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2004 DIGILAW 1108 (PAT)

Asha Sinha v. State Of Bihar

2004-10-15

MRIDULA MISHRA

body2004
Judgment Mridula Mishra, J. 1. This application was initially filed by one Arun Kumar Sinha, who retired on 31.7.2001 from the post of Executive Engineer. The prayer of the petitioner was for commanding the respondents to pay all retiral benefits including pension, provident fund, gratuity and leave encashment as also for payment of arrears of full salary for the period of suspension from 7.7.1994 to 31.7.2001 along with statutory and penal interest. Further prayer of the petitioner was to quash the order bearing Memo No. 40 dated 14.1.2002 (Annexure-5) whereby the petitioner was directed to file second show cause in pursuant to the purported punishment passed under Rule 43 (b) of the Bihar Pension Rules. 2. The original petitioner died during the pendency of this application and IA No. 4603 of 2002 was filed by his widow namely Asha Sinha for substituting her name in the category of petitioner, on account of the death of her husband. It was also stated in the IA petition that she has been authorised by all other legal heirs for prosecuting this case. The IA application was allowed by order dated 8.10.2002 and Asha Sinha was substituted as petitioner in this case. 3. The husband of the petitioner during his service was suspended on 7.3.1994 in respect of certain works done by him during the year 1990-91 while he was posted as Executive Engineer, Faludih Raight Main Canal Division No. II, Musabani, West Singhbhurn. A departmental proceeding under Rule 55 of the Bihar Civil Service (Classification Control & Appeal) Rules was initiated against the husband of the petitioner. The enquiry officer after considering the reply of the husband of the petitioner and other materials available on the record did not find him guilty of the charges levelled against him and submitted enquiry report to the disciplinary authority. A second show cause notice proposing two punishments namely punishment for dismissal from service and non payment of any salary during the suspension period except subsistence allowance was issued and in compliance to the second show cause notice the original petitioner filed his reply to the second show cause notice which was considered at the government level and file was sent to Bihar Public Service Commission under Letter No. 1122 dated 12.6.2001 for its concurrence. The BPSC sought for some necessary information and documents which were made available to BPSC under Letter No. 1553 dated 22.8.2001. The BPSC sought for some necessary information and documents which were made available to BPSC under Letter No. 1553 dated 22.8.2001. While the matter was pending before the B.P.S.C. the original petitioner superannuated with effect from 31.11.2001 and the departmental proceeding remained unconcluded during his service period. The proceeding was converted under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules) and accordingly second show cause notice was issued under Memo No. 40 dated 14.1.2002 (Annexure-5). The original petitioner challenged Annexure-5 and also made prayer for payment of his pensionary benefits on the ground that the order dated 14.1.2002 Annexure-5 is illegal as the respondents authorities have no authority to convert the departmental proceeding in a proceeding under Rule 43(b) of the Rules with regard to an occurrence which took place about 17-18 years ago. He further challenged the proceeding u/s. 43(b) of the Rules on the ground that the charges framed against him clearly indicated it to be a case of irregularity. The enquiry officer did not find him guilty of any charge, the department failed to establish any of the charges in course of departmental proceeding before enquiry officer. Even the B.P.S.C. did not agree with the proposal of disciplinary authority for taking any harsh action and punishment against him. There is no allegation of any financial irregularity against him, as such the ingredient for initiating proceeding under Rule 43 (b) of the Pension Rules is missing and the conversion of the proceeding under Rule 43(b) is arbitrary and misuse of the power vested in the authority concerned. 4. A counter affidavit has been filed by respondent nos. 2 to 4 wherein it has been stated that after considering the enquiry report at the government level it was found that the original petitioner was guilty of the charges levelled against him and accordingly second show cause notice proposing two punishments namely punishment for dismissal from service and also that nothing should be paid to him for the period of suspension except subsistence allowance was issued. The petitioner also filed his show cause which was duly considered at government level and proposed punishment was approved. The concurrence of the B.P.S.C. was sought as some documents were called for by B.P.S.C. and the petitioner retired during this period on 31.7.2001 as such the aforesaid proceeding remained unconcluded. The petitioner also filed his show cause which was duly considered at government level and proposed punishment was approved. The concurrence of the B.P.S.C. was sought as some documents were called for by B.P.S.C. and the petitioner retired during this period on 31.7.2001 as such the aforesaid proceeding remained unconcluded. The proceeding was converted in a proceeding under Rule 43(b) of the Pension Rules and second show cause notice was issued to the petitioner. There is nothing illegal or arbitrary in the action of the government. 5. During the pendency of this application the original petitioner died on 19.7.2002 and present petitioner was substituted in his place. The present petitioner has filed I.A. No. 1730 of 2004 for amending the prayer portion in the writ application and for making additional prayer for quashing the order contained in Memo No. 436 dated 22.4.2002 Annexure-7, by which the order of punishment has been awarded and payment of pension has been stopped on permanent basis and further it has been ordered that the full salary for the period of suspension will be withheld. This order has been challenged on the ground that the respondent State has no power to withhold the salary of a government servant under the provisions of Rule 43(b) of pension Rules. The proceeding under Rule 43(b) itself was illegal because there was no charge to the effect that Late Arun Kumar Sinha was guilty of grave misconduct and has caused pecuniary loss to the government by misconduct or negligence during his service. Since the essential ingredient for initiating and continuing proceeding under Rule 43(b) itself is missing, entire proceeding as well as the order of punishment is fit to be quashed. No fresh charge was framed which is the requirement for initiating a proceeding under Rule 43(b). This is another illegality making the entire proceeding illegal. In the counter affidavit it has been stated that so far payment of retrial, benefits are concerned the original petitioner was initially given 90% of his provisional pension, but it has now been stopped of account of the order of punishment. The pension includes the gratuity as such he is not entitled to get his gratuity amount in view of sec. 27 of the Bihar Pension Rules. The pension includes the gratuity as such he is not entitled to get his gratuity amount in view of sec. 27 of the Bihar Pension Rules. So far the payment of G.P.F. is concerned, it has already been sanctioned by the department and the Director, G.P.F. has been requested to issue G.P.F. payment order in favour of the present petitioner. The leave encashment has not been sanctioned as there is still one proceeding pending against the husband of the petitioner in which final order is required to be passed. It has also been stated that as soon as the pending proceeding is concluded the amount will be sanctioned in accordance with law. The group insurance amount has already been paid to the petitioner. 6. The petitioner has placed reliance in the case of Md. Fakhruddin V/s. The State of Bihar and Ors., 2001 (3) BLJR 1796 and in the case of Chandreshwar Prasad Sinha V/s. State of Bihar and Anr., 2001 (9) SCC 369 in which it has been held that no deduction from pensionary benefits is permissible alleging pecuniary loss to government when no charges was framed to that effect in the departmental enquiry. In 2001 (9) SCC 369 it has been held that when there has not been any determination of loss alleged to have been suffered by the State in that case the order issued to the appellant reducing his pension by 50% was bad in law. In the present case the charges which have been framed against the petitioner and the report of the enquiry officer with respect to those charges indicate that there is no allegation that the petitioner has caused any pecuniary loss to the State on account of his negligence or grave misconduct. Simple allegation was that though work was done, and completed, it was done by committing irregularly. The total work was bifurcated in small units and the work was done on that basis without inviting tenders. 7. Simple allegation was that though work was done, and completed, it was done by committing irregularly. The total work was bifurcated in small units and the work was done on that basis without inviting tenders. 7. For initiating a proceeding under Rule 43(b) of the Bihar Pension Rules, there must be charge alleging pecuniary loss to the government and the same must be proved unless the employee concerned is found guilty of misconduct and to have caused pecuniary loss to the government, no order of punishment for withholding or withdrawing pension or any part of it permanently or for specified period or for recovery from the pension of whole or part of pecuniary loss can be passed. In the present case no charge was framed alleging pecuniary loss to the government and it has not been proved that State has been suffered any pecuniary loss on account of grave misconduct or negligence of the petitioner. In the punishment order also it has not been stated in specific terms. Since no such charge was framed against the petitioner in the proceeding as such he cannot be awarded punishment for recovery from his pension of the pecuniary loss suffered by the State. It is also apparent that the alleged occurrence is of the year 1984-85 as such a proceeding could not have been initiated against the petitioner u/s. 43(b) of the Bihar Pension Rules for any occurrence after 4 years of the occurrence. On consideration, of the entire material it can be held to be a case of irregularity for which the proceeding under Rule 43(b) is not permissible under the law. 8. In the facts and circumstances of the case, the order contained in Annexure-5 as well as Annexure-7 is quashed and the respondents are directed to make payment of entire retiral dues of Late husband of the petitioner within one month from the date of communication/production of a copy of this order. They are further directed to make payment of family pension as well as arrears of family pension to the petitioner. The salary for the suspension period should also be paid to the petitioner. 9. With the aforesaid direction/observations, this writ application is disposed of.