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1999 DIGILAW 641 (PAT)

Man Bahadur Mahto v. State of Bihar

1999-07-26

RADHA MOHAN PRASAD

body1999
Order The petitioner in this writ petition is aggrieved by the orders, contained in Annexures 14 and 18, whereby and whereunder the respondents authorities have purported to convert the proceeding initiated under rule 55 of the Bihar Civil Services (Classification, Control & Appeal) Rules into one under rule 43(b) of the Bihar Pension Rules and on continuation of the same imposed punishment, vide Annexure 18, impounding 100% pension for five years. 2. In short, the relevant facts are that an order initiating a proceeding under rule 55 of the Bihar Civil Services (Classification, Control & Appeal) Rules was passed on 25.4.1996 against the petitioner which was served upon him on 2.5.1996 after his retirement on 30th April, 1996 without extending his services in terms of the provisions contained in rule 73 of the Bihar Service Code. 3. It is submitted on behalf of the State that realising the difficulty in continuing the said proceeding after the petitioner ceased to be in the employment of the State after his retirement, the State authorities passed the order on 2.9.1997 (Annexure 14) converting the said proceeding into one under rule 43(b) of the Bihar Pension Rules and on continuation of the same, the punishment was imposed vide impugned order contained in Annexure 18. 4. In paragraph 11 of the counter affidavit it is stated that the proceeding under rule 43(b) is not a fresh proceeding as the petitioner has stated rather it is conversion of the old proceeding which was contemplated and initiated during the service period of the petitioner and was not completed upto his retirement. 5. Learned counsel for the petitioner has submitted that admittedly the charges relate to the period 3.7.1981 to 31.10.1984 while the petitioner was posted as Executive Engineer, Head Works Division No.1, Bagmatinagar, Sitamarhi. According to the learned counsel, no such proceeding initiated even in terms of rule 43(b) of the Bihar Pension Rules with respect to an event which admittedly took place much beyond four years before the institution of the proceeding. It is also submitted on behalf of the petitioner that in any view of the matter, the continuation of such proceeding initiated under rule 55 is not permissible in law without extending the service of the concerned employee in the light of the provisions contained in rule 73 of the Bihar Service Code. 6. It is also submitted on behalf of the petitioner that in any view of the matter, the continuation of such proceeding initiated under rule 55 is not permissible in law without extending the service of the concerned employee in the light of the provisions contained in rule 73 of the Bihar Service Code. 6. Learned counsel for the State has submitted that according to the decision of the Supreme Court in the case of High Court of Punjab & Haryana Vs. Amrik Singh, reported in 1995 Supp(1) SCC 321, continuation of such proceeding is permissible. 7. This Court fails to appreciate as to how the said decision of the Supreme Court is of any help to the State. The Apex Court in the said decision, relied upon the decision in the case of D. V. Kapoor vs. Union of India, reported in (1990) 4 SCC 314 , and considered the scope of rule 9 of CCS (Pension) Rules, 1972 which specifically provides that such departmental proceeding shall be deemed to be proceedings under the said Rules and shall be continued and concluded by the authority by which the proceedings have been commenced in the same manner as if the Government servant had been continued in service. No such rule dealing with the employees of the State Government has been brought to my notice. Rule 43(b) of the Bihar Pension Rules appears to be the only provision which permits the State to take such action even after the retirement of a Government servant, but such proceeding shall be in respect of an event which took place not more than four years of the initiation of such proceeding. 8. The Supreme Court in the case of State of U.P. vs. Shri Krishna Pandey, reported in (1996) 9 SCC 395 , held that departmental enquiry for embezzlement initiated more than four years after the delinquent was allowed to retire on superannuation was incompetent and not permissible in law. 9. Learned counsel for the State has not disputed that the proceeding in the present case relates to the charges for the period 3.7.1981 to 31.10.1984, while the petitioner was posted as Executive Engineer, Head Works Division No.1, Bagmatinagar, Sitamarhi. 10. Under such circumstances, I find substance in the submission of the learned counsel for the petitioner that the impugned orders cannot be sustained and they are, accordingly, quashed. 11. 10. Under such circumstances, I find substance in the submission of the learned counsel for the petitioner that the impugned orders cannot be sustained and they are, accordingly, quashed. 11. The writ petition is, thus, allowed and the respondents are directed to release the full pension of the petitioner within two weeks of the receipt/production of a copy of this order.