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2002 DIGILAW 697 (PAT)

Raj Kumar Singh v. State Of Bihar

2002-07-02

P.K.DEB

body2002
Judgment P.K.Deb, J. 1. There is a chequered history of the case. Once this writ petition was allowed by a Bench of this Court on 16.2.2000 by setting aside the order of punishment imposed on the petitioner on the ground that no proceeding had been initiated under Rule 43B of the Bihar Pension Rules after supeannuation of the petitioner and as such all subsequent actions are without jurisdiction. The State of Bihar went on appeal in L.P.A. No. 597 of 2000. A Division Bench of this Court vide order dated 5.9.2001 had set aside the order of the single Bench basing on the decision of the Full Bench as reported in 2000 (1) PLJR 665 Shambu Saran V/s. The State of Bihar and Ors. that if a proceeding has been started during the service period then the same can be continued under Rule 43B of the Bihar Pension Rules even after supeannuation without any formal order (sic) being passed. But before the L.P.A. Bench it was submitted that besides that ground of jurisdiction other grounds were also there challenging the proceeding and the punishment thereof and, as such, the L.P.A. Bench had remanded the case to consider and dispose of the writ petition after giving fresh hearing according to law. 2. The admitted position remains that the petitioner was in service of Water Resources Department and retired as Executive Engineer on 30.6.1995. Before his retirement the Water Resources Department had issued a show cause notice to the petitioner on 24.5.1997 vide Annexure-1/1 with allegations that according to the inquiry report of Flying Squad and Twenty Point Committees report it was found that 1.65 lac cubit fit soil was dug in the Canal bed and for that work Rs. 10 lac as eyes money was paid to the contractors and for that excess payment along with others the petitioner was also responsible. Such work related to western Sone Canal and at the relevant time the petitioner was the Executive Engineer In-charge. In that show cause notice it was also mentioned that from that excess payment made to the contractors while Rs. 50,000.00 towards loss to the Government could be realised from the petitioner. The petitioner in response to the letter as contained in Annexure-1 sent his show cause to Respondent No. 4 on 15.8.1997 the copy of which has been annexed as Annexure-2. 50,000.00 towards loss to the Government could be realised from the petitioner. The petitioner in response to the letter as contained in Annexure-1 sent his show cause to Respondent No. 4 on 15.8.1997 the copy of which has been annexed as Annexure-2. In that letter he had requested for giving him all documents relating to the report of the Twenty Points Committee. But without complying so the impugned order dated 19.9.1997, as contained in Annexure-3 was passed inflicting punishment of realisation of Rs. 50,000.00 from the petitioner. All these processes have been done after the petitioner has superannuated. But it appears from different Annexure of the writ petition and that of the counter affidavit that while the petitioner was Executive Engineer In-charge of the Western Sone Canal, from zero mile to 4.5 mile long a work was taken up for digging soil from the bed of the Canal and for that purpose an amount of Rs. 10. 94 lakh was paid to the contractors. During the period of this service the petitioner was served with a show cause notice dated 23.11.1991 along with the charge-sheet and the petitioner had replied to that show cause notice vide annexure 6 dated 28.3.1992 and after that the department kept mum till the petitioner retired on 30.6.1995. Then on 24.5.1997 vide Annexure-1 show cause notice was issued as to why the petitioner should not be punished for realisation of Rs. 50,000.00 towards the loss to the Government and, hence, this writ petition was filed. 3. The grievances of the petitioner are in many parts. By referring to the Flying Squads report which was supplied to the petitioner, as contained in Annexure-1/1 clearly shows that no proceeding can be drawn against any of the officers except that of Junior Engineer Baleshwar Thakur and Assistant Engineer Muneshwar Prasad and it was specifically mentioned in that report "Attah Arop ke Kram me kisi vhi padhadhikari ko aropit karna sambhav nahijan patta hai." But still then on that report charges have been framed against the petitioner and show cause notice had been issued on 23.11.1991. Reply was given by the petitioner to the show cause vide Annexure-6 after receiving the report of the Flying Squad, as contained in Annexure-1/1. It was specifically mentioned in the reply to the show cause and in the Flying Squads report that no offence could be found against the petitioner. Reply was given by the petitioner to the show cause vide Annexure-6 after receiving the report of the Flying Squad, as contained in Annexure-1/1. It was specifically mentioned in the reply to the show cause and in the Flying Squads report that no offence could be found against the petitioner. For long three years the authorities sat over the same till the petitioner retired on 30.6.1995. Then again on 24.5.1997 after two years of the retirement of the petitioner, second show cause notice was issued vide Annexure-1 as to why he should not be punished and although by Annexure-2 the petitioner had filed reply to the show cause on 15.8.1999 asking for the documents of the Twenty Points Committee, the impugned order had been passed without supplying the report of the Samiti/Committee on 19.9.1997 vide Annexure-3. 4. From the side of the petitioner the following grievances have been raised. On the basis of the report of the Flying Squad no charge can be framed against the petitioner and the same has been clearly shown to the authorities vide his first show cause reply on 28.3.1992 (Annexure-6) but still then without holding any proceeding departmentally, the petitioner has been issued with second show cause notice and although by second show cause notice the petitioner had asked for certain more documents, the punishment order has been inflicted. Secondly, the grievance is that the disciplinary authorities have invented a new procedure unknown to law to punish an employee without following the legal processes and, as such, the punishment order, as contained in Annexure-3, is liable to be quashed not only on facts but also on legal points. 5. Let me first of all take up the legal aspect of the matter. For and against a delinquent employee the disciplinary authority can proceed under Rule 55A of Civil Services (Classification control and Appeal) Rules, 1930 and in such proceedings no detailed procedure for departmental proceeding is required to be followed. On the basis of the reply to the show cause the disciplinary authority can inflict punishment of minor nature. Realisation of loss to the department may not come as a major punishment and it might be a minor one. In that way, in the present proceeding if it is construed that the respondent authorities had proceeded with the petitioner under Rule 55A of the CCA. Realisation of loss to the department may not come as a major punishment and it might be a minor one. In that way, in the present proceeding if it is construed that the respondent authorities had proceeded with the petitioner under Rule 55A of the CCA. Rules then infliction of punishment could have been alright if such punishment had been awarded while the petitioner was in service. But after the petitioner had superannuated the whole scenario has been changed. Although if a proceeding is started during the service period of the employee and has not been concluded within the service period and then superannuation comes in then such proceeding can be continued construing the same to be a proceeding under Rule 43B of the Bihar Pension Rules but while proceeding under Rule 43B of the Bihar Pension Rules even if the proceedings were under Rule 55A of the CCA. Rules, the authorities must proceed with the procedure (applicable to proceedings of which an order of dismissal from services may be made). This has been clearly mentioned in Rule 43B(a) of Sub-Rule III. Thus, in the present case, even it is construed that the authorities were proceeding under Rule 55A of the CCA. Rules during the service period of the petitioner then also after his retirement they shall have to go through the detailed procedure of the disciplinary proceedings as required under Rule 55 of the CCA. Rules and other rules subsequent thereafter. In the present case, on the face of it, from Annexure-1 and Annexure-3 it is clear that no detailed departmental proceedings have been initiated at any point of time against the petitioner. The inflictment of punishment as has been done against the petitioner vide Annexure-3 could have been justified legally if the same would have been passed after the first reply to the show cause vide Annexure-6, dated 28.3.1992. But thereafter the petitioner had retired on 30.6.1995 such infliction of punishment without going through the departmental proceeding, an contained in Annexure-3 dated 19.9.1997, is definitely without jurisdiction. This has already been held by a Division Bench of this Court as reported in 2000(3) PLJR 150 State of Bihar and Ors V/s. Sirajuddin Ahmad. Thus, legally the order contained in Annexure-3 cannot be sustained. 6. Now I am coming to the factual aspect. This has already been held by a Division Bench of this Court as reported in 2000(3) PLJR 150 State of Bihar and Ors V/s. Sirajuddin Ahmad. Thus, legally the order contained in Annexure-3 cannot be sustained. 6. Now I am coming to the factual aspect. On the face of the report of the Flying Squad, as contained in Annexure-1/1, it does not appear that any imputation has been put on the petitioner rather imputation were there against the two engineers as already mentioned in the preceding paragraph. In that way, the report of the Flying Squad can in no case for proceeding against the petitioner. Even if the disciplinary authority finds on minute and close scrutiny of such Flying Squads report that the delinquent officer/petitioner can be proceeded with then also an opportunity must be given to the delinquent officer/the petitioner to get the Flying Squad personnel cross-examined regarding establishment of charges against him. On the face of it, as per the show cause notice issued vide Annexure-1, dated 24.5.1997 and the punishment order passed on 19.9.1997 vide Annexure-3 the disciplinary authority found that their case cannot stand up on the basis of the Flying Squads report and as such, they have included another alleged report of the Twenty Points Committee but that report had never been supplied before the delinquent officer i.e. the petitioner at any point of time. In disciplinary proceeding, any preliminary report either by the Flying Squad or by the Twenty Points Committee cannot be taken as it is rather the same should be subject to the cross-examination by the delinquent officer. But none of these procedures have been followed as already mentioned in the preceding paragraph. However, how the preliminary report of the Flying Squad can be used, and has been dealt in details by a Bench of this Court as reported in 2001 (3) PLJR 687 Md. Fakaruddin V/s. The State of Bihar. In that way, on factual aspect also, infliction of punishment on the petitioner vide Annexure-3 cannot be sustained. 7. Thus, the writ petition is allowed by quashing Annexure-6. It is further made clear if such amount has been collected from the pensionary benefits of the petitioner, the same should be returned forthwith by the respondent authorities along with interest 5% p.a. from the date of the due till the date of realisation. 7. Thus, the writ petition is allowed by quashing Annexure-6. It is further made clear if such amount has been collected from the pensionary benefits of the petitioner, the same should be returned forthwith by the respondent authorities along with interest 5% p.a. from the date of the due till the date of realisation. Processes must be completed within eight weeks next from the date of presentation of a copy of the order from the side of the petitioner.