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2005 DIGILAW 681 (PAT)

Satyendra Prasad Sharma v. State Of Bihar

2005-08-03

NARAYAN ROY

body2005
Judgment 1. Heard counsel for the parties. 2. This writ application is directed against the order issued vide memo no, 1820 dated 24.3.2000 as contained in Annexure 1 whereby and whereunder the authorities in purported exercise of power under Rule 43(b) of Bihar Pension Rules (hereinafter referred to as the Rules) have directed to realise rupees seventeen lacs ten thousand from the pensionary benefit of the petitioner as he was accountable for pilferages of 380 mt, of bitumen. 3. tt is submitted by Mr. Shyama Prasad Mukherjee, learned senior counsel appearing on behalf of the petitioner that during the service tenure of the petitioner, vide order dated 31.1.1997 the respondent authorities had also directed for recovery of a sum of rupees seventeen lacs ten thousand from the petitioner. The order passed by the authorities was challenged in this court in C.W.J.C. No. 5854 of 1997. This court allowed the writ application aforesaid vide order as contained in annexure 5 on 16.12.1997 holding that the order as contained in Annexure 2 was not in accordance with law. However, this court directed the authorities to proceed afresh in the ratter in accordance with law. However, during the pendency of the departmental proceeding the petitioner superannuated with effect from 31.12.1998 and, in this view of the matter, no action can be taken in the matter in the departmental proceeding so initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as Classification Rules) but they issued the order impugned as contained in Annexure 1 for realisation of the same amount which was recovered under their earlier order in exercise of the power under Rule 43(b) of the Rules. Mr. Mukherjee, learned counsel, now submits that no opportunity whatsoever was given to the petitioner before passing of the order of punishment as contained in Annexure 1 in terms of Rule 43(b) of the Rules and, therefore, the order impugned is not sus-tainable in law. 4. A counter affidavit has been filed on behalf of the State stating therein that the impugned order has been passed in continuation of the earlier proceeding initialed against the petitioner in terms of Rule 55 of Classification Rules and, therefore, no notice was required to be served. In this regard reference has been made by Mr. 4. A counter affidavit has been filed on behalf of the State stating therein that the impugned order has been passed in continuation of the earlier proceeding initialed against the petitioner in terms of Rule 55 of Classification Rules and, therefore, no notice was required to be served. In this regard reference has been made by Mr. S.N. Pathak, learned G.R 1 appearing for the State to the case of Shambhu Saran vs. State of Bihar and Ors. reported in 2000(1) RL.J.R. 665. 5. It is true that the proceeding which was initiated prior to retirement of a Government servant in terms of Rule 55 or 55A of Classification Rules would continue even after retirement of the delinquent. This court in the case of Shambhu Saran (supra) held that no fresh order is required to be drawn for initiation of the proceeding under Rule 43(b) of the Rules in case a proceeding had already been initiated under the provisions of Classification Rules before retirement of the delinquent. So tar the question as to whether opportunity should be given to the delinquent for the proposed penalty as contemplated under Rule 43(b) of Rules is concerned, it is mandatory for the respondents to give an opportunity to the delinquent to explain as to why the proposed action should not be taken against him. 6. In the case at hand, it is almost admitted fact that no opportunity whatsoever was given to the petitioner before passing the order as contained in Annexure 1 to recover a sum of rupees seventeen thousand and odd from the petitioner. The action of the State authorities, in that view of the matter, is held to be violative of the principles of natural justice. The order impugned on that score is not sustainable in law. 7. In the result, this application is allowed. The order impugned as contained in Annexure 1 is set aside. However, the respondent authorities, if so advised, may proceed in the matter afresh in accordance with law.