Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 855 (PAT)

Virendra Kumar Srivastava v. State Of Bihar

2005-09-20

R.M.PRASAD

body2005
Judgment R.M.Prasad, J. 1. In this writ petition, petitioner is aggrieved by the order dated 14.5.2003, contained in Annexure-10, whereby and whereunder he has been allowed Rs. 250.00 only as officiating allowance for taking work on the post of Additional Director, Mines with effect from 1.8.1989 till his retirement on 31.5.1995 during which period he continuously discharged full responsibility and duties and further for commanding the Respondents to grant him regular promotion on the post of Additional Director, Mines from that date i.e., with effect from 1.8.1989. 2. It appears that the petitioner was kept deprived of the said promotion on account of departmental proceeding initiated against him in which final order was passed imposing punishment on 8.11.2003 by which 10% of his pension was directed to be deducted. The said order was purported to have been passed under Rule 43(b) of the Bihar Pension Rules. The petitioner challenged its validity in CWJC No. 1929 of 2004 and this Court vide order dated 1.2.2005, contained in Annexure-13 held that the order impugned therein did not comply with the provisions of Rule 43(b) of the Bihar Pension Rules, and, thus, the same was quashed. However, the Court did not comment otherwise on the power of the State to pass order u/s. 43(b) of the Bihar Pension Rules. 3. On 14.9.2005 on the prayer made on behalf of the State, the matter was adjourned for listing today at the top of the list. Meanwhile, the State authorities were directed to produce necessary consequential order pursuant to the order of this Court, contained in Annexure-13. 4. Today an application has been filed on behalf of the State in which it is stated that the order of punishment was quashed on technical ground and as such, the matter was again processed at the departmental level and it has been decided that a proceeding be started by giving document as required by the petitioner so that the matter can be again examined by a departmental proceeding. This step has been taken in view of the findings of this Court that "This Court is not commenting otherwise on the power of the State to pass order under Section 43(b)of the Bihar Pension Rules" It is further stated that for final decision in the matter, the file is being processed and is being submitted for the decision before His Excellency the Governor and this process may take two months time. 5. I am unable to appreciate the said stand of the State. The order of punishment was quashed on 1.2.2005 and it appears that till the matter was adjourned on 14.9.2005 the State had not taken any step in the matter pursuant to the aforementioned observation of this Court. Learned counsel for the petitioner submitted that the action of the State authorities in denying promotion from due date in the facts and circumstances, is mala fide, arbitrary and contrary to Rule 103 of the Bihar Service Code as it is not disputed that the work of the post of Additional Director. Mines has been taken from the petitioner during the said period continuously and not by way of stop gap arrangement. As such, according to learned counsel for the petitioner fresh plea that the matter is being submitted for the decision before His Excellency is mala fide and contrary to the principle laid down by the Supreme Court in the case of Secretary-cum-Chief Engineer, Chandigarh V/s. Hari Om Sharma and Ors. reported in -. Learned counsel further submitted that in view of the principle decided by the Supreme Court in the case of State of Bihar V/s. Md. Idris Ansari reported in -, the steps taken for initiation of proceeding now after 10 years of retirement of this petitioner is barred as the charges relate to the period 1987-88 and the State was not given any liberty to initiate the proceeding under Rule 43(b) of the Bihar Pension Rules, In fact, the Court declined to comment upon the power of the State to pass order under Rule 43(b) obviously in view of the bar under Sub-clause (ii) of Clause (a) of proviso to Rule 43(b) of the Bihar Pension Rules. 6. 6. Learned counsel for the State has not been able to satisfy this Court as to why such step has been taken only after the order was passed on 14.9.2005 by this Court when the State authorities were directed to produce necessary consequential order pursuant to the order of this Court, contained in Annexure-13. Moreover, I find substance in the submission of the learned counsel for the petitioner that on such plea the petitioner cannot be denied of his due promotion when undisputedly no fresh decision/order has been taken by the competent authority up-till-now. Apart from this, this Court finds that the earlier order (Annexure-13) did not give any liberty to the State to initiate fresh proceeding. Earlier proceeding was initiated by serving charge on 28.5.1992 i.e., while the petitioner was in service and final order was passed after 10 years on 8.11.2003, which was quashed by the High Court vide Annexure-13 without any liberty to the State to continue with the said proceeding. Earlier this Court declined to comment otherwise on the power of the State to pass order u/s. 43(b) of the Bihar Pension Rules obviously in view of the bar under Sub-clause (ii) of Clause (a) of proviso to Rule 43(b). 7. The Supreme Court in the case of State of Bihar V/s. Md. Idris Ansari (supra) has held that a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. 8. Undisputedly, the work on the post of Additional Director was taken from the petitioner from 1.8.1989 till his retirement on 31.5.1995 i.e., about six long years which in view of the principle decided by the Apex Court in the case of Secretary-cum-Chief Engineer, Chandigarh V/s. Hari Om Sharma and Ors (supra) cannot be considered as stop gap arrangement. The Supreme Court in the said case held that the Respondents had right to be considered for regular promotion. In the present case, it is not the case of the Respondents that work from the petitioner was taken out of his turn for due promotion. The Supreme Court in the said case held that the Respondents had right to be considered for regular promotion. In the present case, it is not the case of the Respondents that work from the petitioner was taken out of his turn for due promotion. Under such circumstances, in my opinion, in view of the law settled by the Apex Court, the Respondent State was obliged to consider the case of the petitioner for regular promotion of which he has been kept denied arbitrarily on lame excuse of pendency of the proceeding which also was over after quashing of the order of punishment referred to above by this Court. According to the provisions, contained in Sub-clause (ii) of Clause (a) of proviso to Rule 43(b) of the Bihar Pension Rules the proceeding can be initiated even after retirement, but, in respect of an event which took place not more than four years before the institution of such proceeding. In absence of liberty sought for/granted by this Court, the proceeding ended by quashing of the punishment order. The State obviously now is required to take fresh decision regarding initiation of proceeding with respect to the charges relating to the period 1987-88. Under such circumstances, it is not free from doubt that such initiation of proceeding is barred in view of the aforementioned provision of the Bihar Pension Rules and thus the plea that the file is being processed and is being submitted for the decision before His Excellency Governor is mala fide. 9. Accordingly, writ application is allowed. In the light of the decision of the Supreme Court in the case of Smt. P. Grover V/s. State of Haryana and Anr. reported in -, the Respondents are directed to consider the case of the petitioner for grant of salary for the post of Additional Director on which work has been taken from him from 1.8.1989 till his retirement i.e., 31.5.1995 and also for consequential fixation of his retiral dues accordingly from that day within one month from today. Further, in the facts and circumstances aforementioned and in view of the principle decided by the Apex Court in the case of Secretary-cum-Chief Engineer, Chandigarh V/s. Hari Om Sharma and Ors. (supra) the Respondent State is directed to consider the case of the petitioner for regular promotion from due date within three months from today. Further, in the facts and circumstances aforementioned and in view of the principle decided by the Apex Court in the case of Secretary-cum-Chief Engineer, Chandigarh V/s. Hari Om Sharma and Ors. (supra) the Respondent State is directed to consider the case of the petitioner for regular promotion from due date within three months from today. In view of the abovementioned order, MJC No. 697 of 2003, in which prayer is to initiate contempt proceedings against the Opposite parties for their wilful disobedience of the order dated 26.11.2002 passed in CWJC No. 9350 of 1998, whereby the Opposite parties were directed to pay the petitioner the additional remuneration to which he is entitled under Rule 103 of the Bihar Service Code, is disposed of accordingly. 10. As prayed, let a copy of this order by supplied to learned J.C. to Special P.P., Mr. A.K. Singh,