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2002 DIGILAW 1070 (JHR)

Mahabir Chaudhury v. State Of Bihar

2002-09-27

TAPEN SEN

body2002
JUDGMENT Tapen Sen, J. 1. In this writ application, the petitioner has prayed for an order commanding the respondents to pay him the difference of salary which is said to be due to him for the period 26.9.1987 to 31.1.1992, i.e. from the date of his suspension till the date of his superannuation or retirement and also to pay him his retrial benefits, including pension, gratuity, G.P.F., Group Insurance, leave encashment salary and other admissible allowances to which he may be found entitled together with statutory and penal interest. 2. The short facts which are necessary to be looked into are that the petitioner was appointed on the post of Revenue Karmchari and joined as such on 29.10.1953. On 26.9.1987, while he was posted at Satgawan under the Circle Officer, Jainagar, Koderma (respondent No. 9) he has put under suspension for irregularities committed in Settlement Case Nos. 92/85-86 and 93/85-86. Thereafter, a departmental proceeding was initiated. The petitioner has stated that since he has not been paid even suspension allowances, he did not participate in the said proceeding. Thereafter, the respondent No. 4 (Deputy Commissioner, Hazaribagh) vide order dated 6.9.1989 dismissed the petitioner with effect from 20.8.1989. 3. Being aggrieved by the aforementioned order of dismissal, the petitioner filed Service Appeal No. 116/1990 before the Commissioner, North Chotanagpur Division, Hazaribagh (respondent No. 3) and the Commissioner by his order dated 8.2.1993/10.5.1993 set aside the order of dismissal and directed to start the proceeding from the stage of appointment of Enquiry Officer. According to the petitioner, inspite of the aforementioned order passed in the year 1993, the authorities did not initiate nor re-start the proceeding till the date of filing of the writ application and consequently, after passing of the order of the Commissioner, it must be deemed that there is no proceeding pending as against the petitioner. The petitioner has stated that he also superannuated on 31.10.1992 i.e. during the pendency of the aforementioned service appeal but, he has not been paid anything till date. According to him, he has filed representations but to no avail. The petitioner has further stated that the Block Development Officer, Satgawan has also lodged an FIR against the petitioner under Section 409, Indian Penal Code but the case is still pending before the trail Magistrate, Kodarma. 4. According to him, he has filed representations but to no avail. The petitioner has further stated that the Block Development Officer, Satgawan has also lodged an FIR against the petitioner under Section 409, Indian Penal Code but the case is still pending before the trail Magistrate, Kodarma. 4. On 20.3.2002, when this case was initially taken up, the Deputy Commissioner, Koderma filed a counter affidavit in which he stated at paragraph 14 that the concerned file had been received in his office only on 14.3.2002 and therefore, he required at least six months time to dispose off the matter as per directions of the Divisional Commissioner passed in the above mentioned service appeal. In yet another counter affidavit filed on behalf of respondent No. 4 (Deputy Commissioner, Hazaribagh), it was stated at paragraph 9 that proceeding as per the order of the Commissioner, North Chhotanagpur Division, Hazaribagh could not be initiated on account of the division of the old district of Hazaribagh on 10.4.1994 and further action in the matter was to be taken by the Deputy Commissioner, Koderma as the petitioner had retired from Satgawan Anchal falling in the district of Koderma. 5. Taking into consideration the above mentioned facts, this Court without entering into the merits of the case and considering the contentions made by the parties directed the Deputy Commissioner, Koderma by order dated 20.3.2002 to look into the matter and dispose off the same after giving all reasonable opportunity of hearing to the petitioner in accordance with law but not later than six months. 6. Thereafter, a review application was filed by the petitioner being Civil Review No. 26 of 2002 wherein the petitioner stated that since he had superannuated on 31.1.1992, therefore, under the provisions of Rule 43(b) of the Bihar Pension Rules the respondents were debarred from taking action against him as, after superannuation on 31.1.1992, the relationship of master and servant ceased to exit. According to the petitioner, the submissions made in the review application was that the effect of interpretation of Rule 43(b) of the Bihar Pension Rules having not been taken into consideration, the order passed by this Court on 20.3.2002 required to be reviewed specially more so in view of the fact that after passing of the said order a departmental proceeding had been initiated as per this Courts order dated 20.3.2002 which, according to the petitioner, could not have been done in view of Rule 43(b) of Bihar Pension Rules. 7. On 9.8.2002, while hearing the aforementioned review application therefore, this Court gave time to the respondents to seek instructions and while ordering stay of the initiation of the departmental proceedings and while ordering that in the mean time the respondents cannot withhold the admissible dues payable to the petitioner, directed the matter to be placed again on 2.9.2002. Thereafter, the matter was taken up on 5.9.2002 and after hearing the submissions made by the parties the review application was allowed and the order dated 20.3.2002 was recalled. That is how, this writ application was again placed for reconsideration. 8. The learned counsel for the petitioner has submitted that after he retired on 31.10.1992, the order of the Commissioner setting aside the order of dismissal took effect and the other portion of the same order by which he directed that departmental proceeding be initiated once again from the stage of appointment of the Enquiry Officer was wrong and could not have been made because after superannuation, the relationship of master and employee came to an end and therefore, in terms of Rule 43(b) of the Bihar Pension Rules, such an order of the Commissioner was illegal. 9. The learned counsel for the petitioner argued that under the provisions of Rule 43(b) of Bihar Pension Rules, the respondents could have initiated a proceeding but only in relation to an event that took place not more than four years before the institution of such proceeding. Both the aforesaid submissions made by the learned counsel for the petitioner deserves no merit and they must be rejected. In the instant case admittedly the petitioner was put under suspension on 26.9.1987 whereafter a charge-sheet was served upon him. Both the aforesaid submissions made by the learned counsel for the petitioner deserves no merit and they must be rejected. In the instant case admittedly the petitioner was put under suspension on 26.9.1987 whereafter a charge-sheet was served upon him. He was dismissed on 20.8.1989 and in the mean time he superannuated during the pendency of service appeal on 31.10.1992 and thereafter, the Commissioner set aside the order of dismissal on 8.2.1993/10.5.1993 and directed that the departmental proceeding be reinitiated from the stage of appointment of the Enquiry Officer. Under the provisions of Rule 43(b) of Bihar Pension Rules, there is a bar to the effect that departmental proceeding if not initiated while a government servant was on duty either before retirement or during re-employment, shall not be instituted save and except with the sanction of the State Government and it shall be only in respect of an event which took place not more than four years before the institution of such proceeding. In the instant case, everything i.e. suspension, framing of charges and dismissal took effect during the time when the petitioner was in service. It is true that he superannuated on 31.1.1992 but that did not prevent the Commissioner to order for a rehearing of the matter from the stage of hearing of Enquiry Officer specially when under the explanation clause appended to Rule 43(b), it has been stated that a departmental proceeding shall be deemed to have been initiated when the charges framed against a person are issued to him. Additionally, what is important to note is that while setting aside the order of dismissal, the Commissioner took into consideration the silence on the part of the petitioner and therefore, came to a conclusion that the Deputy Commissioner, while passing the order of dismissal should have given a decision on the various charges leveled against the petitioner which, according to the Commissioner, was not done and therefore, in that background he set aside the order of the Deputy Commissioner and asked him to proceed from the stage of appointment of the Enquiry Officer. In the Counter Affidavit filed on behalf of the respondent respondent No. 4, it was stated at paragraph 9 that due to division of Hazaribagh on 10.4.1994, the matter could not be taken up and in any event, further action, if any, could only have been taken by the Deputy Commissioner, Koderma as the petitioner had retired from Satgawan. In the counter affidavit on behalf of the Deputy Commissioner, Koderma, it was clearly stated at paragraph 14 that the file had been received in his office only on 14.3.1002. 10. In that view of the matter, the petitioner cannot be allowed to raise a grievance and say that the respondents have deliberately and willfully taken no action and therefore, they cannot initiate further action. The submissions of the learned counsel for the petitioner is therefore, totally misconceived and they do not deserve any consideration. It appears that even the grievance to the effect that the enquiry has been started afresh pursuant to the earlier order of this Court passed on 20.3.2002 is also hopelessly misconceived because the order to continue with the proceeding and rehear the matter was already there in existence as ordered by the Commissioner, Hazaribagh in his order dated 8.2.1993/ 10.5.1993. 11. For the reasons stated above there is, therefore, no merit in the submissions in so far as the grievance relating to continuation of the proceedings are concerned and it is held that the respondents are justified in continuing with the proceeding strictly as per the order of the Commissioner passed on 8.2.1993/10.5.1993 which, in the facts of this case, could not be given effect to because the file were received in the office of the Deputy Commissioner, Koderma only on 14.3.2002 and the old district of Hazaribagh was truncated on 10.4.1994. The provisions of Rule 43(b) does not come to the rescue of the writ petitioner in the instant case. 12. It has, however been stated at the bar that the petitioner had not been paid any amount after retirement and that he had superannuated many years ago i.e. 31.1.1992. Consequently, the respondents are directed to immediately and forthwith release to the petitioner all the admitted dues such as gratuity, G.P.F., Group Insurance, leave encashment and other admissible allowances. They are also directed to release the admissible subsistence allowances during the period of the petitioner remained in suspension. Consequently, the respondents are directed to immediately and forthwith release to the petitioner all the admitted dues such as gratuity, G.P.F., Group Insurance, leave encashment and other admissible allowances. They are also directed to release the admissible subsistence allowances during the period of the petitioner remained in suspension. So far as the pension is concerned, the same shall await the result of the proceeding. Since the petitioner retired on 31.10.1992, it is, therefore, directed that the proceeding must be completed within a period of six months from today. Any interim order in relation to the departmental proceedings passed earlier by this Court hereby stands vacated. 12. With the aforementioned observations and directions this writ petition is disposed off.