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2000 DIGILAW 459 (PAT)

Ganauri Rajak v. State Of Bihar

2000-03-24

M.Y.EQBAL

body2000
Judgment M.Y.Eqbal, J. 1. In this writ application the petitioner has challenged the notification dated 18.5.99 as contained in Annexure 8 to the writ application, whereby orders have been passed for withholding 10% pension and also for deducting 10% of the gratuity and further ordered that the petitioner will not get any amount other than the subsistence allowance during the period of his suspension. Further prayer has been made for issuance of appropriate direction for payment of entire retirement benefits including full pension, full gratuity, provident fund, leave encashment, group insurance, arrears of salary etc. 2. Petitioners case is that he was initially appointed as Junior Engineer in 1964 and was subsequently promoted to the post of Assistant Engineer in 1974 and then Executive Engineer in 1982 and was posted at Manoharpur Road Division. It is stated that petitioner continued to work at Manoharpur till 14.7.85 as Executive Engineer and then transferred to the post of District Engineer, Jila Parishad, Saharsa and pursuant to that he handed over the charge of Executive Engineer, Road Construction Department, Manoharpur on 14.7.95. The petitioner was again promoted to the post of Superintending Engineer on 12.1.94 and the last posting of the petitioner was in the Building Construction, Circle No.2, Ranchi on 10.8.95. While the petitioner had joined in the Headquarter and was waiting for posting he received a letter dated 11.7.95 from the Department asking him to explain for the certain matters relating to the period when he was posted as Executive Engineer at Manoharpur from 7.11.82 to 14.7.85. The petitioner submitted his reply in respect of the querries made by the Department, vide letter dated 12.7.95. The petitioner was, however, suspended vide letter dated 10.10.96 and a departmental proceeding was initiated and chargesheet was issued, vide memo dated 13.1.97. The charges levelled against the petitioner were in relation to contract work alleged to have been awarded in the year 1979-80 and also allegations have been made against the petitioner relating to the period 1982 to 1985. The petitioner denied the charges and filed his show cause on 26.5.97 before the Enquiry Officer, who was the Chief Engineer of Rural Engineering Organisation, Chotanagpur, Ranchi. It is further stated that the petitioner superannuated on 30.11.97 and till date the departmental proceeding was not concluded. The petitioner denied the charges and filed his show cause on 26.5.97 before the Enquiry Officer, who was the Chief Engineer of Rural Engineering Organisation, Chotanagpur, Ranchi. It is further stated that the petitioner superannuated on 30.11.97 and till date the departmental proceeding was not concluded. However, after expiry of one year and six months from the date of superannuation, the impugned notification dated 18.5.99 imposing penalty was issued on the basis of report of the enquiry officer. 3. A counter affidavit has been filed on behalf of the respondents stating, inter alia, that a committee was formed by the Engineer in Chief, Road Construction Department, Bihar, Patna for the enquiry of works related to the construction of Salai-Manoharpur Road of Road Division, Manoharpur, Jamshedpur. The committee submitted its report dated 22.3.91 to the Government which was thoroughly examined and it was found that due to acive connivance of the officer concerned grave financial irregularities were committed in the execution of work causing heavy loss to the State Exchequer. Accordingly the petitioner was placed under suspension and a departmental proceeding was initiated against him. It is stated that after the conclusion of the departmental enquiry the enquiry report was submitted to the Government, vide letter dated 29.9.97. A photo copy of the enquiry report has been filed and annexed as Annexure-A to the counter affidavit. The respondents case is that the enquiry officer in his enquiry report exonerated the petitioner of certain charges but found him guilty of some charges namely charge nos. 2, 3 and 6. The said report was considered at Government level and it was found that the petitioner was guilty of charge nos.2 and 3 and also grave charge nos. 6 and 7. The Government, therefore, issued the impugned notification whereby the petitioner was awarded with the punishment referred to hereinabove. 4. Mr. S.B.Gadodia, learned Sr. counsel appearing for the petitioner, assailed the impugned notification as being illegal and wholly without jurisdiction. Learned counsel submitted that the respondents have no jurisdiction to pass the impugned order after the expiry of one and half years from the date of superannuation of the petitioner. Learned counsel then submitted that the impugned order is violative of principle of natural justice because neither a copy of the enquiry report was given to the petitioner nor any opportunity of hearing was given before the impugned notification was issued. Learned counsel then submitted that the impugned order is violative of principle of natural justice because neither a copy of the enquiry report was given to the petitioner nor any opportunity of hearing was given before the impugned notification was issued. Learned counsel further submitted that the impugned order is wholly without jurisdiction in view of the fact that no notice and/or any information was given to the petitioner about taking of the proceeding under the provisions of Section 43-B of the Bihar Pension Rules. Learned counsel put heavy reliance on the decision of this Court in the case of Md.Wakil V/s. State of Bihar, (1997)2 PLJR 933. 5. On the other hand, Mr. R. K. Marathia, learned GP 2, submitted that the departmental proceeding was concluded and enquiry report was submitted by the enquiry officer on 29.9.97 i.e. much before the superannuation of the petitioner and in the said enquiry report the petitioner was found guilty of some charges, hence the punishment awarded upon the petitioner is legal and justified. Learned counsel further submitted that since the departmental proceeding had been concluded before superannuation of the petitioner, hence there is no necessity to initiate a departmental proceeding under Rule 43(b) of the Bihar Pension Rules. Mr. Marathia relied upon a decision of this Court in the case of Shambhu Saran V/s. State of Bihar & ors., (2000)1 PLJR 665 . 6. Admittedly, the petitioner joined Manoharpur as an Executive Engineer and took charge on 24.1.83 and continued there upto 14.7.85. The petitioner was thereafter promoted to the post of Superintending Engineer in 1994. In 1995 the petitioner was asked to explain about the irregularities committed by him while he was posted at Manoharpur from 7.11.82 to 14.7.85 vide letter dated 12.7.95. Subsequently, a chargesheet was issued on 13.1.97 relating to the contract work alleged to have been awarded in the year 1979-80 and also relating to the period from 1982 to 1985. The enquiry officer proceeded with the departmental proceeding and submitted his report on 29.9.97. The said enquiry report was considered by the Government and it was found that the petitioner was guilty of the charges and accordingly the impugned notification was issued on 18.5.99 awarding punishment upon the petitioner. Admittedly, before the impugned notification was issued the petitioner already superannuated on 30.11.97 i.e. about one year six months before. The said enquiry report was considered by the Government and it was found that the petitioner was guilty of the charges and accordingly the impugned notification was issued on 18.5.99 awarding punishment upon the petitioner. Admittedly, before the impugned notification was issued the petitioner already superannuated on 30.11.97 i.e. about one year six months before. It has not been disputed by the respondents that after the submission of the report by the enquiry officer the petitioner was served with a copy of the enquiry report or any show cause notice was given to him to submit his explanation about the finding recorded by the enquiry officer. Admittedly the impugned order of punishment was issued after the superannuation of the petitioner. In such circumstances the only question falls for consideration is whether the impugned order of punishment issued after superannuation of the petitioner can be sustained in law on the basis of a departmental proceeding initiated 19 years back. 7. In the case of Md.Wakil (supra) a similar question fell for consideration before this Court. Relying upon the decision of the Supreme Court in the case of State of Bihar V/s. Md. Idris Ansari [ AIR 1995 SC 1853 : 1995(2) PLJR(SC)51] this Court held as under:- "It is well settled that the departmental proceeding, if not concluded by issuance of a final order, lapses on superannuation of the Government servant concerned. Once a Government servant superannuates from service, he goes beyond the disciplinary control of the Government and thereafter only such proceeding may be initiated against the concerned Government servant as expressly provided under the law/rules. In the counter affidavit, the respondents, have admitted that no fresh departmental proceeding has been initiated; rather by the impugned order the respondents decided to continue the departmental proceeding which was initiated in respect of charges levelled against the petitioner in the year 1987-88. In view of the admitted statement of the respondents, I am of the opinion that the impugned order is absolutely illegal, arbitrary, and wholly without jurisdiction. Rule 43(b) does not contemplate continuance of departmental proceeding even after superannuation in respect of charges of misconduct alleged about 9/10 years before the date when the employee was superannuated." 8. In Shambhu Saran V/s. State of Bihar (supra) the question referred to the Full Bench was whether a disciplinary proceeding already initiated will continue even after the superannuation of the employee. In Shambhu Saran V/s. State of Bihar (supra) the question referred to the Full Bench was whether a disciplinary proceeding already initiated will continue even after the superannuation of the employee. The Full Bench considering the two conflicting decisions of the Division Bench, answered the reference by holding as follows: "In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 , for the limited purpose of taking such action as provided under the said rule, even after such superannuation and for that purpose no specific or express order of the Government is necessary." 9. In the instant case admittedly the proceeding did not continue after the superannuation of the petitioner inasmuch as neither copy of the enquiry report was served upon the petitioner nor any show cause notice was given to him to submit his reply to the finding arrived at by the enquiry officer. Moreover, it is stated in the counter affidavit that the enquiry officer in his enquiry report exonerated the petitioner of certain charges but found him guilty of some charges i.e. charge nos. 2, 3 and 6. It is further stated that the said report was considered by the Government and it was found that the petitioner was not only guilty of charge nos. 2, 3 and 6 but also charge no. 7. It is, therefore, clear that so far charge no.7 is concerned, the enquiry officer exonerated the petitioner from that charge but the disciplinary authority differed with the findings as against charge no.7 and held that charge no.7 has also been proved and awarded the impugned punishment. From perusal of the memo of charge, it appears that it is the grave charge levelled against the petitioner to the effect that on account of inaction on the part of the petitioner the award of Rs. 12,10,549/- has been made rule of the court from the court of Sub Judge, Chaibasa. When the disciplinary authority differed with the findings arrived at by the enquiry officer on charge no.7 then it was mandatory upon the disciplinary authority to give opportunity to the delinquent to show cause as to why it should not be held that charge no.7 has also been proved. When the disciplinary authority differed with the findings arrived at by the enquiry officer on charge no.7 then it was mandatory upon the disciplinary authority to give opportunity to the delinquent to show cause as to why it should not be held that charge no.7 has also been proved. As noticed above, admittedly the petitioner has not been given any opportunity to submit his explanation on the finding recorded by the enquiry officer. Even assuming that no further opportunity was necessary to be given to the delinquent then in such cases the disciplinary authority is bound to record reasons while disagreeing with the findings of the enquiry officer and it is only after recording reasons it can be held that charges have been proved. There is nothing in the counter affidavit that the disciplinary authority by a reasoned order held that charge no.7 has also been proved. In the case of State of Assam V/s. Bimal Kumar Pandit ( AIR 1963 SC 1612 ) a Constitution Bench of the Apex Court has held that if the dismissing authority differs with the finding recorded by the enquiry officer, it is necessary that its provisional conclusion in that behalf should be specified in second notice and the disciplinary authority should specifically state that it differs from the finding of the enquiry officer and then indicate the nature of action proposed to be taken against him. In such circumstances, I am of the definite opinion that the law laid down by the Full Bench in Shambhu Sarans case (supra) is not at all applicable in the present case. 10. It is rather surprising that the irregularities alleged to have been committed by the petitioner during the period 1982 to 1985 in respect of a contract of the year 1979-80. The petitioner was given promotion to the post of Superintending Engineer in 1994 i.e. after 9-10 years which shows that there was no adverse (sic) against the petitioner. However, in 1996 i.e. after 11-12 years a disciplinary proceeding was initiated and ultimately one and half years after superannuation of the petitioner the impugned order of punishment was issued. 11. Having regard to the entire facts and circumstances of the case, I am therefore of the opinion that the impugned notification awarding punishment to the petitioner by withholding portion of the retirement benefits is illegal, arbitrary and wholly without jurisdiction. 12. 11. Having regard to the entire facts and circumstances of the case, I am therefore of the opinion that the impugned notification awarding punishment to the petitioner by withholding portion of the retirement benefits is illegal, arbitrary and wholly without jurisdiction. 12. In the result, this writ application is accordingly allowed and the impugned notification as contained in Annexure-8 to the writ application is quashed.