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Patna High Court · body

2006 DIGILAW 169 (PAT)

Ram Kumar Lal v. State

2006-02-15

V.N.SINHA

body2006
Judgment 1. Heard learned counsel for the parties. 2. The petitioner who at the relevant time was holding the post of Executive Engineer in the Water Resources Department of the State Government has come to this Court challenging the notification bearing memo no. 435 dated 8.7.2004,. Annexure-11, whereunder the State Government has found him guilty of the charges levelled against him and in terms of the provisions contained in Rule 43(B) of the Bihar Pension Rules has forfeited 50 per cent of his pension amount for ever. 3. The petitioner has questioned the correctness and validity of the said notification on the ground that the same is violative of principles of natural justice as decision to withhold 50 per cent of his pensionary benefit was taken by the State Government as far back on 16.5.2003 and the second show cause notice dated 12.11.2003, Annexure-9 was issued by way of mere formality. 4. In this connection it has been submitted that the memo of charges was served on the petitioner under resolution of the State Government dated 24.5.2002 in esponse whereto he submitted his reply before the enquiry officer who having examined the memo of charges the materials produced by the Presenting Officer in support of those charges together with the written defence of the petitioner, under report dated 27.1.2003, Annexure-5 exonerated the petitioner of all the charges levelled against him which report was considered by the Commissioner and Secretary of the department on 30.4.2003 who also concurred with the enquiry report and recommended that the proceedings initiated against the petitioner be closed. The recommendation of the departmental Commissioner was considered by the Hon ble Minister of the department on 16.5.2003, Annexure-7 and the Hon ble Minister with reference to the notes of the departmental Commissioner recorded in connection with the departmental proceeding initiated against the Superintending Engineer Sri Laxmi Shankar Prasad, the immediate superior of the petitioner at the relevant time and who was also proceeded for the same charges held that the punishment already imposed on the petitioner should be maintained and the matter be disposed of accordingly. Once the order of the Minister dated 16.5.2003, Annexure-7 was passed in the file the departmental authorities thereafter made an about turn and tailor made the second show cause notice dated 12.11.2003, Annexure-9 so as to ensure compliance of the order dated 16.5.2003, Annexure-7 and served the same on the petitioner. Once the order of the Minister dated 16.5.2003, Annexure-7 was passed in the file the departmental authorities thereafter made an about turn and tailor made the second show cause notice dated 12.11.2003, Annexure-9 so as to ensure compliance of the order dated 16.5.2003, Annexure-7 and served the same on the petitioner. In response thereto the petitioner submitted reply dated 16.1.2004, Annexure-10 which was considered only with a view to complete the formality as the authorities were already under direction contained in order dated 16.5.2003 to impose the earlier punishment accordingly the authorities passed the impugned order dated 8.7.2004, Annexure-11 withholding 50 per cent of his pension. 5. Learned counsel for the petitioner with reference to the order of the Hon ble Minister dated 16.5.2003 has submitted that the second show cause notice dated 12.11.2003 is a mere formality as the decision of the Hon ble Minister was already taken on 16.5.2003 to impose the same punishment which was earlier imposed on the petitioner and in that view of the matter the impugned order should be quashed as the same is based on the earlier order of the Minister dated 16.5.2003 before which the petitioner was never asked to show cause as to why the authorities proposed to differ with the enquiry report dated 27.1.2003 which was in his favour. Learned counsel further pointed out that the notes of the departmental Commissioner recorded in the proceedings against Sri Laxmi Shankar Prasad, the then Superintending Engineer which was the basis of the order of the Hon ble Minister dated 16.5.2003, Annexure-7 has already been considered by the departmental authorities when they passed punishment order against Sri Laxmi Shankar Prasad which order has already been the subject matter of the proceedings before this Court and this Court was pleased to quash the punishment order and the order of this Court quashing the punishment order has already been affirmed by the Hon ble Supreme Court in the case of State of Bihar and Ors. V/s. Laxmi Shankar Prasad, reported in 2002(10) SCC 351 and thus the same notes which was the basis of the punishment order passed against Sri Laxmi Shankar Prasad should not be relied upon to pass and maintain the punishment order against the petitioner. 6. V/s. Laxmi Shankar Prasad, reported in 2002(10) SCC 351 and thus the same notes which was the basis of the punishment order passed against Sri Laxmi Shankar Prasad should not be relied upon to pass and maintain the punishment order against the petitioner. 6. Having heard the counsel for the parties and having perused the impugned second show cause notice dated 12.11.2003, Annexure-9 and the impugned order dated 8.7.2004, Annexure-11, I am of the view that the second show cause notice as also the impugned order dated 8.7.2004, Annexures 9 and 11 were mere formalities as the decision to impose similar punishment which was imposed earlier should be maintained was already taken on 16.5.2003 by the Hon ble Minister with reference to the notes recorded in connection with the proceeding of Sri Laxmi Shankar Prasad, the then Superintending Engineer. Once the departmental Minister had taken a decision on 16.5.2003 as it appears from Annexure-7 to impose the same punishment which was earlier imposed then thereafter to issue second show cause notice on 12.11.2003, Annexure-9 and to call for its reply and then to pass the impugned order dated 8.7.2004 was mere formality. 7. In the circumstances, the second show cause notice dated 12.11.2003, Annexure-9 and the impugned notification dated 8.7.2004 Annexure-11 are quashed, however, with liberty to the authorities to reconsider the enquiry report dated 27.1.2003, Annexure-5 in accordance with law keeping in view the fact that the punishment order made in the case of Sri Lakshmi Shankar Prasad, the Superintending Engineer of the petitioner who was also proceeded for same charges and punishment order passed in his case has already been quashed by this Court which order has already been affirmed by the Hon ble Supreme Court in the case of the State of Bihar and Ors. vs. Laxmi Shankar Prasad (supra). Consideration in the light of this order should be made within a period of three months from the date of production/ receipt of a copy of this order as the charges relate to the year 1986 and the petitioner superannuated on 31.1.1998. 8. The writ petition is allowed subject to observations and directions made above.