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2007 DIGILAW 1185 (PAT)

Sant Prasad Singh v. State Of Bihar

2007-07-23

MIHIR KUMAR JHA

body2007
Judgment MIHIR KUMAR JHA, J. 1. In this writ application the Petitioner, who has retired as Excise Superintendent, has assailed the Order dated, 29th October, 2001, as contained in annexure-10 to the Writ Petition, whereby and whereunder his 25 per cent pension has been permanently withheld. The Petitioner by the same impugned Order has also been subjected to further punishment in the form of no payment of salary beyond the subsistence allowance for the period of suspension i.e. 24th September, 1998 to 5th July, 1999. 2. The fact, as much is necessary to be recorded for disposal of the case, lie in a very narrow compass. 3. The Petitioner, while he was working as Excise Superintendent of Saharsa and Supoul, was also made in-charge of Katihar district on 17th February, 1998. An incident took place with regard to poisonous and spurious liquor in a shop at Korha Bazar in the district of Katihar during his aforesaid tenure as Excise Superintendent, Katihar. The Petitioner for the aforesaid misconduct and dereliction of duty on his part had been initially suspended on 24th September, 1998 and thereafter, he was subjected to a departmental proceeding by Memo dated, 5th July, 1999. The Petitioner submitted his written statement of defence and thereafter the enquiry officer submitted his enquiry report on 6th December, 1999 vide Anhexure-6 to the writ application. It may be noted that there were in all five charges in the departmental proceeding and the Enquiry Officer in his Enquiry report did not hold the Petitioner guilty for any of those charges. In fact, for first two charges, the Enquiry Officer did not hold the Petitioner guilty and for the remaining three charges the Enquiry Officer did not arrive at any definite conclusion or opinion and left the matter to be decided by the disciplinary Authority. Upon receipt of the enquiry report, a second Show Cause Notice however was issued on 10th January, 2001 at a point of time when the Petitioner had already retired from service on 31st July, 2000. In the aforementioned second Show Cause Notice there is not even a whisper as to why the disciplinary Authority had chosen to differ with the finding of the enquiry officer. In the aforementioned second Show Cause Notice there is not even a whisper as to why the disciplinary Authority had chosen to differ with the finding of the enquiry officer. On the other hand, it was mentioned in the second Show Cause Notice that all the five charges were found to have been proved in the light of the findings given in the enquiry report by the enquiry officer which is apparently an error of record as the Enquiry Officer did not hold the Petitioner guilty in respect of any one of the five charges. Be that as it may, the Petitioner had submitted his reply to the second show cause and thereafter, the impugned Order dated, 29th October, 2001, as contained in Annexure-10, was passed inflicting him with a punishment of withholding his 25 per cent pension as also salary for the period of suspension. 4. Learned Counsel for the Petitioner in course of his submissions has assailed the impugned Order on several grounds but his main attack has revolved around the point that impugned Order is unsustainable on account of incurable defect its being in violation of principle of natural justice. In this context it has been further submitted by the learned Counsel that once the Petitioner was not held guilty for any of the five charges by the Enquiry Officer in the enquiry report, he could not have been punished unless he was given a notice by the disciplinary Authority containing his reasons for such difference of opinion. The learned Counsel for the Petitioner in this context has placed reliance on the Judgment of the Apex Court in the case of Narayan Mishra V/s. The State of Orissa reported in 1969 S.L.R. 657 wherein it has been held that the disciplinary Authority can definitely differ with the enquiry report but while doing so he must give a Show Cause Notice containing reason for differing with the enquiry report. In my view, the learned Counsel seems to be correct in his submissions in as much as giving such a Show Cause Notice by the disciplinary Authority would be in conformity with the principles of natural justice. In my view, the learned Counsel seems to be correct in his submissions in as much as giving such a Show Cause Notice by the disciplinary Authority would be in conformity with the principles of natural justice. In absence of affording of such an opportunity the entire set of unilateral action of disciplinary Authority by drawing a departmental proceeding with the framing of charges and passing an Order of punishment even if the charges are not found to be proved by the enquiry officer be wholly unjust and illegal. In that view of the matter, the resultant Order of punishment cannot be sustained in the eye of law. . 5. It is also evident from a bare perusal of the impugned Order that no reason whatsoever has been assigned as to how the five charges were proved against the Petitioner. The impugned Order merely recites that in view of the charges framed against the Petitioner, explanation furnished by him and finding recorded by the Enquiry Officer as also second Show Cause Notice issued to the Petitioner and its reply submitted by him, the departmental proceeding was being concluded by passing the Order of punishment of both stopping pension 25 per cent forever as well as denying him payment of salary, beyond subsistence allowance, for the period of suspension. Such an Order on the face of it cannot be sustained as the disciplinary Authority had not applied his mind and had gone to record a finding that Petitioner was guilty of the all charges framed against him even without discussing much less applying himself to the pleas of defence raised by the Petitioner in the second show cause reply. In such a situation, the impugned Order, as contained in Annexure-10 dated, 29th October, 2001, is held to be in violation of the principles of natural justice and is hereby quashed in the light of the Judgment of the Apex Court in the case of S.N. Mukherjee V/s. Union of India reported in AIR 1990 SC 1984 . 6. In such a situation, the impugned Order, as contained in Annexure-10 dated, 29th October, 2001, is held to be in violation of the principles of natural justice and is hereby quashed in the light of the Judgment of the Apex Court in the case of S.N. Mukherjee V/s. Union of India reported in AIR 1990 SC 1984 . 6. It may be further noted that even that part of the impugned Order inflicting punishment of no payment of salary to the Petitioner for the period of his suspension, beyond subsistence allowance, cannot be sustained because after his retirement from active service any punishment in a pending departmental proceeding in terms of Rule 55 Civil Services (Classification, Control and Appeal) Rules cannot be passed and such punishment must be confined to the provisions of Bihar Pension Rules. The State Government thus could have only passed an Order of punishment in withholding payment of pension/recovery of the amount of loss sustained by the Government. This view that I have taken is also supported by the decision of this Court reported in a Judgment (Bindeshwar Narain Srivastava @ Dr. Bindeshwat Narain Srivastava V/s. The State of Bihar and Ors.) of 2005 (2) PLJR 114. 7. In that view of the matter, the Respondent authorities will be under obligation to pay the full salary of the Petitioner for the period from 24th September, 1998 to 5th July, 1999 after deducting the amount of subsistence allowance already paid to him. 8. The quashing of the impugned Order of punishment, however, would not mean that the authorities will not be entitled to proceed further. The competent Authority and/or disciplinary Authority is hereby given liberty to examine the whole matter afresh and proceed further from the stage of submission of the enquiry report. The competent Authority in case, he chooses to proceed further against the Petitioner, he will first record his difference of opinion on the finding of Enquiry Officer in respect of charges and will communicate such reason(s) while issuing the second Show Cause Notice to the Petitioner and holding him prima facie guilty of all or any one of the charges. Such exercise however must be taken up and completed within four months of the date of receipt/production of a copy of this Order. After the Petitioner submits his show cause reply, final Order must be passed in the next three months. Such exercise however must be taken up and completed within four months of the date of receipt/production of a copy of this Order. After the Petitioner submits his show cause reply, final Order must be passed in the next three months. If in the ultimate outcome and in terms of the final Order the Petitioner is not found guilty, he will be entitled for payment of remaining part of his retirement dues including the amount of 25 per cent pension with arrears if any which had been withheld pursuant to the impugned Order. 9. The writ application is accordingly allowed in the light of aforementioned observation and direction. There would be however no Order as to costs.