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Patna High Court · body

2000 DIGILAW 262 (PAT)

Nawal Kishore Sinha v. State Of Bihar

2000-02-15

M.Y.EQBAL

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Judgment M.Y.Eqbal, J. 1. In this writ application, the petitioner has prayed for issuance of an appropriate direction commanding upon the respondents to pay the amount of pension, gratuity leave encashment and arrears of salary for the period 27.12.91 and 31.8.94 as the petitioner retired on 31.8.94. 2. Some undisputed facts are as under: The petitioner retired from service on 31.8.94 while he was working on the post of Executive Engineer, Water Resources Department, Advance Planning, Patna. On 27.2.91, the petitioner was put under suspension in a contemplation of a departmental proceeding while he was posted as Executive Engineer Minor Irrigation, Simdega. On 4.9.91 the petitioner was served with a charge-sheet and in pursuance thereto he filed his detailed show cause/reply. The inquiry officer proceeded with the enquiry and submitted his inquiry report on 9.3.93. On submission of the enquiry report second show-cause notice was issued by the respondents on 26.4.94 and a reply thereto was filed by the petitioner on 9.5.94. The petitioner then retired from service on 31.8.94. The petitioners further case is that before his retirement, the departmental proceeding was not concluded and it was only after expiry of long period of four years since his retirement that a show-cause notice under Rules 139(a) and (b) of the Bihar Pension Rules has been served upon him asking him to file show-cause as to why his pension be not withheld. It is worth to mention here that after retirement the petitioner was paid 90% provisional pension vide order dated 12.9.95. The petitioner represented before the authority concerned for payment of gratuity amount, leave salary as well as balance amount of salary but in spite of several representations no tiling was paid. It is contended that the respondents have no authority to withhold the retiral dues of the petitioner only on the ground of pendency of the proceeding under the Pension Rules, During the pendency of the writ application, the respondents issued order dated 19.2.99 under Rule 139(a) and (b) of the aforesaid Rules by which the petitioners pension and gratuity has been nulled down to zero. The petitioner has challenged this order also by filing amendment petition. 3. A counter-affidavit has been filed by the respondents stating, inter alia, that in the year, 1986-87, the petitioner was in-charge of construction of Ranigagh Medium Irrigation Scheme costing Rs. 16.41 lakh as Executive Engineer. The petitioner has challenged this order also by filing amendment petition. 3. A counter-affidavit has been filed by the respondents stating, inter alia, that in the year, 1986-87, the petitioner was in-charge of construction of Ranigagh Medium Irrigation Scheme costing Rs. 16.41 lakh as Executive Engineer. The work was completed in February 1987, but in the first rainy season a part of the spillway and dam was washed away on 29.8.97. The petitioner was, therefore, put under suspension vide order dated 27.2.91 and a departmental proceeding was initiated against him for the charges that the construction of the Dam was not according to the sanctioned drawing and specification. After examination of the report, the Government found the petitioner guilty of other charges also and, as such, a second show-cause was issued as to why he be not dismissed for grave misconduct and pecuniary loss caused to the Government in the construction of Ranighagh Medium Scheme. The reply of the second show-cause was received on 9.5.94 which was under consideration of the Government but in the meantime, the petitioner superannuated on 31.8.94 and the order of dismissal could not be issued. Hence, it was decided to award him equivalent punishment under the Pension Rules because his service was not at all satisfactory and he had caused pecuniary loss to the Government. Accordingly, pension and gratuity payable to the petitioner was finalised at zero after giving him opportunity of filing show-cause under the Pension Rules. The petitioner has been allowed to receive other retiral benefits, namely, GPF amount and leave encashment equivalent to unutilised earned leave. The respondents, therefore, contended that in the facts of the case the order passed by the respondents is neither arbitrary nor in violation of the principles of natural justice. 4. Mr. A.K. Sinha, learned Sr. Counsel assailed the impugned order dated 19.12.99 as contained in Annexure 5 to the writ application as being illegal and wholly without jurisdiction. Earned Counsel firstly submitted that the respondents-authority have no jurisdiction to pass the impugned order under Rule 139(a) and (b) of the said Rules. According to the learned Counsel, the word pension includes gratuity also and it cannot be nulled down to zero in an arbitrary manner under the aforementioned Rules. Earned Counsel firstly submitted that the respondents-authority have no jurisdiction to pass the impugned order under Rule 139(a) and (b) of the said Rules. According to the learned Counsel, the word pension includes gratuity also and it cannot be nulled down to zero in an arbitrary manner under the aforementioned Rules. Earned Counsel then submitted that while the petitioner was in service, no adverse remark was ever communicated to him and no departmental proceeding was ever initiated against him except the instant one and, therefore, the aforesaid Rule cannot be made applicable in the case of the petitioner as admittedly, the service of the petitioner was not unsatisfactory throughout. Learned Counsel further submitted that the charges were not proved because the second show cause/reply filed by the petitioner was not rejected nor the Disciplinary authority, on the proof of alleged charges, passed any final order while the petitioner was in service. Learned Counsel further drawn my attention to the enquiry report and submitted that even the charges have not been proved in the departmental proceeding. 5. Admittedly in 1986-87, the petitioner was in-charge of construction of Ranighagh Medium Irrigation Scheme which was completed in 1987 and in the very first rainy season a part of the spillway and dam was washed away on 29.8.97. The petitioner was immediately put under suspension and a departmental proceeding was initiated against him for the charges, inter alia, that the construction was not done according to sanctioned drawing and specification. 6. From perusal of the inquiry report (Annexure 4), it appears that the inquiry officer, after considering the entire facts and evidence produced before him came to the conclusion that the petitioner was equally responsible along with the Assistant Engineer for not following the sanctioned drawing for the construction. The inquiry officer also held that the petitioner was not directly responsible for using less quantity of cement in the construction of the scheme because he was not supposed to get the work done in his presence. It is, therefore, clear that the inquiry officer has not come to the conclusion that the charges have been totally proved against the petitioner but he came to the conclusion that the petitioner was equally responsible for non-execution of the work in accordance with the sanctioned plan. It is, therefore, clear that the inquiry officer has not come to the conclusion that the charges have been totally proved against the petitioner but he came to the conclusion that the petitioner was equally responsible for non-execution of the work in accordance with the sanctioned plan. Although after submission of the inquiry report, a second show-cause notice was issued and served on the petitioner who filed his reply/show cause but no final order was passed. The respondents, therefore, proceeded against the petitioner under the Pension Rules and that too after about four years from the date of his superannuation. 7. From perusal of the impugned order, it appears that the show cause/reply to the notice issued under Rule 139(a) and (b) was submitted by the petitioner but according to the respondents, the said show-cause was not submitted within time allowed to the petitioner. The respondents, therefore, passed the impugned order by which the pension and gratuity of the petitioner has been nulled down to zero. 8. After having heard the earned Counsel for the parties and after going through the facts and circumstances of the case, I do not find any illegality in the proceeding initiated by the respondents under the Pension Rules particularly under Rule 139(a) and (b) of the said Rules but the decision taken by the respondents in the impugned order cannot be sustained in law for the reason that the show-cause submitted by the petitioner has not been considered nor any reason has been shown rejecting the show-cause of the petitioner, if at all considered by the respondents Having regard to the finding recorded by the inquiry officer with regard to the charges levelled against the petitioner, the respondents ought to have considered for awarding proportionate punishment to the petitioner instead of nulling down the entire pension and gratuity payable to the petitioner to zero. The matter, in my view, needs reconsideration by the respondents-authority. 9. This writ application is, therefore, allowed and the impugned order dated 19.2.99 as contained in annexure 5 is quashed. The matter is remitted back to the respondent-authority to pass a fresh order after taking into consideration the show-cause filed by the petitioner and also the inquiry report submitted by the Inquiry Officer in the departmental proceeding and in the light of the direction and observations made in this order.