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2004 DIGILAW 1018 (PAT)

Ram Chandra Prasad v. State Of Bihar

2004-09-23

MRIDULA MISHRA

body2004
Judgment 1. Heard learned counsel for the petitioner and the State. Also heard learned counsel for the Accountant General. 2. This application has been filed by the petitioner for a direction to the respondent to make payment of post retiral dues and also for quashing the order dated 11.7.2000 (Annexure-2) and order dated 5.7.2000 (Annexure-2) passed by respondent no. 4. By these two orders the petitioner has been awarded punishment in two departmental proceedings and it has been directed that recovery of defalcated amount should be made from the gratuity amount payable to the petitioner. 3. The petitioner retired on 30.6.2000 from the post of Superintending Engineer, Public Health Engineering Department, P.H.E. Circle, Bhagalpur. In the year 1969 he was appointed as Junior Engineer under the State Government and in the year 1977 he was promoted as Assistant Engineer. On 30.8.1994 an explanation was called for from the petitioner for some charges for the period from March, 1992 to March, 1994 without considering that the petitioner was posted in the concerned Division from 18.1.1994 to September, 1994 and, as such, he was connected with the Division only for 74 days in the financial year 1993-94 as an Executive Engineer. The petitioner sent his explanation vide letter no. 16 dated 12.1.1996 even then the departmental proceeding was initiated against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. He participated in the departmental proceeding and the enquiry officer found that the charges were not established. After retirement of the petitioner on 30.6.2000, the disciplinary authority disagreeing with the enquiry report awarded punishment to the petitioner vide resolution no. 899 dated 11.7.2000. The punishments were-(1) Recovery of Rs. 1,17,292/- at a time from the gratuity of the petitioner. (2) Punishment of censure to be recorded in the C.R. of the petitioner in the year 1993-94 and stoppage of two increments with cumulative effect. Against the aforesaid punishment the petitioner submitted his representation stating that the charges were levelled mainly against one Shailesh Kumar Sinha the then Executive Engineer, P.H.E.D., Patna East and a departmental proceeding was initiated against him also but the enquiry officer did not submit his enquiry report and Shailesh Kumar Sinha has been sanctioned his pension, gratuity vide memo no. 729 dated 30.9.1995. 4. 729 dated 30.9.1995. 4. Another departmental proceeding was also initiated against the petitioner on the basis of a report dated 22.2.1994 by the District Magistrate, Bhojpur, for the charges of unnecessary purchase of spare parts of handpumps in the year 1993-94. The petitioner participated in the departmental proceeding. The enquiry officer submitted report that no charges were proved against the petitioner. Even then disciplinary authority passed order dated 5.7.2000 rejecting the enquiry report and passed order of punishment to recover Rs. 42,041.16 from the gratuity amount of the petitioner. 5. The petitioner has assailed both these two orders contained in Annexures-2 and 3 on the ground that the orders have been passed against him after his superannuation on 30.6.2000. After his retirement on 30.6.2000, annexure-2 was passed on 11.7.2000 and annexure-3 was passed on 5.7.2000. Both the departmental proceedings were initiated under Rule 55 of the Bihar Civil Services (Classification, Control and Appeal) Rules. The proceedings were not converted under Rule 43B of the Bihar Pension Rules. As such, the orders which have been passed they are not sustainable in law. On the basis of these illegal orders the petitioner has not been paid his pension, G.P.F., leave encashment amount, gratuity and other benefits. It has also been submitted by the petitioner that during departmental proceeding he was not supplied with the copy of the vigilance report. This was sufficient ground for quashing of the entire departmental proceeding. 6. A counter-affidavit has been filed stating that the petitioner was found guilty in both the departmental proceedings and the authority has rightly ordered for punishment to the effect that the amount which has been defalcated by the petitioner should be recovered from the gratuity amount. 7. From perusal of the orders contained in annexures 2 and 3 i.e. the order awarding punishment to the petitioner in two departmental proceedings, it is apparent that though the disciplinary authority has passed an order of punishment differing with the enquiry report submitted by the enquiry officer, no reason at all has been assigned. It is also apparent that without converting the departmental proceeding into a proceeding under the Pension Rules punishment awarded to the petitioner is an act of illegality. In both the departmental proceedings the enquiry officer did not find the petitioner guilty of the charges. The charges were not proved against him. It is also apparent that without converting the departmental proceeding into a proceeding under the Pension Rules punishment awarded to the petitioner is an act of illegality. In both the departmental proceedings the enquiry officer did not find the petitioner guilty of the charges. The charges were not proved against him. In such cases, it was essential for the disciplinary authority to give specific reason for differing with the enquiry report. 8. Considering all these aspects, the orders contained in annexure-2 and 3 are hereby quashed. The matter is remitted to respondent no. 4 for reconsideration and for passing a fresh order in accordance with law. The petitioner has also filed I.A. no. 4412 of 2001 challenging the order by which his promotion has not been considered. The petitioner, if so desires, may raise this point also before the authority concerned. 9. With this observation/direction this application is disposed of.