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2005 DIGILAW 277 (PAT)

Shyama Nand Singh v. State Of Bihar

2005-03-10

NARAYAN ROY

body2005
Judgment 1. Heard counsel for the parties. 2. This writ application is directed against the order dated 2nd August, 1999 issued vide memo no. 763 as contained in Annexure 9 whereby and whereunder following punishments have been imposed upon the petitioner......(i) withholding of entire gratuity; (ii) deduction of 10% of pension and (iv) during the period of suspension he would not be entitled for anything save and except subsistence allowances. 3. It appears from the pleadings of the parties that a departmental proceeding was initiated against the petitioner in the year 1977 for dereliction of duty and he was put under suspension. Articles of charges were framed on 16.2.1978. The matter thereafter remained pending and enquiry was not completed. In the meantime, the petitioner approached this court challenging the order of suspension in C.W.J.C. No. 2493 of 1977. The writ application was disposed of and order of suspension passed against the petitioner was quashed by this court on 18.4.1978 and during the pendency of the departmental proceeding the petitioner superannuated on 30.9.1985 and thereafter a show cause notice was given to him for initiation of a proceeding under Rule 43(b) of Bihar Pension Rules. The petitioner filed his show cause in the year 1986 but his whole gratuity and 10% of pension was withheld for which he again moved this court in C.W.J.C. No. 3261 of 1990. The writ application was disposed of and the order withholding his gratuity and pension was quashed and the authorities were directed to pass fresh orders in accordance with law after serving upon the petitioner a copy of the enquiry report giving him an opportunity to furnish his comments in the light of findings of the enquiry officer. The proceeding under Rule 43(b) of Bihar Pension Rules, however, was concluded and the order of punishment as referred to above, was passed. 4. It is submitted by Mr. The proceeding under Rule 43(b) of Bihar Pension Rules, however, was concluded and the order of punishment as referred to above, was passed. 4. It is submitted by Mr. Shahi, learned counsel for the petitioner that no evidence was led in the enquiry nor any opportunity was given to the petitioner to put forth his defence and even after initiation of a proceeding in terms of Rule 43(b) of Bihar Pension Rules, no opportunity was given to the petitioner to adduce his evidence nor any witness was examined to substantiate the charges levelled against the petitioner and, therefore entire action of the State authorities must be held to be arbitrary, unreasonable and in violation of the principles of natural justice. 5. Though a counter affidavit has been filed on behalf of respondent no. 2, no satisfactory explanation has been given as to whether witnesses were examined in presence of the petitioner to substantiate the charges. The court, faced with this situation, called for the entire records of the case which, ultimately, was produced on 25.2.2005. 6. J.C. to A.A.G. II after going through the entire records pertaining to the departmental proceeding initiated against the petitioner, could not satisfactorily reply as to whether any witness was examined in presence of the petitioner to substantiate the charges or any reasonable opportunity was given to the petitioner to put forth his defence. Relevant records were produced before me for my perusal and on perusal of it, I do not find any material to show that any evidence was led by either of the parties either in support of the charges or in denial of the same. 7. Mr. Shahi, learned counsel for the petitioner submitted that it does not appear to be a case where in the proceeding initiated in terms of Rule 55 of Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as Rules), witnesses were examined and the charges were substantiated rather it appears that the departmental proceeding remained pending before superannuation of the petitioner and only certain formalities were completed and even after superannuation of the petitioner, witnesses were not examined to substantiate the charges against him. 8. 8. It is settled by judgments that in case in a pending enquiry under Rule 55 of Rules, evidence is complete and the delinquent thereafter superannuates, the same set of evidence is used in subsequent proceeding in terms of Rule 43(b) of Bihar Pension Rules. The facts of this case, on the contrary, go to show that the charges levelled against the petitioner were never substantiated nor any reasonable opportunity was given to the petitioner to lead his evidence or to make comments on the enquiry report submitted. 9. In these backgrounds of the case, in my opinion, the order impugned as contained in Annexure 9 is not sustainable in law. 10. In the result, this application is allowed. The order as contained in Annexure 9 is set aside. The petitioner would be entitled for the consequential benefits in accordance with law.