Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 693 (PAT)

Md. Fakhruddin v. State of Bihar

2001-08-04

SHIVA KIRTI SINGH

body2001
JUDGMENT SHIVA KIRTI SINGH, J.:- The prayer made in this writ application is to quash the impugned order contained in Annexure-1 dated 30.3.2001 by which a punishment of withholding 10% of pension for a period of 1wo years has been awarded to the petitioner, who is a retired Superintending Engineer of the Department of Water Resources, Government of Bihar. 2. The relevant facts for decision in this case are that petitioner took charge as Superintending Engineer in Eastern Kosi Embankment Circle, Saharsa on 7.6.1996 and continued in charge till 3.2.1997. Thereafter, in April 1998 a Flying squad inspected some of the work sites which were previously under the charge of the petitioner during the periods mentioned above and made a report. On that basis on 12.8.1998 a show cause notice was given to the petitioner, a copy whereof has been annexed as Annexure-3. The charge pointed out in the show cause notice was to the effect that 13 estimates had remained pending and were forwarded to the Chief Engineer on 18.2.1996 after delay and that petitioner had not made sufficient inspection. Thus, the substance of the allegation against the petitioner right from the beginning is that he caused delay in sending the estimates and was indifferent in his duties. Petitioner submitted his show cause on 18.8.1998 and superannuated from service on 31.1.1999. thereafter, the proceeding was converted into one under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as 'the Rules') through Annexure-5 dated 25.2.1999. Ninty per cent of pension of the petitioner was released and 10% was temporarily withheld on account of pendency of proceeding. 3. On the basis of show cause notice and petitioner's reply, an order of punishment dated 17.8.1999 was passed under Rule 43(b) of the Rules whereby 10% of the pension was withheld for all times. A similar order was passed on 15.10.1999 under Rule 139 of the Rules. Both the aforesaid orders were challenged by the petitioner through writ petition bearing CWJC No. 7068 of 1999 which was disposed of by order dated 29.2.2000 (Annexure-11). This Court quashed the orders of punishment and remitted the matter for re-enquiry and final disposal in accordance with law within a period of three months. Thereafter, charges to the same effect, as noticed above, were served upon the petitioner through Annexure-12 dated 2.5.2000 and an enquiry officer was appointed to hold enquiry. This Court quashed the orders of punishment and remitted the matter for re-enquiry and final disposal in accordance with law within a period of three months. Thereafter, charges to the same effect, as noticed above, were served upon the petitioner through Annexure-12 dated 2.5.2000 and an enquiry officer was appointed to hold enquiry. Petitioner denied the charges through his reply dated 15.5.2000. Through a letter dated 25.2.2000 (Annexure-14) the enquiry officer made certain queries from the petitioner to which he submitted his reply. Thereafter, a second show cause notice dated 14.10.2000 was served upon the petitioner along with a copy of enquiry report dated 30.5.2000. Petitioner gave his reply on 4.11.2000 and thereafter the impugned order was passed on 30.3.2001. 4. On behalf of the petitioner two submissions have been advanced to assail the correctness and legality of impugned order dated 30.3.2001. Firstly, it has been submitted that in view of proviso to Rule 43(b) of the Rules, the procedure of the enquiry had to be one on which an order of dismissal could have been passed. In other words, the procedure had to be one envisaged under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and not under Rule 55A because an order like dismissal could only be passed after following the procedure laid down in Rule 55. According to learned counsel for the petitioner, a perusal of the enquiry report itself shows that no evidence was led by the authorities to support the allegation contained in the report of the Flying Squad and the finding in the enquiry to the effect that petitioner was responsible for delay in despatching six estimates to the Chief Engineer was based merely upon a perusal of the report given by the Flying Squad which was the basis of allegation which had been denied by the petitioner in his show cause. The second submission is that under Rule 43(b) of the Rules any order for withholding or withdrawing a pension or any part of which, permanently or for a specified period or for recovery from a pension of the whole or part of any pecuniary loss caused to the Government can be passed only if the concerned employee is found to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence and such finding must be in a departmental or judicial proceeding. According to learned counsel for the petitioner, neither the enquiry officer nor the disciplinary authority have found the petitioner guilty of grave misconduct or of having caused pecuniary loss to Government by misconduct or negligence. 5. After going through the materials on record including the enquiry report, this Court finds that even after earlier order of this Court contained in Annexure-11 dated 29.2.2000, the enquiry officer as well as disciplinary authority did not correctly appreciate the requirement of Rule 43(b) of the Rules and did not apply the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. A minor punishment is permissible to be awarded under Rule 55A only after giving an opportunity of show cause but for passing any adverse order under Rule 43(b) of the Rules, the procedure adopted must be that of Rule 55 of Civil Services (Classification, Control and Appeal) Rules. The said Rule 55 provides for an elaborate enquiry in case the delinquent denies the charges. The Evidence must be led to prove the charges which have been denied and the delinquent should be given a right to cross examine any oral evidence and also to lead his own evidence in rebuttal. Under the scheme of Rule 55 a report like that of Flying Squad can only be treated as basis of the charge framed and once the charges are denied, the report itself cannot be treated as evidence sufficient to prove the allegation. Some officer associated with the Flying Squad or with the working of the department should have been examined to support the charge. Clearly, that has not been done in this case. 5. So far as the other submission on behalf of the petitioner is concerned, the same also appears to be justified. There was no question of finding the petitioner guilty of grave misconduct or of having caused pecuniary loss to the Government by misconduct or negligence when there was no charge to that effect. The authorities should have been careful in framing the charge even if they were of the view that petitioner has committed a grave misconduct or has caused pecuniary loss to the Government. 6. In the aforesaid facts and circumstances, this Court finds no alternative but to quash the impugned order contained in Annexure-1. The authorities should have been careful in framing the charge even if they were of the view that petitioner has committed a grave misconduct or has caused pecuniary loss to the Government. 6. In the aforesaid facts and circumstances, this Court finds no alternative but to quash the impugned order contained in Annexure-1. The writ application is accordingly allowed and the respondents are directed to release the amount of pension which may have been withheld so far on account of the impugned order forthwith and in any case, within three months from the date of production/communication of a copy of this order. 7. In the facts of the case, there, shall be no order as to costs.