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2002 DIGILAW 981 (PAT)

Mahendra Narain Pathak v. State Of Bihar

2002-09-10

SHIVA KIRTI SINGH

body2002
Judgment 1. Heard the parties. Petitioner was a clerk at Sikrahna in the district of East Champaran at Motihari and retired as such on 31st December, 1990. This writ petition was filed in December, 1999 when payment of pension to the petitioner was stopped by an order of District Magistrate, East Champaran, Motihari on 27th October, 1997 on the ground that petitioner and one Ram Vilas Choubey a retired veterinary doctor of Turkaulia were in unauthorised occupation over Government property. This order contained in annexure-6 was brought on record through an amendment petition filed in September, 2001 after a copy of such an order was disclosed to this Court as annexure-A to the counter affidavit of respondent nos. 2 and 3. This order was challenged subsequently through the amendment petition along with challenge to an order dated 1.11.1993, contained in annexure-2 passed by District Magistrate, East Champaran, Motihari whereby on the basis of enquiry report submitted in a detailed departmental proceeding and after considering petitioners show cause, 15% of his pension was reduced on the ground of several proved charges. By the said order it was also decided that for the period of suspension between 18th December, 1976 to 21st September, 1979 petitioner would be entitled only for subsistence allowances but the period of suspension shall be counted towards his service period for the purpose of pension etc. The order contained in annexure-2 was directed to be entered into his permanent character roll and service book. A representation against the order dated 1.11.1993 (annexure-2) had been filed before the Divisional Commissioner, Tirhut Division, Muzaffarpur on 19.10.1994. The same was submitted without proper channel and much beyond the period of six months prescribed for preferring an appeal against such order of punishment. On these grounds the representation/appeal was rejected by the Commissioner through an order dated 28.4.2000 which has also been challenged by annexing the same as annexure-5 to the amendment petition. The main ground for challenge to the order of punishment contained in annexure-2 is that proceeding initiated prior to retirement could not have been treated as a proceeding under the Bihar Pension Rules without passing of a specific order converting the proceeding under Bihar Pension Rules. The main ground for challenge to the order of punishment contained in annexure-2 is that proceeding initiated prior to retirement could not have been treated as a proceeding under the Bihar Pension Rules without passing of a specific order converting the proceeding under Bihar Pension Rules. This ground was, however, not pressed because of a Full Bench judgment of this Court in the case of Shambhu Sharan vs. The State of Bihar [ 2000(1) PLJR 665 ] much after filing of counter affidavit, through a supplementary affidavit filed in November, 2001 petitioner has tried to plead and make out a case that the departmental proceeding was vitiated because after submission of report by first enquiry officer another enquiry officer was appointed and on report of such enquiry officer order of punishment has been passed when to the knowledge of the petitioner, no charge was found proved by the enquiry officer. It has also been contended that at no point of time the enquiry report was given to the petitioner so the impugned order is illegal. 2. It is not in dispute that in the year 1976 on charge of misappropriation of government articles, besides criminal case a departmental enquiry was also initiated against the petitioner. He was placed under suspension on 18.12.76 but the suspension was subsequently revoked. The final order of punishment contained in annexure- 2 was passed after affording opportunity of show cause to the petitioner. Petitioner has not brought on record the show cause notices given to him on more than one occasion nor he has annexed a copy of his show cause pursuant to which the impugned order was passed by the District Magistrate. From his representation/memorandum of appeal before the Commissioner, which is annexure-3 to the writ petition it appears that petitioner had objected to the deduction of 15% of his pension only for the period from 1.1.1991 to 1.11.93 on the ground that reduction should be effected from the date of the order and not from the date of retirement. Besides this he had prayed for payment of salary for the period of suspension. No ground was taken in the representation as is sought to be introduced through a belated amendment petition. These grounds are not supported by materials on record and are being raised after filing of counter affidavit. 3. Besides this he had prayed for payment of salary for the period of suspension. No ground was taken in the representation as is sought to be introduced through a belated amendment petition. These grounds are not supported by materials on record and are being raised after filing of counter affidavit. 3. Considering all the facts and circumstances, this Court is of the view that petitioner had in fact, accepted the order contained in annexure-2 and he challenged the same in a casual manner after the payment of his pension was stopped on the allegation that he continues to be in unauthorised occupation of government building at Turkaulia. No prejudice has been shown on account of alleged non-furnishing of copy of enquiry report and as a fact this Court finds that petitioner is trying to assert different facts with a view to anyhow get rid of order of 1993 (annexure-2). None of the grounds raised on behalf of petitioner are found acceptable either in fact or in law and there is no illegality in the appellate order contained in annexure-5 also. With regard to appeal also petitioner has tried to raise a dispute of fact regarding date of its filing but no good ground exists to dis-believe the facts noted by the Commissioner in the order itself. Thus, this Court, finds no merit in petitioners challenge to the orders contained in annexures 2 and 5. 4. Petitioner is, undoubtedly, not getting the pension which he was getting prior to passing of order contained in annexure-6 on the allegation that he is in unauthorised occupation of Government property. Through counter affidavit as well as supplementary counter affidavit the respondents have contested petitioners assertion that the property under his occupation is a property of Bettiah Raj and not a government property. This Court finds some illegality in the procedure adopted by the respondent District Magistrate in passing the impugned order contained in annexure- 6. No doubt, continued good future conduct is a condition for receiving pension as is apparent from Rule 43 (a) of the Bihar Pension Rules but whatever pension petitioner was getting cannot be stopped without following a reasonable procedure prescribed by law or one in conformity with Rules of Natural Justice. But it does not appear to have been done before ordering for stoppage of petitioners pension. 5. But it does not appear to have been done before ordering for stoppage of petitioners pension. 5. In the facts and circumstances, the impugned order contained in annexure-6 is quashed. The matter relating to stoppage of petitioners pension is remitted back to the District Magistrate, East Champaran for a fresh decision within two months from the date of production/communication of a copy of this order and after considering petitioners representation in this regard which should be filed along with a copy of this order, the District Magistrate would be well advised to keep in mind that there is well defined procedure for eviction of encroachers from Government property or Government building which should be resorted in case petitioners defence is found to have substance so as to raise a bona fide dispute fit to be decided in an appropriate proceeding permitted by law for evicting encroachers from Government property/premises. It is made clear that till fresh order is passed or till proceedings for eviction are concluded, petitioner should be paid his pension as he was getting prior to impugned order contained in annexure-6. The writ petition is dismissed in respect of annexures 2 and 5 but is allowed in respect of annexure-6 to the afore extent.