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2004 DIGILAW 1043 (PAT)

Jagat Kishore Sharan v. State of Bihar

2004-09-28

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JUDGMENT C.K. PRASAD, J.:-This application has been filed for quashing the order dated 6.11.2003 (Annexure-1) whereby the petitioner has been inflicted with the penalty of withholding of 50% pension. By the said order it has been further directed that a sum of Rs. 1,02,848/- shall be recovered from the retiral dues of the petitioner. 2. Shorn of unnecessary details, facts giving rise to the present application are that a departmental proceeding was initiated against the petitioner and it was alleged that although he had reached the age of superannuation and would have retired from service on 31.1.1996 but continued to serve till 13.10.1999 and withdrew salary to the tune of Rs. 1,02,048/-. It is also alleged that during this period he withdrew a sum of Rs. 17,73,550/- as drawing and disbursing officer unauthorisedly. It is not the allegation that he misappropriated this amount. 3. Petitioner filed his reply and did not deny the fact of continuing in service beyond the date of superannuation or withdrawing the amount but his plea is that because of the accident which he had met, while in service, chronic illness of his wife and dispute with his brother in regard to the property, he was disturbed and forgot the date of his retirement and continued in service beyond the date of superannuation in good faith. In the said proceeding the petitioner was held guilty and by the impugned order he has been visited with the penalty of withholding of the pension to the extent of 50% and recovery of amount of Rs. 1,02,848/- drawn by the petitioner as salary. 4. Mr. Ajit Kumar Ojha appearing on behalf of the petitioner submits that the petitioner did not deliberately continue in service after he attained the age of superannuation but on account of mental depression; because of accident, chronic illness of his wife and family dispute with his brother, respondents ought to have accepted the explanation putforth by the petitioner and should not have inflicted the punishment of withholding of pension. 5. G.P.VI, however, appearing on behalf of the respondents submits that petitioner, is a doctor and not an illiterate employee, and it is unlikely that the person of his status shall forget his date of retirement and the defence put forth by him of mental depression does not appeal to reason. 6. 5. G.P.VI, however, appearing on behalf of the respondents submits that petitioner, is a doctor and not an illiterate employee, and it is unlikely that the person of his status shall forget his date of retirement and the defence put forth by him of mental depression does not appeal to reason. 6. Having considered the rival submission, I do not find any substance in the submission of Mr. Ojha. Petitioner is a qualified doctor, he is the drawing and disbursing officer and it is expected of him that he knows his date of retirement. It seems that the petitioner continued in service even after attaining the age of superannuation as nobody objected to it but that itself will not be construed to mean that he has not committed any misconduct. Had the petitioner been an illiterate Class IV employee one would have looked into the matter differently. 7. Mr. Ojha then submits that punishment of withholding of 50% pension is disproportionate to the gravity of allegation. He submits that in the facts of the present case the recovery of the amount withdrawn by the petitioner as salary after attaining the age of superannuation is sufficient to meet the ends of justice. G.P VI, however, contends that in the facts of the present case the punishment inflicted cannot be said to be disproportionate to the gravity of allegation calling for interference by this court in exercise of writ jurisdiction. 8. Having considered the rival contention I find substance in the submission of Mr. Ojha. Petitioner has continued in service for about nine months beyond the age of superannuation. Respondents have directed for refund of the amount which the petitioner got as salary for the period subsequent to his retirement as also withholding of 50% pension. Generally speaking this Court does not interfere with the quantum of punishment while exercising its power of judicial review but at the same time it cannot be said that in no circumstance this Court can interfere with the quantum of punishment. I am of the opinion that in case the punishment inflicted is disproportionate to the gravity of allegation or, in other words shocking to the conscience of the court, nothing prevents this Court from interfering with the quantum of punishment. I am of the opinion that the quantum of punishment is disproportionate to the gravity of allegation. 9. I am of the opinion that in case the punishment inflicted is disproportionate to the gravity of allegation or, in other words shocking to the conscience of the court, nothing prevents this Court from interfering with the quantum of punishment. I am of the opinion that the quantum of punishment is disproportionate to the gravity of allegation. 9. Having found that the punishment inflicted is disproportionate to the gravity of allegation next question is as to whether. I should remit the matter back to the respondents to consider the question afresh or decide the quantum of punishment here itself. So far this question is concerned, this Court sends the matter back to the authority for decision more often but at the same time it cannot be said that this Court lacks jurisdiction to determine the quantum of punishment. Petitioner has retired in the year 1999. Departmental proceeding was initiated in the year 2002 and the petitioner was served with the memo of charge dated 16.4.2002. The excess amount paid to the petitioner has already been directed to be refunded. In view of the fact that the petitioner has retired, I am not inclined to send the matter back to the authority concerned for decision on the quantum of punishment. In the facts and circumstances of the case, I am of the opinion that withholding of two and a half percent (2½%) of the pension shall meet the ends of justice. 10. Accordingly, this application is dismissed with the aforesaid modification in the quantum of punishment. No cost.