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2005 DIGILAW 515 (PAT)

Basudeo Narain Singh v. State Of Bihar

2005-05-11

NAVIN SINHA

body2005
Judgment Navin Sinha, J. 1. Heard Learned Counsel for the petitioner and the learned Counsel for the State. 2. The prayer in the present writ application is for quashing Annexure 1 dated 14.9.93 by which on charges of having accepted the supplies of sub standard Tiles contrary to the specification, from the Contractor, the petitioner, who was then posted as Assistant Engineer in the Gandak Development Division at Motihari has been visited with the twin punishments of withholding of promotion for ten years and that in the event that recovery of the amount so paid to the Contractor be not possible the petitioner would be liable to compensate the Government for the financial loss. This order would be dated 13.1.1993 while the petitioner is stated to have superannuated on 30.12.1996. 3. By an IA No. 136 of 2000, a further prayer has been made to quash Annexure 7, dated 11.12.1999, by which orders have been passed to recover 1/4th of the amount of loss caused to the Government from his salary and pensionary benefits. 4. It is not in dispute that initially a departmental proceeding was started against the petitioner on the aforesaid charge. It would be the case of the petitioner in para 7 that he did file his show cause to the memo of charges, Subsequently the proceedings were converted to one under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules dealing with the imposition of minor punishments. 5. Though there would be allegation of non-service of any show cause etc in the proceedings under Rule 55A, while the State would contend refusal of the petitioner to accept the notices and file his reply leading to a paper publication, whereafter the impugned order came to be passed, this Court does not consider it necessary to go into these aspects of the matter for the reason as detailed hereinafter. 6. The admitted position which emerges is that a proceeding under Rule 55A was started. Final orders thereupon were passed on 13.1.1993. The petitioner superannuated on 30.12.1996. On the said date he clearly want beyond the administrative and disciplinary control of the respondents. If the relationship of master and servant stood severed there will be no occasion for the respondents to pass any further orders on 11.12.1999 in pursuance of the proceeding under Rule 55A. Final orders thereupon were passed on 13.1.1993. The petitioner superannuated on 30.12.1996. On the said date he clearly want beyond the administrative and disciplinary control of the respondents. If the relationship of master and servant stood severed there will be no occasion for the respondents to pass any further orders on 11.12.1999 in pursuance of the proceeding under Rule 55A. The only recourse available to the respondents against the petitioner would be under Rule 43B of the Bihar Pension Rules if the same be applicable in law. This Court would also find that item 2 of the order of punishment dated 14.9.1993 was to the extent that the order for recovery from the petitioner was to be made in the event that the recovery from the contractor be not possible. The impugned order dated 11.12.1999 at Annexure 7 would not contain any reason displaying application of mind and consideration of the fact why the recovery from the contractor be not possible. On the contrary the reasoning therein for recovery of 1/4th of the amount from the petitioner would be completely sans Annexure 1 and be at complete variance with the same. This Court also finds substance in the submission of the petitioner that Annexure 7 was issued mechanically without application of mind in so far as on 11.12.1999 it refers to recovery to be affected from the monthly salary of the petitioner when he would have superannuated on 30.12.1996. 7. This Court does not find any substance in the submission of the respondents that the original order at Annexure 1 being dated 13.9.1993 the writ application preferred in December 1999 is barred by delay. This Court would notice that the contention of the petitioner that he had filed a show cause when the regular departmental proceeding was initiated against him, as mentional in para 7 of the writ application, has not been denied by the respondents in their counter affidavit. If there be a proceeding under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules, the respondent were only required to consider the reply already filed by the petitioner, display application of mind to the explanation furnished and pass necessary orders. If there be a proceeding under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules, the respondent were only required to consider the reply already filed by the petitioner, display application of mind to the explanation furnished and pass necessary orders. Quite apart from the same, even the impugned order at Annexure 1, would not contain any discussion or deliberation on the basis of which the respondents arrived at the conclusion of acceptance of sub standard tiles and the complicity of the petitioner in the same. Even in a proceeding under Rule 55A, the law as stated in - (State of Bihar and Ors. V/s. Lakshmi Shankar Prasad) would enjoin that in addition to a finding of guilt, the order should display consideration of the explanation furnished by the delinquent. Since the impugned order would consequentially affect his pensionary benefits in as much as Annexure 7 directs recovery of 1/4th of the alleged amount from his gratuity this Court would not uphold the objection of the respondents both with regard to delay and the fact that alternative remedy of appeal be available to the petitioner from the order under Rule 55A. 8. Another aspect of the matter is that could the respondents in a proceeding under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules impose a major punishment withholding promotion for ten years vide Annexure 1 dated 14.9.1993. The answer would clearly be in negative. 9. This Court would consider it apt to place reference on the judgment of the Supreme Court reported in - (Ram Dayal Rai V/s. Jharkhand State Electricity Board) where while dealing with deduction of 5% of pension, the Supreme Court emphasised the value of pensionary benefits to a retired employee in the evening of his life, and the irreparable loss and injury that would be caused to the retired employee. In the circumstances, this court holds that both Annexures 1 and 7 are vitiated in law. The same are accordingly set aside. The respondents would be obliged to pay to the petitioner any deductions that they may have made in pursuance of the order dated 21.12.1999 from the gratuity or other pensionary benefits within a period of three months from the date of receipt or production of a copy of this order with interest @ 9 per cent. The respondents would be obliged to pay to the petitioner any deductions that they may have made in pursuance of the order dated 21.12.1999 from the gratuity or other pensionary benefits within a period of three months from the date of receipt or production of a copy of this order with interest @ 9 per cent. if the amount be not paid within the said period it would carry an interest @ 12 per cent till payment. The writ application is accordingly allowed.