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2007 DIGILAW 1316 (PAT)

Chakradhar Das v. State Of Bihar

2007-08-09

J.N.SINGH

body2007
Judgment J.N.SINGH, J. 1. Heard learned Counsel for the parties. 2. This writ application has been filed for quashing of the Order as contained in Annexure-13 dated, 1st August, 2000, by which, pursuant to the liberty granted by this Court in the earlier writ application, punishment Order has been passed afresh against the Petitioner imposing punishment of withholding 25 per cent pension permanently and depriving the Petitioner from any payment of the suspension period except the subsistence allowance. 3. The facts of the case are that on account of non-compliance and disobedience of the transfer Order Petitioner was put under suspension. Thereafter, departmental proceeding was initiated against the Petitioner and the Petitioner was served with a charge and Show Cause Notice. Petitioner filed his show cause in which he denied the charges and gave explanations with regard to his absence from duty. After consideration of the show cause of the Petitioner, punishment Order was passed against him withholding five annual increments with cumulative effect. The said Order was challenged by the Petitioner in CWJC No. 11774/1993. During pendency of the said writ application a submission was made by the then learned Counsel for the State that the punishment Order of the Petitioner was modified. However, a copy of the said modification in the punishment Order was not placed on record and therefore, the impugned Order imposing a punishment of five annual increments with cumulative effect was quashed by this Court by Order dated, 7th July, 1994. However, liberty was granted to the authorities to pass fresh Orders in accordance with law. 4. It appears that a fresh Order was passed by the authorities by Order dated, 27th June, 1994 as contained in Memo dated, 23rd March, 1995 (Annexure-8 to the writ application) imposing punishment of withholding of five increments without cumulative effect. The said Order was again challenged by the Petitioner in CWJC No. 12025 of 1995. In that writ application this Court found that the impugned Order dated, 27th June, 1994 was passed without giving any opportunity to the Petitioner and, therefore, by Order dated, 11th March, 1997 the writ application was disposed of and the impugned Order was quashed and liberty was given to the authorities to pass fresh reasoned Orders after giving opportunity to the Petitioner. As the Petitioner had retired till that date a direction was issued to the Respondents to pass Orders without any delay. As the Petitioner had retired till that date a direction was issued to the Respondents to pass Orders without any delay. 5. As Petitioner had retired during the pendency of the said writ application, hence after receipt of the Order passed by this Court in CWJC No. 12025 of 1995 the proceeding against the Petitioner was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as "the Pension Rules" for the sake of brevity). As per direction of this Court a fresh Show Cause Notice was issued to the Petitioner through departmental letter dated, 27th August, 1997. Petitioner filed his show cause as contained in Annexure-14 to the supplementary affidavit filed by the Petitioner today. After receipt of the show cause and after considering the same a fresh Order was passed by the Respondents on 3rd August, 1998 as contained in Annexure-11. By this Order punishment of withholding of 25 per cent pension permanently and disentitlement of the Petitioner for any other payment for the period of his suspension except his subsistence allowance was imposed. However, this Order dated, 3rd August, 1998 was passed under Rule 43(b) of the Pension Rules. 6. The said Order of punishment dated, 3rd August, 1998 was also challenged by the Petitioner in CWJC No. 7549 of 1998. In that writ application this Court considered the history of the case and found that the Petitioner had filed his initial show cause on 10th September, 1997 and further show cause on 5th March, 1998 in response to the notice dated, 19lh January, 1998. However, this Court found that inspite of filing of the detailed show cause by the Petitioner, the authorities had passed the impugned Order in a cryptic manner "without considering the show cause or any evidence for" finding the Petitioner guilty of gross misconduct". In the circumstances by Order dated, 18th April, 2000 (Annexure-12) the impugned Order dated, 3rd August, 1998 was quashed and the matter was remitted back to the Disciplinary Authority for passing a fresh Order in accordance with law within two months from the date of receipt/production of a copy of the Judgment/Order. 7. Pursuant to the Order of thisCourt dated, 18th April, 2000 a fresh Order has been passed by the Respondents as contained in Memo dated, 1st August, 2000 (Annexure-13), which is impugned in this writ application. 8. 7. Pursuant to the Order of thisCourt dated, 18th April, 2000 a fresh Order has been passed by the Respondents as contained in Memo dated, 1st August, 2000 (Annexure-13), which is impugned in this writ application. 8. Learned Counsel for the Petitioner has submitted that the impugned Order as contained in Annexure-13 is almost verbatim repetition of the earlier Order passed by the authorities, which was quashed by this Court in CWJC No. 7549 of 1998. He further submits that inspite of quashing of the earlier Order passed by the authorities by this Court on the ground of non-consideration of the show cause of the Petitioner, the present Order has again been passed without considering the show cause of the Petitioner. He further contends that after retirement of the Petitioner, proceeding was converted into one under Rule 43(b) of the Pension Rules. As prior to his retirement proceeding had commenced under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as "the Rules" for the sake of brevity), the proceeding under Rule 43(b) of the Pension Rules also ought to have been proceeded on the line of the said Rule 55 of the Rules. The next submission of the learned Counsel for the Petitioner is that for imposing punishment of withholding of salary of the Petitioner of the period of suspension, the authorities ought to have issued a fresh Show Cause Notice. In support of his second contention, learned Counsel for the Petitioner has relied on a Judgment in the case of Ram Nandan Prasad Sinha V/s. The State of Bihar and Ors. reported in 2001 (2) PLJR 826 . In that case Division Bench of this Court examined the scheme of Rule 43(b) of the Pension Rules and held that in cases in which proceeding under Rule 55 of the Rules had been initiated prior to the retirement of the incumbent, the same procedure ought to have been applied while proceeding under Rule 43(b) of the Pension Rules. In support of his third contention learned Counsel has relied upon a Division Bench Judgment of this Court in the case of Dinesh Prasad V/s. State of Bihar and Ors. reported in 2007 (1) B.B.C.J. V-99. In support of his third contention learned Counsel has relied upon a Division Bench Judgment of this Court in the case of Dinesh Prasad V/s. State of Bihar and Ors. reported in 2007 (1) B.B.C.J. V-99. In that case it was held that in case of punishment of withholding of full salary of the Petitioner of suspension period the Disciplinary Authority was required to give separate Show Cause Notice to the delinquent in terms of Rule 97(3) of the Bihar Service Code. 9. A counter affidavit has been filed by the State. In reply to the first submission of the learned Counsel for the Petitioner that there was no consideration of the show cause in the impugned Order, learned Counsel for the State submits that the show cause of the Petitioner was examined. So far as second submission of the learned Counsel for the Petitioner is Concerned, learned Counsel for the State submits that in case of admitted position no full-fledged enquiry was required and there was no necessity of examination of witnesses and verification of documents. Learned Counsel for the State submits that since non-compliance of the transfer Order and absence from duty are admitted position and therefore, no full-fledged enquiry was required to be held by calling witnesses to be examined and by collecting any document to be proved. So far as third submission of learned Counsel for the Petitioner is concerned, learned Counsel for the State is unable to dispute the legal proposition as laid down by this Court in the case of Dinesh Prasad (supra). 10. I have considered the rival submissions of the learned Counsel for the parties and have gone through the impugned Order (Annexure-13). From a bare reading of Annexure-13 it appears that except for mentioning the fact that the Disciplinary Authority has scrutinised the show cause of the Petitioner, there is no discussion with regard to any point raised by the Petitioner in his show cause. It appears that impugned Order has been passed in a mechanical manner and the show cause of the Petitioner has not been considered and discussed inspite of earlier Order of this Court as contained in Annexure-12. 11. So far as second submission of the Petitioner is concerned, I find force in the same. It appears that impugned Order has been passed in a mechanical manner and the show cause of the Petitioner has not been considered and discussed inspite of earlier Order of this Court as contained in Annexure-12. 11. So far as second submission of the Petitioner is concerned, I find force in the same. Although it may be an undisputed situation that the Petitioner had not joined his transferred post within time and remained absent from the duty but Petitioner has tried to give some explanation to that in his show cause and, therefore, it was incumbent on the part of the Disciplinary Authority to call for the Petitioner to face a disciplinary proceeding and give further opportunity to the Petitioner to produce his documents to substantiate his claims. Admittedly, no such proceeding has been initiated in the case. 12. So far as third submission of the learned Counsel for the Petitioner is concerned, in view of undisputed position in law as held in the case of Dinesh Prasad (supra) that the punishment Order withholding of full salary of the Petitioner of the suspension period disentitled him from any payment for the suspension period except his subsistence allowance, is violative of the principles of natural justice. 13. In the circumstances, I find that the impugned Order is cryptic and without consideration of the show cause of the Petitioner, without holding full-fledged enquiry under Rule 55 of the Rules and in violation of the principles of natural justice and, as such, the same is fit to be quashed. 14. Learned Counsel for the Petitioner has submitted that more than 12 years have passed since his retirement, therefore, no liberty be granted to the State authorities to pass any fresh Order in the matter. 15. As against this learned Counsel for the State submits that there was no delay on the part of the State authorities and the delay was caused due to repeated filing of the writ application by the Petitioner and quashing of the impugned Orders by this Court. Therefore, learned Counsel for the State submits that an opportunity be granted to the State authorities to pass fresh Orders after complying the procedure under Rule 55 of the Rules and by issuing a separate show cause to the Petitioner and giving him an opportunity to produce documents and material in his favour in a duly constituted departmental proceeding. 16. Therefore, learned Counsel for the State submits that an opportunity be granted to the State authorities to pass fresh Orders after complying the procedure under Rule 55 of the Rules and by issuing a separate show cause to the Petitioner and giving him an opportunity to produce documents and material in his favour in a duly constituted departmental proceeding. 16. Considering the rival submissions of the learned Counsel for the parties on this issue, I find force in the submissions of the learned Counsel for the Petitioner. The period in question in which the Petitioner was absent from duty and disobeyed his transfer Order is of 1992-93 and thereafter repeated Orders were passed by the Respondents but they were found to be illegal and defective and, therefore, they were quashed by this Court several times. In the earlier Order of this Court as contained in Annexure-12 there was specific observations of this Court that the impugned Order has been passed "without considering the show cause or any evidence for finding the Petitioner guilty of gross misconduct", inspite of specific observations of this Court the Respondents have passed the impugned Order again in a cryptic manner without considering and discussing the show cause of the Petitioner. 17. It is stated at the bar that the Petitioner has retired about 12 years ago and he is in advance age and is ailing. Therefore, it would not be expedient to give liberty to the department to pass a fresh Order in the matter. 18. In the result, this application is allowed and Annexure-13 and the entire proceeding against the Petitioner is quashed without liberty to the Respondents to proceed in the matter afresh. Petitioner shall be entitled to all consequential benefits.