Patna High Court
The State Of Bihar vs Himanshu Shekhar on 9 January, 2025
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.555 of 2024
In
Civil Writ Jurisdiction Case No.14130 of 2019
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1. The State of Bihar through Principal Secretary, Department of Water
Resources, Bihar, Patna.
2. The Joint Secretary, Department of Water Resources, Bihar, Patna.
3. The Deputy Secretary, Department of Water Resources, Bihar, Patna.
4. The Engineer-in-Chief, (North), Water Resources Department, Irrigation
Bhawan, Patna.
5. The District Magistrate, Khagaria.
6. The Chief Engineer, Flood Control and Water Conservation, Water
Resources Department, Samastipur.
7. The Superintending Engineer, Control Circle, Water Resources Department,
Khagaria.
8. The Executive Engineer, Flood Control Division No.-2, Water Resources
Department, Khagaria.
... ... Appellant/s
Versus
Himanshu Shekhar Son of Late Shiv Kumar Sharma, Resident of Flat No.
104, Vijay Residency, Ranjan Path, Aviyanta Nagar, Opposite Shish Mahal
Marriage Hall, P.S.- Rupaspur, District - Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anjani Kumar, AAG-4
Mr.Sanjay Kumar (A.C. to A.A.G.4)
For the Respondent/s : Mr. Siya Ram Shahi, Advocate
Mr.Indu Bhushan, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 09-01-2025
The State is aggrieved by the judgment of the learned
Single Judge, which found that withholding of promotion is not
a punishment, in accordance with Explanation (ii) of Rule 14 of
the Bihar Government Servants (Classification, Control &
Patna High Court L.P.A No.555 of 2024 dt.09-01-2025
Appeal) Rules, 2005 (for brevity 'CCA Rules').
2. Mr. Anjani Kumar, learned Additional Advocate
General-4, submitted that the Explanation has been erroneously
interpreted. It is pointed out that withholding of promotion is a
punishment under Rule 14(ii). The Explanation is only to ensure
that when such withholding of promotion is made after
consideration of a person; then it is not necessarily a
punishment.
3. Shri Siya Ram Shahi, learned Counsel for the sole
respondent-writ petitioner, seeks to uphold the impugned
judgment. It is submitted that the punishment was imposed in
the year 2018 and withholding is directed from the time when
the employee is due for promotion, which would unnecessarily
prejudice the respondent.
4. Brief facts have to be noticed and it is seen that
three allegations were made against the employee. Charge sheet
was issued and despite granting sufficient time, there was no
response. The disciplinary authority imposed two punishments
as against the three charges levelled, which were of withholding
of three increments with non-cumulative effect and withholding
of promotion for three years from the due date. Withholding of
three increments with non-cumulative effect has worked itself
Patna High Court L.P.A No.555 of 2024 dt.09-01-2025
out. The grievance is only with respect to the withholding of
promotion from the due date.
5. We have also looked at Annexure-16 impugned
order, which indicates that there were three allegations raised
against the respondent. The first allegation was that on a
specified date, when the water level of the Bagmati river was
above the danger mark, the writ petitioner, who was the Sub
Divisional Officer, Flood Control Sub-Division, Badlaghat,
Khagaria, was not in station and not reachable on telephone;
which was switched off. The delinquent was absent from the
headquarters and work place and was not reachable, was the
first charge. The second charge related to an erroneous report
being submitted on the work carried out at a particular site.
Despite information of the errors crept in, the respondent failed
to correct it and the Executive Engineer-cum-Flood Control
Division-2, Khagaria had to conduct an investigation and send a
work report to ensure that the continuance of the work is not
hampered. The delinquent was alleged to have been negligent in
discharging his responsibilities. The third allegation was that the
respondent was not present when the Chairman, Special
Investigation Team, inspected the work site; again a charge of
remaining absent from the headquarters without information. As
Patna High Court L.P.A No.555 of 2024 dt.09-01-2025
against the three charges, two punishments were imposed,
which we do not find inappropriate.
6. Rule 17 of the CCA Rules mandates a disciplinary
enquiry, only when major penalties are imposed. The minor and
major penalties are prescribed under Rule 14 and to the extent
applicable in the present case, the rule is extracted hereunder
along with the Explanation:-
"14. Minor and Major Penalties.- The following
penalties may, for good and sufficient reasons and as
hereinafter provided, be imposed on a Government
servant, namely:-
Minor Penalties:-
(i) xx xx
(ii) withholding of promotion;
(iii) xx xx
(iv) xx xx
(v) withholding of increments of pay with cumulative
effect.
Explanation.- The following shall not amount to a
penalty within the meaning of this Rule, namely:-
(i) xx xx
(ii) withholding of promotion of a Government
servant after consideration of his case to a service,
grade or post for which he is eligible, whether he is in
a substantive or in officiating capacity."
7. From a plain reading of the rule, it is clear that
withholding of promotion is a minor penalty, as stipulated in the
CCA Rules. The explanation is by way of an abundant caution,
when a withholding is made after consideration of an employee
for promotion. There can be many situations where such a
withholding occurs. A serious misconduct committed
Patna High Court L.P.A No.555 of 2024 dt.09-01-2025
immediately after consideration, but before the promotion is
granted, could lead to withholding of the same. Similarly, when
a penalty is imposed pursuant to a disciplinary enquiry, during
the rigor of punishment, the delinquent would be disentitled for
promotion. The Hon'ble Supreme Court has time and again held
that this would not lead to a double jeopardy; in which
circumstance, withholding of promotion cannot be considered to
be a punishment. Likewise, when a disciplinary proceeding is
pending, if an employee's case comes up for promotion, a sealed
cover procedure is adopted; which results in withholding of
promotion. Considering such instances of withholding of
promotion, the Explanation has been provided. An explanation
cannot render otiose the main provision. When the rule itself
provides 'withholding of promotion' as a minor penalty, there is
no question of reliance being placed on the Explanation to find
that withholding of promotion is not a penalty. We, hence, find
the interpretation of the explanation to be erroneous and set
aside the judgment.
8. The contention of the respondent was also that
when the order was passed in the year 2018, if promotion had to
be withheld for three years, it can only run up to 2021.
9. We find absolutely no reason to accept the said
Patna High Court L.P.A No.555 of 2024 dt.09-01-2025
contention since if there is a Kalawadhi prescribed for
promotion and the employee has not achieved the Kalawadhi,
then a penalty imposed to withhold the promotion within a
period coming within the Kalawadhi prescribed, would be of no
consequence since it will be no punishment at all.
10. On the above interpretation and reasoning, the
appeal stands allowed, setting aside the impugned judgment of
the learned Single Judge.
11. Interlocutory application, if any, shall stand
closed.
(K. Vinod Chandran, CJ)
( Partha Sarthy, J)
Sujit/-
AFR/NAFR AFR
CAV DATE
Uploading Date 10.01.2025
Transmission Date
