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2000 DIGILAW 590 (PAT)

Chakradhar Das v. State Of Bihar

2000-04-18

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. In this writ petition petitioner is aggrieved by the order dated 3.8.1998, issued by the Under Secretary, Water Resources (Irrigation) Department, contained in Annexure 15, passed in exercise of the power under rule 43 (b) of the Bihar Pension Rules (hereinafter to be called as the Pension Rules) permanently withholding 25% of his pension and directing that for the period of his suspension, nothing other than subsistence allowance shall be paid. 2. In short, the relevant facts are that initially a departmental proceeding was initiated against the petitioner under rule 55 of the Civil Services (Classification, Control and Appeal) Rules (hereinafter to be called as the Rules) and in the said proceeding an order of punishment was passed withholding five annual increments with cumulative effect. The petitioner challenged the validity of the said order in C.W.J.C. No. 11774 of 1993. After filing of the said writ petition, learned State Counsel stated before this Court that the authority recalled the said order of punishment and issued another order whereby the penalty imposed earlier was modified vide order dated 27.6.1994 (Annexure 8). However, the said order was not produced and a Division Bench of this Court, vide order dated 7.7.1994, contained in Annexure 7, allowed the said writ petition and set aside the earlier order of punishment. However, it was left open for the authority to pass a fresh order against the petitioner, in accordance with law. Later, the order dated 27.6.1994 was issued on 23.3.1995, contained in Annexure 8, whereby while maintaining other punishment of recording of censure in his service book for the period 1992-93 and that no subsistence allowance shall be payable during the period of suspension, the order for stoppage of five annual increments with cumulative effect was modified by simple stoppage of five increments. 3. It appears that the petitioner again filed writ petition, bearing C.W.J.C. No. 12025 of 1995, challenging the validity of the said order (Annexure 8) and this Court, vide order dated 11.3.1997, contained in Annexure 10, quashed the order impugned therein with the liberty to the authority to pass a fresh reasoned order after giving opportunity to the petitioner. It was further observed therein that since the petitioner had already retired, therefore, the order should be passed without any delay and pursuant to it, the impugned order, contained in Annexure 15 has been passed. It was further observed therein that since the petitioner had already retired, therefore, the order should be passed without any delay and pursuant to it, the impugned order, contained in Annexure 15 has been passed. From the impugned order it appears that the petitioner was given a second show cause notice before passing of the said order and the same has been passed in exercise of the power under rule 43 (b) of the Pension Rules. 4. It has been submitted on behalf of the petitioner that bare perusal of the impugned order would show that the same has been passed without considering the show cause filed on behalf of the petitioner. It has further been submitted that the exercise of the power under rule 43 (b) of the Pension Rules purporting to deduct 1/4th of pension of the petitioner is not justified as the petitioner did not cause any pecuniary loss to the Government. According to the learned counsel for the petitioner, the punishment imposed against the petitioner is disproportionate to the gravity of charge for disobedience of the transfer order and, as such, the impugned order is fit to be quashed on this ground also. It was also submitted that in the facts and circumstances of this case, rule 43(b) of the Pension Rules is wholly inapplicable and in any view of the matter, the order for withholding salary of the petitioner for the period of suspension passed under rule 43(b) is not sustainable as the same could have been determined by resorting to the power under rule 97 of the Bihar Service Code only. 5. On the other hand, learned Additional Advocate General no. Ill appearing for the State and its officials submitted that though the impugned order purported to have been passed under rule 43 (b) of the Pension Rules but, in fact, it has been passed in the proceeding initiated under rule 55 of the Rules, which continued even after his superannuation in the light of various orders passed by this Court. It was also submitted by him that in view of the Full Bench decision of this Court in the case of Shambhu Saran V/s. State of Bihar, reported in 2000 (1) PLJR 665 , continuance of the proceeding initiated under rule 55 of the Rules was permissible and, thus, the impugned order does not suffer from jurisdictional error. It was also submitted by him that in view of the Full Bench decision of this Court in the case of Shambhu Saran V/s. State of Bihar, reported in 2000 (1) PLJR 665 , continuance of the proceeding initiated under rule 55 of the Rules was permissible and, thus, the impugned order does not suffer from jurisdictional error. It has further been submitted that in the light of the order of this Court in C.W.J.C. No. 12025 of 1995, the petitioner was given second show cause notice, which he submitted on 10.9.1997 and on consideration of the same both the charges for violation of the departmental orders and orders of transfer are found to have been proved and consequently the disciplinary authority has also found that the same led to causing loss to the Government. Thus, the disciplinary authority finding him guilty of gross misconduct imposed the punishment and that no illegality has been committed in passing of the impugned order. 6. This Court is unable to accept the said submissions of the learned Additional Advocate General no. III. It may be true that in the light of the earlier orders and in view of the Full Bench decision, referred to above, the disciplinary authority had the authority to record finding in the proceeding initiated before retirement and pass order of punishment under rule 43 (b) of the Pension Rules, but by now it is well settled that the order of punishment must be a self-contained speaking order and not a cryptic one. The disciplinary authority must base its conclusion on some evidence. A reference may be made to a decision of the Apex Court in the case of Nand Kishore Prasad V/s. The State of Bihar, reported in AIR 1978 S.C. 1277 (Paragraphs 18 and 24). 7. The disciplinary authority must base its conclusion on some evidence. A reference may be made to a decision of the Apex Court in the case of Nand Kishore Prasad V/s. The State of Bihar, reported in AIR 1978 S.C. 1277 (Paragraphs 18 and 24). 7. The petitioner submitted his detailed show cause on 10.9.1997, contained in Annexure 13, and further show cause on 5.3.1998, contained in Annexure 14/A, in response to the notice dated 19.1.1998 contained in Annexure 14, whereby and whereunder the petitioner has been found guilty of gross misconduct, but having regard to the fact that he had superannuated the authority directed that except the subsistence allowance, no other payment shall be payable to him and, further, called upon him to show cause as to why deduction of 1/3rd of his pension be not made, yet the disciplinary authority passed the impugned order in a cryptic way without considering the show cause or any evidence for finding the petitioner guilty of gross misconduct. As such, in my opinion, the impugned order cannot be sustained. 8. In the result, the writ petition is allowed. The impugned order, contained in Annexure 15, is quashed and the matter is remitted back to the disciplinary authority for passing fresh order in accordance with law. Having regard to the fact that the matter has been pending for quite long time, this Court directs that the disciplinary authority must pass fresh order within two months of the receipt/production of a copy of this judgment/order. In the facts and circumstances, there shall be no order as to costs.