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2000 DIGILAW 675 (PAT)

Mithilesh Kumar Sharma v. State Of Bihar

2000-05-04

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. In this writ petition the petitioner is aggrieved by withholding of 10% of his pension and 10% of his gratuity. 2. It appears that vide Government notification dated 15.10.1998, contained in Annexure A/3, an order has been passed only for withholding of 10% of pension pursuant to the departmental proceeding instituted against the petitioner in purported exercise of the power contained in proviso to rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules), vide Government resolution, contained in Annexure A/5 to the supplementary counter affidavit filed on behalf of respondent no.1. No order for withholding of 10% of gratuity has been brought on record on behalf of the respondents, still the same has been kept withheld though he retired from the service of the State Government long back on 28.2.1991 while posted as Director, Public Health Institute, Patna. The Government resolution initiating the aforementioned departmental proceeding was issued on 1.7.1991 i.e., after the retirement of the petitioner with respect to the charges relating to the period 28.5.1990 to 8.6.1990 when he was posted as Civil Surgeon-cum-Chief Medical Officer, Madhubani. 3. It is contended on behalf of the petitioner that before 10th July, 1994 the petitioner was not at all aware of any such Government resolution initiating departmental proceeding against him in purported exercise of the power under proviso to rule 43(b) of the Rules. As such, according to the learned counsel for petitioner, the so-called departmental proceeding instituted, vide Annexure A/5 itself was barred in view of the provisions contained in sub- clause (ii) of clause (a) of proviso to rule 43(b) of the Rules. It is further contended that as per clause (a) of the Explanation to the said proviso, for the purpose of the rule departmental proceeding is to be deemed to have been instituted when the charges framed, against the pensioner are issued to him or if the Government servant has been placed under suspension from an earlier date, on such date. Learned counsel for the petitioner has submitted that it is not the case of the respondents that the petitioner was placed under suspension from an earlier date. Learned counsel for the petitioner has submitted that it is not the case of the respondents that the petitioner was placed under suspension from an earlier date. It has been contended that bare perusal of Government resolution (Annexure A/5) shows that the same has been issued only to the Regional Deputy Director, Darbhanga Division for holding of enquiry and submitting his report, but the same has not been issued to the petitioner. Thus, according to the learned counsel, the entire so-called departmental proceeding is vitiated. Learned counsel for the State has failed to show that the said Government resolution (Annexure A/5) initiating departmental proceeding under rule 43(b) of the Rules was issued to the petitioner within four years of the alleged event relating to the charge in question. This Court, thus, finds substance in the submission of the learned counsel for the petitioner that the very initiation of the proceeding is vitiated on account of the rider provided in sub-clause (ii) of clause (a) of proviso to rule 43(b) of the Rules under which such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, can be instituted only in respect of an event which took place not more than four years before the institution of such proceedings. Clause (a) to the Explanation provides that the departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or if the Government servant has been placed under suspension from an earlier date. 4. It has rightly been submitted that it is not the case of the respondents that the petitioner was placed under suspension from an earlier date. Bare perusal of the Government resolution, contained in Annexure A/5 shows that the said resolution containing the charges framed against the petitioner was issued to the Deputy Director, Darbhanga Division and not to him. Learned counsel for the State has failed to show from the averments made in the counter affidavit that the said Government resolution was ever issued to the petitioner within four years of the events relating to the charge. Learned counsel for the State has failed to show from the averments made in the counter affidavit that the said Government resolution was ever issued to the petitioner within four years of the events relating to the charge. Under such circumstances, this Court finds that the departmental proceeding purported to have been initiated under proviso to rule 43(b) of the Rules, vide Government resolution, contained in Annexure A/5, was barred by the provisions, contained in sub-clause (ii) of clause (a) of proviso to rule 43(b) of the Rules and, thus, the impugned order of punishment is also vitiated. Moreover, learned counsel for the petitioner has also submitted that the impugned order also suffers from infirmity because it is a cryptic order and not a speaking order. This Court finds substance in the said submission of the learned counsel for the petitioner. Bare perusal of the order, contained in Annexure A/3, shows that no reason has been recorded for holding the petitioner guilty of the charge. Thus, in view of the principle decided by the Apex Court in the case of Nand Kishore Prasad vs. The State of Bihar, reported in AIR 1978 S.C. 1277 , the said order cannot be sustained. 5. Accordingly, the writ petition is allowed. The impugned order, contained in Annexure A/3, is quashed and the respondents are directed to release the remaining amount of 10% pension and 10% gratuity of the petitioner within two weeks of the receipt/production of a copy of this judgment/order. The Accountant General, Bihar, Patna (respondent no.3), who is represented by Mr. S.N. Pathak, learned Additional Standing Counsel, is directed to issue necessary authority slip within a week of the receipt of the sanction order. In the facts and circumstances, there shall be no order as to costs.