Patna High Court
Md. Abul KalamversusThe Bihar State Power (Holding) Company Ltd.
- Decided
- Disposal
- ALLOWED
- Bench
- RITESH KUMAR
Holding
The appellate authority's order dated 20‑05‑2016 is set aside and the matter is remitted to the Chairman‑cum‑Managing Director for a fresh decision.
Summary
The petitioner, Md Abul Kalam, a Store Assistant appointed in 2006, was suspended in 2010 and faced departmental proceedings on six charges, of which five were found proved by the Enquiry Officer and the sixth was initially held not proved. Despite the Enquiry Officer’s view, the disciplinary authority treated the sixth charge as proved, dismissed the petitioner in 2011, and later modified the punishment to termination in 2014. The petitioner appealed, and the appellate authority in 2016 altered the penalty to withholding one increment and treating the suspension period for post‑retirement benefits while applying a "no work, no pay" principle for the out‑of‑service period. The petitioner challenged these orders by writ, arguing procedural irregularities, lack of proof for the pole shortage, and disproportionate punishment; the High Court earlier in 2012 had set aside the earlier dismissal and remitted the matter. Justice Ritesh Kumar held that the appellate authority failed to consider that the alleged pole shortage was regularised and that the punishment was disproportionate, thereby setting aside the impugned order and remitting the case to the CMD for a fresh decision within three months.
Issues considered
- Whether the dismissal and subsequent modified punishment were valid given the lack of proof for charge No.5 and procedural deficiencies.
- Whether the appellate authority's order is liable to be set aside for being disproportionate and for not considering the regularisation of the alleged pole shortage.
- Whether the period of suspension and out‑of‑service should be treated as service for post‑retirement benefits.
- Whether the review petition filed by the petitioner was barred by delay.
- Whether the writ petition seeking quashing of the disciplinary and appellate orders is maintainable.
Legislation cited
Subjects
- service termination
- disciplinary proceedings
- due process
- proportionality
- right to information
- public sector undertaking
- suspension
- post‑retirement benefits
- appeal
- writ petition
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No 4207 of 2022
======================================================
Md Abul Kalam Son of Late Md. Samsuddin, Resident of Saharsa Basti, P.O.
and P.S. - Saharsa, Dist. - Saharsa.
... ... Petitioner/s
Versus
1. The Bihar State Power (Holding) Company Ltd. through its Deputy General
Manager (HR/Adm), Vidyut Bhawan, Bailey Road, Patna.
2. The Chairman - Cum - Managing Director, Bihar State Power (Holding)
Company Ltd., Vidyut Bhawan, Bailey Road, Patna.
3. The North Bihar Power Distribution Company Ltd., Vidyut Bhawan, Bailey
Road, Patna.
4. The Managing Director, North Bihar Power Distribution Company Ltd.,
Vidyut Bhawan, Bailey Road, Patna.
5. The General Manager (HR/Adm), Bihar State Power (Holding) Company
Ltd., Vidyut Bhawan, Bailey Road, Patna.
6. The General Manager (HR/Adm), South Bihar Power Distribution Company
Ltd., Vidyut Bhawan, Bailey Road, Patna.
7. The Deputy General Manager (Revenue), North Bihar Power Distribution
Company Ltd., Vidyut Bhawan, Bailey Road, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr Dhanendra Chaubey, Advocate
For the Respondent/s : M/s Sanjeev Kr, Ravi Kr Pandey, Advocates
======================================================
CORAM: HONOURABLE MR JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 16-02-2026
Heard learned counsel for the parties.
2 The present writ petition has been filed for the
following reliefs:
“A For issuance of appropriate writ in
the nature of certiorari or any other appropriate
writ, order (s), direction (s) for quashing that
part of order No 711 dated 20.05.2016 (Anneure
7) whereby and where under respondent No 2
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
2/11
the Chairman -cum- Managing Director and the
Appellate Authority quashing the order of
dismissal of the petitioner from the service of the
Company issued by the Disciplinary Authority
vide Order No 151 dated 31.01.2014 (Annexure
5) and reinstating the petitioner in service with
immediate effect has awarded the following
punishment to the petitioner:-
i Withholding of one increment with
non-cumulative effect;
ii For the period of suspension, only
subsistence allowance will be payable but the
period will be counted for post retirement
benefits;
iii The period of dismissal from service
from 31.01.2014 till the date of issue of order
during which Md Kalam remained out of service
will be regularized on the basis of principle of
“No Work, No Pay”.
B For quashing letter No 876 dated
26.04.2019 (Annexure 12) whereby and where
under review petition of the petitioner has been
rejected as communicated by Dy General
Manager (Personnel) of the respondent
Company.
C For issuance of appropriate
order/direction to respondents to treat the period
of suspension for the period from 23.08.2010 to
30.01.2014 on duty for all purposes as before
withholding salary for the suspension period, no
separate show cause notice was issued to
petitioner.
D For issuance of appropriate
order/direction to the respondents to treat the
period from 31.01.2014 to 09.05.2016 on duty as
the petitioner though willing to work was
restrained from discharging his official duties
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
3/11
because of issuance of dismissal order dated
31.01.2014.
E For issuance of appropriate
order/direction to the respondents to refund the
amount of subsistence allowance for the period
from 31.01.2014 to 20.10.2015 recovered from
the salary of petitioner drawn because of non-
communication of dismissal order.
F For allowing any other relief (s) to
which the petitioner is found entitled to.”
3 The brief facts giving rise to the present writ petition is
that the petitioner was appointed as Store Assistant vide Memo No
267 dated 23.06.2006 and accordingly, he gave his joining on
26.06.2007. Subsequently, he was promoted to the post of
Assistant Store Keeper vide Memo No 1931 dated 16.10.2018 and
while he was posted as Store Assistant in the central stores,
Saharsa, he was placed under suspension with immediate effect
vide Memo No 205 dated 23.03.2010. Departmental proceeding
was initiated against the petitioner under the provisions of the
Board’s Certified Standing Orders and six charges were framed
against him in which Enquiry Officer was appointed vide Memo
No 946 dated 07.07.2010. The Enquiry Officer, after conducting
the enquiry, submitted the enquiry report on 19.01.2011 wherein
the Enquiry Officer found charges No 1, 2, 3, 4 and 6 to be proved
and with respect to charge No 5, he opined that in absence of the
physical verification of the materials and stores, the charge cannot
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
4/11
be framed relating to misappropriation of poles on the basis of
report of pole factory.
4 The learned counsel for the petitioner submits that
thereafter second show cause notice was issued to the petitioner,
wherein enquiry report was also annexed but the petitioner could
not submit his reply to the second show cause notice within the
period specified. However, the Joint Secretary, by disagreeing
with the findings of the Enquiry Officer, came to the conclusion
that charge No 5 was also found to be proved and thereafter, issued
another show cause to the petitioner vide Memo No 163 dated
25.02.2011 and directed the petitioner to submit his reply within
10 days. In compliance thereof, the petitioner submitted his reply
on 10.03.2011, wherein he gave details of the charges levelled
against him and denied all the charges. By the impugned order
contained in Memo No 319 dated 18.03.2011, the petitioner was
dismissed from service and it was further mentioned that apart
from what he has got during the period of suspension, he will not
be entitled to any other amount. Being aggrieved with the order of
termination dated 18.03.2011, the petitioner preferred statutory
appeal before the then Member (Administration) of the Board.
Vide letter No 1007 dated 18.11.2011 issued under the signature of
the Joint Secretary of the Board, the petitioner was intimated that
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
5/11
his appeal has been rejected, however the order passed by the
appellate authority was not made available to the petitioner.
5 The learned counsel for the petitioner submits that the
petitioner filed an application under Right to Information Act and
obtained the order passed by the appellate authority on 31.10.2011.
The petitioner filed a writ petition bearing CWJC No 56 of 2012
before this Court and the said writ petition was disposed of by a
coordinate Bench of this Court vide order dated 01.02.2012
whereby the order passed by the Disciplinary Authority i e the
order dated 18.03.2011 and the order passed by the appellate
authority i e 31.10.2011 were set aside and liberty was granted to
the respondent-authorities to proceed with the matter afresh from
the stage of second show cause notice, by giving reasons for
differing with the findings of the Enquiry Officer with respect to
charge No 5 and permitting the petitioner to file his response to the
same. In compliance of the order dated 01.02.2012 passed by a
coordinate Bench of this Court, the Joint Secretary of the Board,
disagreeing with the findings of the Enquiry Officer with regard to
charge No 5, vide Memo No 495 dated 05.06.2012, directed the
petitioner to submit his reply to the show cause notice. In
compliance thereof, the petitioner submitted his reply to the
second show cause notice on 09.07.2012, wherein he gave details
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
6/11
of the defence in respect of charge No 5 but the disciplinary
Authority, without considering the defence of the petitioner,
modified the order of punishment of the petitioner by the
impugned order contained in Memo No 151 dated 31.01.2014 and
inflicted the punishment of termination from service and further
directed that during the period of suspension whatever the
petitioner has received towards subsistence allowance, nothing
will be paid further.
6 The learned counsel for the petitioner further submits
that being aggrieved with the order dated 31.01.2014 passed by the
Disciplinary Authority, the petitioner preferred appeal before the
Chairman -cum- Managing Director (for brevity, CMD) on
11.01.2016. Upon the appeal preferred by the petitioner, the DGM
(Revenue), North Bihar Power Distribution Company Limited (for
brevity, NBPDCL) vide his order contained in Memo No 625
dated 20.05.2016, modified the punishment order passed earlier, to
the extent that one increment of the petitioner will be withheld
with non-cumulative effect, during the period under suspension
whatever has been paid to the petitioner, no further amount will be
paid, however, the said period will be treated for making
calculation of post retirement benefit and no salary will be paid to
the petitioner for the period during which he remained out of
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
7/11
service i e we f 31.01.2014, till the date of issuance of the present
order on the principle of “no work, no pay”. Subsequently, the
petitioner obtained the copy of the order of the appellate authority
which was provided vide letter No 597 dated 25.07.2017 issued
under the signature of DGM (HR/Adm) of the NBPDCL, Patna.
7 The learned counsel for the petitioner further submits
that from perusal of the order passed by the appellate authority, it
would transpire that although with regard to charge No 5, the
appellate authority came to the conclusion with regard to 148
poles, that the same has been regularized belatedly in 2010.
However, he opined that it was the duty of the petitioner to keep
the store records up to date which shows dereliction of duty and
found charge No 5 to be partially proved. Being aggrieved with
the order passed by the appellate authority, the petitioner filed a
review before the appellate authority, but vide letter No 876 dated
26.04.2019, the petitioner was intimated that his review
application could not be entertained on account of delay of two
years and eight months.
8 A counter affidavit has been filed on behalf of
respondents No 3, 4 and 7, wherein it has been stated that the
petitioner was proceeded for grave misconduct and serious
irregularities, for which departmental proceeding was initiated and
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
8/11
out of six charges, five charges were found to be proved and
charge No 5 was not proved in absence of the evidence. It was
further submitted that after following due process, the petitioner
was dismissed from service and the appeal preferred by the
petitioner was also rejected. The learned counsel for the
respondent- NBPDCL further submits that petitioner preferred a
writ petition and vide order dated 01.02.2012, while quashing the
punishment order as well as the appellate order, the matter was
remitted back to proceed afresh and in compliance thereof, the
order of punishment was modified to the extent indicated in Memo
No 151 dated 31.01.2014. The petitioner preferred a review, but
the same was dismissed on the ground of delay.
9 The learned counsel for the petitioner submits that
although the charge No 5 was found to be partially proved since
from the order passed by the CMD of the NBPDCL, it will
transpire that with regard to shortage of 148 poles in the years,
2007, 2009 and 2010, the same were regularized vide different
letters dated 06.02.2010, 18.02.2010, 10.02.2010 and 04.01.2010
and only on the basis of the above charge, which from the records
itself, appears to be not of defalcation, the appellate authority
found the charge No 5 to be partially proved and opined that since
the petitioner has not taken care in keeping the records up to date,
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
9/11
which goes to show his dereliction of duty, he went ahead and
passed the impugned order of punishment which was
communicated vide Memo No 625 dated 20.05.2016.
10 Having heard the learned counsel for the parties and
after going through the document available on record, I find that
the charge No 5 was found not proved by the Enquiry Officer,
however disagreeing with the same, the Disciplinary Authority
issued second show cause notice to the petitioner and after
considering the same, passed the order of termination from
service, which was affirmed by the appellate authority, however
the same were quashed by a coordinate Bench of this Court vide
order dated 01.02.2012 passed in CWJC No 56 of 2012 and liberty
was granted to the respondents to proceed afresh from the stage of
second show cause notice by giving reason for disagreeing with
respect to charge No 5. The Disciplinary Authority again issued
second show cause notice to the petitioner and after considering
the reply submitted by the petitioner, went ahead with the order of
punishment and terminated the petitioner from service. However,
the same was modified by the appellate authority, to the extent that
the order of termination was modified by giving punishment of
stoppage of one increment with non-cumulative effect, for the
period under suspension, apart from what has been given to the
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
10/11
petitioner, nothing will be paid to him, however the period under
suspension will be counted for giving post retirement benefits and
the period during which the petitioner was out of service i e from
31.01.2014 till the issuance of the order impugned i e 20.05.2016,
the petitioner will not be entitled to any salary in view of principle
of no work no pay. This Court further finds that the authorities did
not take into consideration the fact that no loss was caused to the
NBPDCL on account of the shortage of 148 poles, which was later
on regularized. Accordingly, the order impugned contained in
Memo No 625 dated 20.05.2016 issued by the DGM (Revenue),
NBPDCL and letter No 597 dated 25.07.2017 issued under the
signature of the DGM (HR/Adm), NBPDCL deserve to be set
aside and are, accordingly, set aside.
11 The matter is remitted to the appellate authority, i e
the CMD, Bihar Power Holding Company Limited to take fresh
decision in view of the fact that no pecuniary loss or shortage was
caused to the Board, since the poles were found to be regularized
and the punishment which has been passed is disproportionate to
the charge, which has been partially proved against the petitioner.
12 The entire exercise must be completed within a
period of three months from the date of receipt/production of a
copy of this order.
Patna High Court CWJC No.4207 of 2022 dt.16-02-2026
11/11
13 With the aforesaid observation and direction, the writ
petition is allowed.
14 Pending application, if any, also stands disposed of.
(Ritesh Kumar, J)
M.E.H./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 24.02.2026
Transmission Date NA
Checking your session…