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2007 DIGILAW 1231 (PAT)

Ganga Prasad v. State Of Bihar

2007-07-27

MIHIR KUMAR JHA

body2007
Judgment Mihir Kumar Jha, J. 1. In this writ application the petitioner, a retired Block De--velopment Officer. Kursakata Block, has assailed the correctness of the order of punishment dated 19.2.1997 whereby and whereunuer his 10% pension has been permanently withheld. 2. It is the case of the petitioner that he retired on 31.12.1992 and on that date no proceeding either departmental or criminal was pending against him. The peti-tioner, however, was even then not paid his full pension and gratuity and other retiral benefits rather on 5.8.1993 he was sanctioned only provisional pension and gratuity. After almost two years the petitioner was given a show cause notice by the State Government vide Memo No. 3(0)-5-20/91-786 dated 26.7.1995 seeking an explanation as with regard to his alleged slackness and negligence shown in the construction of Bio-Gas lab as well as in issuance of a incorrect caste certificate, illegal allotment of fund of Indira Awas under the Jawahar Rojgar Yojna and unauthorised withdrawal of provisional pension and gratuity. The petitioner, had also filed his show cause reply on 7.8.1995 as contained in Annexure-5 to the writ application but no decision was taken and communicated to him. 3. The petitioner at that stage had filed a writ appJication, C.W.J. C. No. 4676 of 1996 and this Court by an order dated 17.4.1997 had disposed of the same, directing the respondents to take a final decision in the pending proceeding against the petitioner and pass a final order within one month from the date of receipt/production of a copy of the order. It has however been submitted on behalf of the petitioner that the order dated 17.4.1997 was passed by this Court without filing of any counter-affidavit and as a result thereof the earlier order of punishment passed against the petitioner on 19.2.1997 could not be brought to the notice of this Court. Be that as it may, the petitioner appears to have been not informed of this order dated 17.4.1997 as is also apparent from the order passed in the contempt application, M.J.C. No. 1454 of 1998 disposed of on 20.11.2000 (Annexure-1) when this Court, on being informed that the petitioner had not been served any order dated 19.2.1997 disposing of his earlier proceeding, had directed the Respondents to serve a copy of the said order on him. It is only after the disposal of the contempt application and service of copy of the impugned order dated 19.2.1997, that this writ petition came to be filed on 20.11.2002. 4. Learned counsel for the petitioner contends that the order dated 19.2.1997 is unsustainable in terms of the Government Resolution No. 3014 dated 31.7.1980. According to him once the provisional pension @ 90% had already been authorised on 5.8.1993 and a period of two years having been completed on 4.8.1995, the competent authority was under obligation to sanction full and final pension and thus the decision to de ^t any amount by passing the impugned order for withholding/recovery of the 10% of his pension is per se illegal being in the teeth of the Government Resolution dated 31.7.1980. In this connection, he has placed reliance on a judgment in the case of Bhuneshwar Singh V/s. The State of Bihar, 2000 1 PLJR 435 . 5. Having examined the ratio of the aforementioned decision I find that the provision of Rule 43(b) of the Bihar Pension Rules has not at all been noticed much less taken into consideration. Therefore, the aforesaid decision which had proceeded merely on the basis of the Government decision contained in resolution No. 3014 dated 31.7.1980 without noticing and/or considering the relevant statutory provision of Bihar Pension Rules cannot be effectively used a binding precedent by the petitioner. Moreover, from the facts of this case it is also apparent that the show cause notice dated 26.7.1995 was the subject matter of the earlier writ petition and this Court did not choose to interfere with the said show cause notice and in fact directed the authorities to conclude the proceeding and pass a final order. In that view of the matter, this aspect cannot be reagitated being barred by principles of res judicata and constructive res judicata. 6. Learned counsel for the petitioner however has rightly contended that even if the issuance of show cause notice under the proviso of Rule 43(b) was permissible in view of the event taking place within four years of the institution of the proceeding, the impugned order as passed on 19.2.1997 cannot be sustained because the procedure as contemplated under Rule 43(b) has not been followed. In this regard his submission is that the proviso to Rule 43(b) of the Bihar Pension Rules which alone can be the source of power for issuance of show cause notice dated 21.9.1995 itself envisages if a proceeding had not been initiated during the provisional period of service of the State Government employee, same can be initiated and concluded only in terms of the proviso of Rule 43(b). There appears to be force in the aforementioned submission as Rule 43(b) envisages that not only the proceeding be initiated in respect of an event which took place within a period of four years but ever, the procedure for inflicting the punishment being one of the major penalty proceeding i.e. for inflicting major punishment should be strictly followed. It is however clear from the records that the petitioner was only given a show cause notice dated 21.9.1995 and thereafter the impugned order of withholding of 10% of pension had been passed. Thus, the procedure for inflicting an order of punishment of dismissal from the service against the petitioner was not at all followed which as per the provision of Rule 55 of Civil Service (Classification, Control and Appeal) Ruies require framing of charge, appointment of enquiry officer and holding of a regular departmental proceeding by adducing both oral and documentary evidence by the two sides. Consequently, it has to be held that the safeguard and mandatory conditions as prescribed under proviso of Rule 43(b) were not followed by the respondents while passing the impugned order dated 19.2.1997. 7. There is yet another reason for me to interfere with the order of punishment. The petitioners exhaustive show cause reply denying each and every charge running into five fullscape pages, as contained in Annexure-5, has been answered in the impugned order in just one line without giving any reason which by itself reflects complete non-application of mind by the authority concerned. The decision taken in the impugned order only mentions about the show cause notice and the explanation submitted by the petitioner as well as other documents available in the Government file and thereafter in a one line order it has been stated that on the examination of materials on record at the level of the State Government, it had been decided that the petitioner should be subjected to a permanent withholding/ reduction of 10% pension. Thus, in absence of any reasons, the impugned order permanently withholding the amount of pension of the petitioner is unsustainable both on fact and in law. Reference in this connection may be made to the judgment of Apex Court in the case of S.N. Mukherjee V/s. Union of India, AIR 1990 SC 1984 where in paragraph-35 it has been held that any quasi-judicial and/or administrative order must be supported by reason because that ensures not only compliance of the principles of natural justice but also affords a basis to the superior authority/court while making judicial review of such order. 8. Following the decision aforesaid, I have no option but to hold that the impugned order even otherwise is in violation of principles of natural justice. Consequently, the impugned order of punishment dated 19.2.1997 is hereby quashed and the whole matter is remitted back from the stage of the petitioner had filed his show cause or reply on 7.8.1995. It is however made clear that this Court on account of serious lapse in following the procedure in respect of some serious charges against the petitioner has to remit the matter to the Secretary of Agriculture Department and thus if the Secretary on taking into account all the material facts and circumstances is of the view that now no departmental proceeding is to be initiated, he may pass a clear order to this effect and close the chapter by directing to release balance amount of 10% pension to the petitioner. 9. The Secretary, Agriculture Department, Government of Bihar, Patna, is accordingly directed to re-examine the matter in the light of the explanation of the petitioner and if it is found that the charges against the petitioner have to be necessarily gone into by the department, a regular departmental proceeding by issuing a memo of charge should be initiated within four weeks of the receipt/production of a copy of this order and thereafter the proceeding also must be concluded within a period of four months from the date of issuance of memo of charge to the petitioner. In any event, the final order by the State Government in respect of the departmental proceeding, if at all it is decided to be initiated, must be passed within six months from the date of initiation of such proceedings. In any event, the final order by the State Government in respect of the departmental proceeding, if at all it is decided to be initiated, must be passed within six months from the date of initiation of such proceedings. In the event of non-completion of the departmental proceeding including passing of a final order in the aforementioned period, the authorities will be under obligation to release arrear of 10% of the pension amount which had been withheld by the impugned order. 10. This writ application is accordingly disposed of in the light of the aforementioned observation and direction.