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2000 DIGILAW 422 (PAT)

Surendra Kumar Singh v. State Of Bihar

2000-03-15

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. The petitioner has sought for issuance of appropriate writ in the nature of mandamus commanding the respondents authorities, namely, the Registrar, Co-operative Societies, Bihar, Patna (respondent no.2) to implement the order dated 18.8.1997 as contained in Annexure 16 to the writ petition. 2. It appears that before the petitioner superannuated from service on 1.1.1992 as Senior Selection Grade Co-operative Extension Officer in the Co-operative Department a departmental proceeding was initiated against him on the charge of his unauthorised absence. Meanwhile the petitioner came to this Court in C.W.J.C.No.10271 of 1992 for payment of his post retiral dues and arrears of salary. This Court vide order dated 16.7.1993 contained in Annexure 11 disposed of the said writ application with a direction to the concerned authority to issue the required sanction order in respect of the admitted dues in all different heads within 31.7.1993. The respondents were also directed to furnish the petitioner with the details of the amount sanctioned under the different heads. It was also directed that the petitioner shall be entitled to make representation in respect of the same, if he was not satisfied about the correctness of the said details of the amount. Pursuant to the said order certain payments were made to the petitioner, but the proceeding continued and in the said proceeding final order was passed on 18.8.1993 contained in Annexure 16 pursuant to which the petitioner has sought for a direction for its compliance. 3. The learned counsel for the petitioner has submitted that the proceeding was disposed of and thereafter the petitioner filed appeal which was also finally disposed of on 10.1.1996 by the Secretary, Department of Co-operation, Government of Bihar (respondent no.1) and the matter was remitted back to the Registrar, Co-operative Societies, Bihar, Patna (respondent no.2) for decision on certain points. Pursuant to the said order the Registrar, Co-operative Societies (respondent no.2) has passed the order contained in Annexure 16, wherein on consideration of various orders has found that the appellate authority regularised the period of absence of the petitioner from 10.10.1968 to 21.10.1969 by treating it on leave. Pursuant to the said order the Registrar, Co-operative Societies (respondent no.2) has passed the order contained in Annexure 16, wherein on consideration of various orders has found that the appellate authority regularised the period of absence of the petitioner from 10.10.1968 to 21.10.1969 by treating it on leave. With respect to the period of absence from 22.6.1969 to 19.9.1978 the said respondent no.2 in the light of the order dated 10.1.1996 of the Secretary, Department of Co-operation (respondent no.1) recommended for regularisation of the said period by treating it as extraordinary leave without pay and for counting of the said period for the purpose of pension and other pensionary benefits. He also noticed that vide order dated 10.3.1995 (Annexure 15) the service of the petitioner during the period 20.9.1978 to 28.3.1984 was regularised. Accordingly, for implementation of the said decision it appears that the matter was referred to the Finance Department for regularisation of the said period of absence of the petitioner in terms of Rule 76 of the Bihar Service Code and the matter regarding pensionary dues of the petitioner is pending since then for want of approval of the Finance Department. 4. In the counter affidavit filed on behalf of respondent no.2 the said facts have not been disputed. However, it has been stated therein that the period of absence of the petitioner with effect from 22.6.1969 to 19.9.1978 has been regularised as extraordinary leave which will be counted for pensionary benefits. It has been further stated that since the period of absence was more than five years, hence under Rule 76 of the Bihar Service Code the order cannot be implemented without approval of the Finance Department. It is further stated that the order passed by the said respondent no.2 was sent to the Finance Department for according approval but the Finance Department did not make approval on the plea that the order is not consistent with the Rules of the Bihar Service Code . It is further stated that in view of the opinion observed by the Finance Department the order passed by the Registrar, Co-operative Societies (respondent no.2) has become invalid and it cannot be implemented and that the Finance Department has directed the entire period of absence as unauthorised absence for which period the petitioner will not get his pay etc. 5. It is further stated that in view of the opinion observed by the Finance Department the order passed by the Registrar, Co-operative Societies (respondent no.2) has become invalid and it cannot be implemented and that the Finance Department has directed the entire period of absence as unauthorised absence for which period the petitioner will not get his pay etc. 5. This Court fails to appreciate the said stand taken in the counter affidavit filed on behalf of the said respondent no.2. Once the order was passed by him in exercise of quasi judicial power as discipilinary authority in the departmental proceeding initiated against the petitioner, validity of which was not challenged and thus was allowed to become final, the Finance Department was not legally justified in not complying with the said decision of the disciplinary authority. 6. It is true that as per clause (a) of Rule 76 of the Bihar Service Code no Government servant is to be granted leave of any kind for a continuous period exceeding five years and under clause (b) of the said Rule if the period of absence exceeds five years he shall, unless the State Government otherwise determine, be removed from service after following the procedure laid down in Civil Service (Classification, Control & Appeal) Rules and the Bihar and Orissa Subordinate Service (Disciplinary & Appeal) Rules, 1935. But this Court finds it difficult to infer from the said provision that it also debars the quasi judicial authority or the appellate authority from passing any such order as is considered to be appropriate in a disciplinary proceeding. In my opinion, under the said provision the bar is only with respect to exercise of the power on the administrative side where the Government Servant applies for leave exceeding five years, otherwise it will amount to really interfering with the quasi judicial function of the disciplinary authority and/or the appellate authority dealing with the matter where a disciplinary proceeding is initiated against the Government Servant. 7. The learned counsel for the State fairly agreed that where the order is passed by the disciplinary authority/appellate authority in exercise of quasi judicial power, the Government will be left with no option but to approve the said period of absence as decided in the said proceeding, where the State does not choose to assail the validity of the said order. In the present case admittedly the State Government has not challenged the validity of the order passed by the disciplinary authority/appellate authority and thus is bound by the said decision. 8. In my opinion, the exercise of power by the State Government or even by the Finance Department in the present matter was a mere formality and on that accout the respondents were not legally justified in withholding the payment of the pensionary dues of the petitioner. 9. Accordingly, the writ application is allowed and the respondents are directed to issue necessary sanction order for payment of the remaining dues of the petitioner, after getting the necessary formalities, if any, completed, within two weeks of the receipt/production of the copy of this order. In the circumstances of the case, however, there shall be no order as to costs.