining within one month from the date of publication of the notice. Even then the petitioner did not approach before the respondent authorities. The departmental proceeding was not concluded against the petitioner on account of the retirement of the enquiry officer, who superannuated on 30.01.2000, without submitting his enquiry report, as would be evident from letter dated 23.03.2005, which is at page no.219 of the original file. From the same letter, it would transpire that vide letter dated 23.05.2003, the departmental proceeding, which was initiated against the petitioner during his service was converted into a proceeding under Rule 43 (b) of the Bihar Pension Rules. After retirement of the conducting officer, the matter with regard to the appointment of conducting officer was pending with the State Government and lastly one Narsing Paswan, Executive Engineer (Mechanical), P.H.E.D., Patna was appointed as the conducting officer and one Kalanand Mandal, Assistant Engineer (Mechanical) was appointed as the presenting officer by the same letter dated 23.03.2005. It further appears from the file/record that no enquiry report is available in the entire file, which has been provided to this court on 30.06.2026. Since the enquiry report itself is not available in the file, therefore, no second show cause notice was issued to the petitioner, which is also not available in the file. The disciplinary authority, although, recorded in the order dated 05.10.2005, that on submission of the enquiry report and after going through the documents, impugned order of punishment is being passed, however, from the entire original file/record this court does not find any enquiry report. Therefore, in absence of any enquiry report, the punishment order has been passed, inflicting punishment against the petitioner. Even after passing of the impugned order of punishment, the petitioner did not present himself before the authorities for payment of the retirement benefits, although, several communications were made to the petitioner. Subsequently, again a notice was published in the local newspaper on 02.12.2005, requesting the petitioner to appear and submit his papers for payment of pension. Finally, the petitioner submitted his pension papers on 21.09.2012 and immediately thereafter filed the present writ petition. During pendency of the present case, the petitioner has been paid his retirement benefits, on the basis of his pay fixation done in 1992.

From perusal of the original file/record related to the departmental proceeding against the petitioner as well as the materials available on record, this court comes to the conclusion that it is not in dispute that the petitioner was unauthorizedly absent from duty, however no departmental proceeding was conducted, after appointment of the second enquiry officer on 23.03.2005 or even prior to 23.03.2005, since it is on record that the first enquiry officer superannuated on 30.01.2000, without submitting any enquiry report. No enquiry report is available in the file to suggest that any enquiry was conducted against the petitioner and therefore any order of major punishment, passed against the petitioner, without any departmental enquiry is vitiated on the ground, that the same was passed without any departmental enquiry against the petitioner and without issuance of any second show cause notice to him. This court after going through the original file/record, comes to the conclusion that no enquiry whatsoever was conducted, before passing the impugned order of punishment against the petitioner. This court is of the considered opinion that the order of punishments contained in memo no.382 dated 05.10.2005 and memo no.07 dated 04.01.2013 have been passed without following the due process of law, therefore, the same deserves to be set aside and are accordingly set aside.

The petitioner will be entitled for all the benefits, for which he would have been entitled prior to issuance of memo no.382 dated 05.10.2005 and memo no.07 dated 04.01.2013, except payment of full salary for the period 01.12.1992 till the date of retirement i.e. 30.11.2000, since from the original file related to the departmental proceeding, this court has found that every effort was made to inform the petitioner with regard to his joining and to participate in the departmental proceeding. Admittedly, the petitioner did not work for the said period. The authorities concerned are further directed to calculate the post-retirement benefits, payable to the petitioner, after calculating his service from December 1992 and by giving the benefit of the A.C.P. from 09.08.1999 (which has been admitted in the counter affidavit of the respondents) till the date of retirement of the petitioner. The respondent authorities are directed to complete the entire exercise, as directed above and to pay all the benefits accruing thereupon, within a period of 4 months from the date of receipt/production of a copy of the order.

This court is conscious of the fact that the petitioner remained absent from his duties w.e.f. 01.12.1992, however, is also conscious of the fact that the petitioner superannuated on 30.11.2000, therefore, this court would refrain from remitting the matter back to the respondent authorities, for proceeding afresh against the petitioner. The decision not to remit the matter back to the responded authorities it taken in view of the judgement of the Hon’ble Supreme Court of India reported in 2017 (2) SCC 308 (Allahabad Bank &Ors. VS Krishna Narayan Tewary), wherein in paragraph no.8 it has been held as under:

Similar view has been taken by an Hon’ble Division Bench of this court in the case of (State of Bihar &Ors. V/S Vikash Kumar @ Vikas Kumar)passed in L.P.A. no.446 of 2024.

On the basis of the judgement of the Hon’ble Supreme Court of India and the Hon’ble Division Bench of this court, this court is not remitting back the matter for proceeding afresh against the petitioner, on account of his retirement on 30.11.2000 and on account of the fact that despite the opportunity with the respondent state, to conduct the departmental proceeding in accordance with law, they failed to discharge their obligation. In case the petitioner was not cooperating in the proceeding, it was always open to the respondents to proceed ex-parte, however, by following all the process in accordance with law, in the present case the same has not been done. Therefore, now the opportunity is not available to the Respondents, after 26 years of the retirement of the petitioner.

Accordingly, the writ petition is allowed in the aforementioned terms.

pending applications, if any, shall also stand disposed of.

The original records, related to the departmental proceeding conducted against the petitioner, which were provided to this court on 30.06.2026 are being returned to the learned counsel for the State Respondents.