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2002 DIGILAW 786 (JHR)

State Of Bihar v. Md. Vakil

2002-07-30

TAPEN SEN, VINOD KUMAR GUPTA

body2002
JUDGMENT 1. The only point involved in this case is with respect to the maintainability and legality of the departmental proceedings instituted against the respondent-writ petitioner with respect to an event which admittedly occurred during his service. The respondent-writ petitioner retired on 30.1.1997 but much before the date of his retirement, i.e. on 12.10.1990 the departmental proceedings were initiated against him by issuance of a charge-sheet with respect to the allegations of defalcation of Government money. In terms of Rule 43(b) of the Bihar Pension Rules it was wholly permissible for the Government to continue the departmental proceedings since these had been instituted while the respondent-writ petitioner was on duty at a point when he was in service of the Government. 2. Rule 43(b) reads thus :-- "43. .............. (b) The State Government further reserved to themselves the right of withholding or withdrawing pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement ; Provided that,-- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation.--For the purposes of the rule,-- (a) 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, on such date; and (b) judicial proceedings shall be deemed to have been instituted,-- (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a Criminal Court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a Civil Court." 3. Mr. Nitesh Kumar, learned counsel appearing for the respondent has relied upon a single Bench Judgment of Patna High Court in the case of Syed Shafique Mohsin v. State of Bihar, reported in 2000 (1) PLJR 163 . 4. On going through this Judgment we respectfully find ourselves in disagreement with the view of the learned single Judge because Rule 43(b) (supra) does not at all contemplate the passing of any specific order, much less any "conversion order" with respect to the continuance of the proceedings. The only requirement of Rule 43(b) is that if the proceedings have not been instituted while the Government servant was on duty, these cannot be instituted except after the sanction of the State Government. In the present case the sanction question is not at all relevant or applicable because it is the admitted case of the parties that the proceedings were in fact instituted in the year 1990 (at a point of time when the respondent was "on duty") by the issuance of the charge-sheet against him. Actually when we look at the Explanation to Rule 43(b) (supra), we find that even therein it has clearly been mentioned that the departmental proceeding shall be deemed to have been instituted when the charge-sheet is issued to the concerned delinquent government employee. In this case, the charge-sheet having been issued at a point of time when he was in service, the departmental proceeding should be deemed to have been instituted at that very point of time and, therefore, it cannot be gainsaid that the proceedings were vitiated on any count. The view expressed by the learned single Judge of the Patna High Court therefore does not commend us to be correct in law. 5. The view expressed by the learned single Judge of the Patna High Court therefore does not commend us to be correct in law. 5. The learned single Judge therefore clearly was in error in returning his finding that the proceedings were wrongly initiated against the respondent-writ petitioner. 6. For the reasons aforesaid, we set aside the judgment of the learned single Judge, and while allowing this appeal direct that the proceedings shall be concluded in all respects against the respondent within a period of six months from today. The respondent shall be afforded opportunity of hearing and effective participation in the proceedings. The proceedings shall recommence from the stage at which these were when quashed by the impugned judgment of the learned single Judge. 7. Appeal allowed. No order as to costs.