Bindeshwari Chaudhary v. State of Bihar — 1998 DIGILAW 847 (PAT)

ORDER After having heard the learned counsel for the parties and going through the materials on record including the pleadings filed on their behalf, this writ application is being disposed of at the admission stage itself. 2. In this writ application under Article 226 of the Constitution of India, prayer of the petitioner is for quashing the order dated 24.9.1997 whereby the respondent Deputy Secretary, Water Resources Department, Govt. of Bihar, has withheld the gratuity amount and pension of the petitioner, copy of such order is made Annexure-1 to this writ application. By amendment petition, further prayer has been made for quashing the letter dated 17.6.98 issued by the respondent joint Secretary, Water Resources Irrigation) Department, Govt. of Bihar, whereby the petitioner has been asked to submit show cause within the time mentioned therein in terms of Rule 139 (a) (b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the 'Rules'), as to why pension and gratuity be not fixed at zero level on the basis of the charges having been proved in the departmental proceeding, copy of the said letter is made Annexure-19 to the amendment petition. 3. The facts leading to filing of the instant writ application are that the petitioner was initially appointed as Assistant Engineer on 7.10.66, who was promoted to the post of Executive Engineer, and he was transferred on such post at different places from time to time and lastly posted as Technical Adviser to the Superintending Engineer, Water Resources Department, Drainage Circle, Samastipur, wherefrom he retired on 31.1.97. In course of service the petitioner was posted as Executive Engineer, Irrigation Division, Giridih on 23.12.86 from where he was transferred and posted as Executive Engineer, Master Planning Division, Daltonganj on 11.6.90. While he was posted as Executive Engineer at Daltonganj he was placed under suspension in anticipation of the departmental enquiry vide office order dated 4.4.91 issued under the signature of respondent Joint Secretary of the same department. The petitioner challenged the order of suspension by filing writ application being C.W.J.C. No. 2637/91 which was disposed of by order dated 16.4.91 with a direction that the chargesheet must be issued and served upon the petitioner within a period of three months from the date of communication of the order, failing which the suspension order shall stand automatically quashed. The petitioner challenged the order of suspension by filing writ application being C.W.J.C. No. 2637/91 which was disposed of by order dated 16.4.91 with a direction that the chargesheet must be issued and served upon the petitioner within a period of three months from the date of communication of the order, failing which the suspension order shall stand automatically quashed. The said order passed in the aforesaid writ application is made Annexure-2 to this writ application. It is alleged that since the chargesheet was not served upon him within the time stipulated, the petitioner submitted his joining report on the assumption that the suspension order stands revoked in view of the order passed in the aforesaid writ application. It is alleged that the petitioner received charge-sheet dated 2.5.91 on 13.6.91. The Memo also discloses the name of one Sri Hari Sharan Sinha, Chief Engineer, Ranchi, as conducting officer. Pursuant thereto, the petitioner submitted his show cause of the charges levelled against him and subsequently appeared in the departmental proceeding on different dates, copy of the chargesheet is made Annexure-3 to this writ application. The said departmental proceeding could not be concluded as the conducting officer was to retire from service on 31.8.91. Accordingly he sent a letter to the respondent Joint Secretary requesting him to appoint another conducting officer in his place. Since the order of suspension was not revoked the petitioner again filed writ application being C.W.J.C. No. 4439/91 for quashing the order of suspension. A Division Bench of this Court by its order dated 10.10.91 ultimately quashed the order of suspension with a direction to the respondents to expedite and conclude the departmental enquiry within three months from the date of receipt of copy of the order copy of the said order is made Annexure-5 to this writ application. The respondent Joint Secretary (Vigilance), Water Resources Department, by his order dated 5.12.91 has revoked the order of suspension including the proceeding initiated against the petitioner on 2.5.91 in terms of Rule 55 of the Bihar Civil Service (Classification, Control & Appeal) Rules (hereinafter referred to as the 'Civil Rules'). The respondent Joint Secretary (Vigilance), Water Resources Department, by his order dated 5.12.91 has revoked the order of suspension including the proceeding initiated against the petitioner on 2.5.91 in terms of Rule 55 of the Bihar Civil Service (Classification, Control & Appeal) Rules (hereinafter referred to as the 'Civil Rules'). By the said letter the petitioner was directed to submit his joining report in the office of the respondent Joint Secretary (Management Cell) and so far the payment of salary for the period of suspension, it was ordered that final decision will be taken latter on, copy of the said letter is made Annexure-6 to this writ application. It is alleged that pursuant thereto petitioner joined as Technical Adviser to Superintending Engineer, Water Resources Department, Drainage Circle, Dumka on 14.1.92. By order dated 18.6.93 the respondent authority, pursuant to the chargesheet dated 2.5.91, passed the following order of punishment, namely, (i) Punishment of censure to be entered in the character roll for the year 198990;(ii) Withholding of three increments in the salary with cumulative effect, (Annexure-7). The said order of punishment was challenged by the petitioner in C.W.J.C.No.948/94, which was disposed of vide order dated 23.3.95 whereby the writ application was partly allowed and withholding of increments with cumulative effect was quashed with further observation to proceed with the departmental proceeding against the petitioner in accordance with law, copy of the order is made Annexure-8 to this writ application. Pursuant to the direction issued in the aforesaid writ application, a fresh departmental proceeding in terms of Rule 55 of the Civil Rules was initiated vide Resolution dated 20.5.95 and one Sri Shanti Nath Jha, the then Chief Engineer, Planning Division, was appointed as conducting officer. Show cause notice was issued accordingly to the petitioner directing him to file his show cause. Pursuant thereto, the petitioner appeared and filed his show cause and took part in the proceeding and ultimately he was found guilty of the charges, copy of the Resolution is made Annexure-10 to this writ application. The enquiring officer has found him guilty of the charges and, accordingly, submitted his report to the disciplinary authority who issued a show cause notice to the Petitioner against the proposed punishment of dismissal, vide memo dated 23.11.96, from service along with copy of the enquiry report. The enquiring officer has found him guilty of the charges and, accordingly, submitted his report to the disciplinary authority who issued a show cause notice to the Petitioner against the proposed punishment of dismissal, vide memo dated 23.11.96, from service along with copy of the enquiry report. The petitioner, accordingly, submitted his show cause before the disciplinary authority on 7.1.97 challenging the finding arrived at by the enquiry officer. Since the petitioner retired on 31st January, 1997, the disciplinary authority could not pass a final order on the basis of the report submitted by the enquiry officer and ultimately in terms of Rule 43(b) of the Rules the impugned order has been passed forfeiting the gratuity amount and pension of the petitioner. Sum and substance of the charges levelled against the petitioner was that he has paid a sum of Rs. 14,34,725/- on the forged Bank guarantee to the contractor M/s D.K. Roadlines and has not informed the department even after same was found forged. The said charge was proved in the departmental proceeding. 4. In this case, a counter affidavit has been filed on behalf of the respondents wherein, inter alia, it is stated that the departmental proceeding was initiated vide memo dated 2.5.91 against the petitioner wherein punishment of censure and stoppage of three increments were imposed. The second punishment withholding three increments was quashed by the High Court on the ground that since the punishment withholding three increments with cumulative effect is a major punishment, the same cannot be allowed to stand in view of the fact that no proper opportunity was given to the petitioner. However, the High Court refused to interfere with the first punishment of censure inflicted upon the petitioner, but directed the respondent authority to initiate a departmental proceeding afresh on the same charges and pursuant thereto a fresh proceeding was initiated vide Resolution dated 20.5.95 (Annexure-10). Accordingly, the old proceeding, which was initiated in 1991, was reopened in terms of direction of the High Court and finally the enquiry officer found him guilty, submitted his report on 18.10.96 and on receipt thereof second show cause notice was issued by the disciplinary authority calling upon the petitioner to submit his show cause within the time mentioned therein. Accordingly, the old proceeding, which was initiated in 1991, was reopened in terms of direction of the High Court and finally the enquiry officer found him guilty, submitted his report on 18.10.96 and on receipt thereof second show cause notice was issued by the disciplinary authority calling upon the petitioner to submit his show cause within the time mentioned therein. It is alleged that the petitioner was aware of the date of superannuation and deliberately submitted his show cause reply on 7.1.97 (Annexure-12) and before appropriate orders could be passed after approval of the Council of Ministers and the Bihar Public Service Commission, he superannuated on 31.1.97 whereafter the impugned order dated 24.9.97 (Annexure-1) was passed. It is stated that the only order could have been passed after his superannuation must necessarily be under the provisions of the Bihar Pension Rules since after retirement no other punishment could have been imposed on the petitioner. It is further stated that admittedly the proceeding was initiated against the petitioner prior to his retirement which was concluded by passing the impugned order dated 24.9.97 withholding his pension on the proved misconduct it' the departmental proceeding. It is further alleged that on a proved misconduct, the Bihar Public Service Commision has approved the proposal of dismissal of the petitioner from the service but since the petitioner retired meanwhile, it saved him from dismissal and instead order under Rule 43(b) of the Rules withholding pension as well as gratuity has been passed. 5. Mr. Shyama Prasad Mukherjee learned Sr. Counsel for the petitioner has assailed the order under challenge in this writ application and submits that the impugned order dated 24.9.97 (Annexure-1) is wholly illegal, arbitrary and without jurisdiction, inasmuch as, the said order could not have been passed when the petitioner already retired on 31.1.97. It is further submitted that there is neither any order of the respondent authority for initiating proceeding in terms of Rule 43(b) of the Rules nor separate proceeding was initiated under the said Rules. It is further submitted that there is absolutely no evidence against the petitioner to substantiate the charges against him. According to the learned counsel, no sufficent and proper opportunity was given to the petitioner to substantiate his case in the departmental proceeding. Mr. It is further submitted that there is absolutely no evidence against the petitioner to substantiate the charges against him. According to the learned counsel, no sufficent and proper opportunity was given to the petitioner to substantiate his case in the departmental proceeding. Mr. Mukherjee submits that fresh proceeding initiated against the petitioner is hit by the provisions of Rule 43(b) proviso (ii) of the Rules, inasmuch as, the incident relates to 1989-90 and the alleged charge was served in 1995, obviously the proceeding was initiated with respect to the incident which occurred more than four years before institution of such proceeding. Mr. Mukherjee further submits that when the C.B.I has exonerated the petitioner from the charges, he could not be punished by the respondent authority on the alleged misconduct. Mr. Mukherjee has also challenged the show cause notice issued to the petitioner in terms of Rule 139 of the Rules on the ground that when the impugned order withholding pension and gratuity has already been passed there was no necessity for initiating further proceeding in terms of the Rule 139 of the Rules. Learned counsel for the petitioner has relied upon the following decisions in support of his contention:- (i) Ram Ekbal Sharma VS. State of Bihar, reported in 1997(1), All P.L.R., 61, (ii) State of U.P. VS. Shri Krishna Pandey, reported in 1996 SCC Vo1.9, 395, Dharamdeo VS. State of Bihar, reported in 1979 (3) P.L.R., 443 and U.P. Warehousing Corpn. VS. Vijay Narayan, reported in AIR 1980 SC 840 . 6. In opposition, learned counsel for the State respondents, however, has supported the order passed by the respondent authority and submits that the original proceeding was initiated while the petitioner was in service which was subsequently revived pursuant to the direction of this Court in the writ application mentioned hereinabove and as such, it cannot be said that the proceedin9 was initiated after the retirement of the petitioner. It is further submitted that sufficient opportunity was given to the petitioner in the departmental proceeding and after taking into consideration all the relevant materials on record the enquiring officer has found him guilty of the charges levelled against him and on a proved gross misconduct he could have been dismissed from the service but because on intervening circumstances only the impugned order in terms of Rule 43(b) of the Rules has been passed. Learned counsel has further submitted that second show cause notice was also issued and pursuant thereto the petitioner has filed his show cause and considering the show cause including other relevant materials the respondent authority was fully justified in passing the impugned order. Learned counsel submits that issuance of show cause in terms of Rule 139 of the Rule is consequent upon the order passed under Rule 43(b) of the Rules. In support of his contentions learned counsel has relied upon a decision in the case of Braj Kishore Pd. Shrivastava vs. Bihar State Electricity Board, reported in 1998(2) P.L.J.R. 744. 7. Before disussing the ratio of the cases relied upon by the learned counsel for the parties, it would be relevant to take notice of Rule 43(b) of the Bihar Pension Rules, which is relevant for the decision of the writ application. The said provision reads thus:- "43(b). Shrivastava vs. Bihar State Electricity Board, reported in 1998(2) P.L.J.R. 744. 7. Before disussing the ratio of the cases relied upon by the learned counsel for the parties, it would be relevant to take notice of Rule 43(b) of the Bihar Pension Rules, which is relevant for the decision of the writ application. The said provision reads thus:- "43(b). The State Government further reserve to themselves the right of withholding or withdrawing a pension or any• part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct or negligence, during his service including service rendered on re-employment after retirement:- Provided that : (a) such departmental proceeding, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government ;(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed." Mere perusal of the Rule, as quoted above, it is apparent that the State Government reserves the right either withholding whole or part of the pensionary benefits including recovery of pensionary benefits on account of the pecuniary loss caused to the Government by the delinquent employee provided the petitioner is found guilty of the charges in departmental or any judicial proceeding. This provision is fully applicable during the service period including the service rendered on reemployment. It is true that in terms of the proviso of the Rules aforesaid, if the departmental proceeding has not been instituted while the Govt. This provision is fully applicable during the service period including the service rendered on reemployment. It is true that in terms of the proviso of the Rules aforesaid, if the departmental proceeding has not been instituted while the Govt. servant was in service, in that event, such proceeding cannot be instituted after the retirement except with the prior sanction of the State Government. The second rider is that in respect of an incident occurred not more than four years before, the institution of such proceeding. It is submitted, with reference to the Rule aforesaid that once the proceeding was initiated during service tenure of the employee, the same cannot come to an end on his retirement, on the contrary it will continue even after the concerned employee retired from his service. It is therefore submitted that on the alleged facts the old proceeding was revived and/or initiated pursuant to the direction of the High Court in a writ proceeding. It is not necessary again to repeat the details of the subsequent proceeding, as it has already been mentioned above, which are undisputed according to the pleadings filed by the parties. 8. To appreciate the submissions of the learned counsel will refer to the decision first in the case of Ram Ekbal Sharma (supra). The question for consideration in that case was as to whether the State Government under Rule 43(b) can withhold pension and/or recover the amount from the pensionary benefits if the delinquent found guilty of the gross misconduct in a departmental or any judicial proceeding. Answering the question in affirmative his Lordship has held that a departmental proceeding and/or proceeding initiated in terms of Rule 43(b) during the service tenure of the of the employee is to continue even after the retirement of the Govt. servant but there must be a specific order for continuing such proceeding and that too, before retirement. In the case in hand, the admitted fact is that a proceeding was initiated while the petitioner was in service but was dropped by virtue of the judicial order which was reopened pursuant to the direction of the High Court and the said proceeding culminated by passing the impugned order. In that view of the matter, it cannot be hold that the respondent authority could not have passed the impugned order after retirement of the petitioner. In that view of the matter, it cannot be hold that the respondent authority could not have passed the impugned order after retirement of the petitioner. There was no necessity for the respondent authority to pass a specific order to allow such proceeding when earlier proceeding was revived by virtue of judicial order passed by this Court. In the case of 1996 SCC (supra), the question for consideration before the Apex Court was as to whether the departmental enquiry could be initiated for charge of embezzlement more than four years after the Government servant was allowed to retire on superannuation. On consideration of the fact, the Apex Court has held that such enquiry initiated after more than four years of the incident is illegal and hence the pensionary benefits, legally payable to such employee, cannot be withheld and/or forfeited. In other words, it has been held that such proceeding must be initiated before lapse of four years from the date on which such incident occurred. On the admitted fact, it was held that after more than four years of the alleged embezzlement causing loss to the Government and after the retirement of the employee, the State Government is incapable by their conduct to take action against such employee. In the instant case, the fact is otherwise. It stands admitted from the facts mentioned hereinabove and also from the pleadings filed on behalf of the parties that proceeding was initiated while the petitioner was in service and, that too, within the period of limitation which was, no doubt, allowed to die by judicial order but at the same time the State Government was given liberty to initiate a fresh proceeding on the charges already served on the petitioner. On the admitted facts, it cannot be held that the proceeding was initiated more than four years of the event, on the contrary the charge was served on the delinquent strictly in accordance with the period prescribed under the Rules. On going through the ratio of the decision relied upon by the learned counsel for the petitioner, I am of the view that decisions will not help the petitioner, in any way, as the proceeding in the instant case was initiated admittedly within four years of the occurrence. In the instant case, the ratio said down in the aforesaid case cannot be made applicable in the facts and circumstances of this case. In the instant case, the ratio said down in the aforesaid case cannot be made applicable in the facts and circumstances of this case. In the case of 1979(3) S.L.R. (supra), Rules 73(f) and 74(b) of the Bihar Service Code was under consideration, on the fact it has been held that displeasure of the Government could not have been communicated after the retirement of the delinquent particularly when the relationship of employee had ceased. From the fact of the case it appears that the delinquent had retired on 21st February, 1968 and after three months of his retirement chargesheet was served upon the delinquent. Thus, admittedly the proceeding was initiated after retirement of the employee as the enquiry is deemed to have been initiated on the day when the charge-sheet was served on the delinquent. In that view of the matter, this decision is also of no help to the petitioner. In the case of 1980 SC (supra), the Apex Court on consideration of the materials has held that dismissal order passed against the employee without instituting regular enquiry and in breach of principles of natural justice liable to be quashed. This was a case of dismissal of the concerned employee by the statutory body, namely, U.P. Warehousing Corporation. It has been held that the regular departmental enquiry deemed to have been initiated only after the chargesheet is drawn up and served upon the delinquent and on the show cause submitted by the delinquent the dismissal order was passed. In that circumstances it was held that the order of dismissal was wholly illegal as the rule of natural justice has been completely violated. Thus, the decision relied upon by Mr. Mukherjee will not, in any way, support the contention of the learned counsel. In that circumstances it was held that the order of dismissal was wholly illegal as the rule of natural justice has been completely violated. Thus, the decision relied upon by Mr. Mukherjee will not, in any way, support the contention of the learned counsel. On the other hand, learned counsel for the respondents has relied upon a decision reported in 1998(2) PLJR (supra), learned Single Judge of this Court on elaborate discussion of the Rules and various decisions of this Court as well as the Apex Court has held in paragraph 33 as follows:- "Thus, it has to be held that after the enquiry officer has submitted a report in favour of the delinquent and a copy of the same has been supplied to this petitioner, there is no further requirement that the disciplinary authority in case of disagreement with the findings of the enquiry officer should communicate his reasons for disagreement and give an opportunity of hearing to the delinquent employee with regard to those reasons before passing a final order in the departmental proceeding. The requirement is that in case of disagreement with the findings of the enquiry officer which are in favour of the delinquent, the reasons have to given in the final order." Reference may be made to the decision in the case of Deena Nath Prasad VS. The State of Bihar and others, reported in 1986 PLJR 403, wherein a Division Bench of this Court has considered Rules 43(b) and 139 of the Bihar Pension Rules and held that reading together of the aforesaid Rules, it is manifest that departmental proceeding initiated against the employee during service tenure can continue even after his retirement for the purpose of withholding and forfeiting pension etc. in accordance with Rule 43(b) of the Rules. 9. It stands admitted that before passing the impugned order, as contained in Annexure-1, the petitioner was asked to show cause, which. in accordance with Rule 43(b) of the Rules. 9. It stands admitted that before passing the impugned order, as contained in Annexure-1, the petitioner was asked to show cause, which. in fact, he has submitted and on consideration of the show cause including the findings recorded by the enquiry officer on the charge of gross misconduct, the impugned order has been passed and, as such, it can safely be held that sufficient opportunity has been given to the petitioner before passing the order under challenge at all stages and the enquiry report was served upon him while issuing show cause by the disciplinary authority and on consideration of the materials on record including the show cause and the findings recorded by the enquiry officer, the impugned order has been passed. On consideration of the entire materials on record including the submissions of the learned counsel appearing for the parties, I am constrained to hold that the decisions relied upon by the learned counsel for the petitioner will not, in any way, help the petitioner. 10. In the result, there is no merit in this writ application, which is, accordingly dismissed.