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2007 DIGILAW 980 (PAT)

A. A. Mallick & Anr. v. State Of Bihar

2007-05-21

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. By the present writ petition the petitioner no. 1, who superannuated as Director, T.B. Demonstration and Training Centre, Patna and allegedly closely associated and mastermind of the T.B. appointment scam and Mh.D. medicine scam challenges the initiation of disciplinary proceedings and consequential orders, ordering for forfeiting all pensionary benefits. The grounds taken by the petitioner are that such a proceeding was initiated by the Government Resolution dated 30.7.2004 in respect of occurrences of the years 1987 to 1990 and he had superannuated on 31.1.1991. He has submitted that in terms of rule 43(b) of the Bihar Pension Rules, 1950 , no proceeding could have been initiated after superannuation without the sanction of the government and such a proceeding could only be initiated in respect of an occurrence within four years from the date of initiation of proceeding as contemplated in terms of Rule 43(b), proviso a (i) and (ii). 3. In the present writ petition the petitioner only gave his date of superannuation. 4. In the counter affidavit filed by the State, it has been stated that in 1990 criminal cases were initiated against the petitioner for making as many as 650 fraudulent appointments and unauthorisedly ordering purchase of medicine. In view of the aforesaid fact, the petitioner was put under suspension in September/November, 1990. 5. As he superannuated on 31.1.1991 his suspension stood revoked, with orders of continuance of other proceedings against him. In 1992 sanction for criminal prosecution was granted. It appears that for some unknown reasons all matters in relation to the petitioner then remained in stagnation. Ultimately, on 30.7.2004 the government took by way of abundant caution, decision to initiate proceeding and granted sanction for disciplinary proceedings. Enquiry Officer was appointed. The petitioner filed the present writ petition challenging the jurisdiction to initiate the proceeding and on this ground refused to co-operate in the disciplinary proceeding. Notice of the proceeding had to be published in the newspaper. Still the petitioner refused to co-operate through correspondence with the enquiry officer through his advocate requesting proceeding not to be continued. Petitioner inspite of opportunity being granted did not file his show cause. The disciplinary proceeding thus ended without any defence on part of the petitioner holding the petitioner guilty of serious charges and thus the authorities have passed the order forfeiting his all pensionary benefits. Petitioner inspite of opportunity being granted did not file his show cause. The disciplinary proceeding thus ended without any defence on part of the petitioner holding the petitioner guilty of serious charges and thus the authorities have passed the order forfeiting his all pensionary benefits. It is thus vitiated, not legal and without jurisdiction, as submitted. 6. Having heard counsel for the petitioner and the State and having perused the writ petition and reply thereto, it is evident that in the writ petition the petitioner concealed the fact that before his superannuation he had been suspended. This is a materal fact inasmuch as for application of rule 43(b) of the Bihar Pension Rules, this is the clinching issue. Rule 43(b) of the Bihar Pension Rules gives a right to the State Government, the employer, to withdraw pensionary benefits if the petitioner is found in a departmental proceeding or judicial proceeding to be guilty of grave misconduct. This power is restricted by the proviso. The proviso provides that if the departmental proceeding is not initiated while the government servant was on duty then it cannot be initiated firstly without sanction of the State Government and it could only be in respect of an event not more than four years before the initiation of such proceeding. Explanation (a) to the said rule clearly provides as to what is the meaning of initiation of the departmental proceeding. "Explanation(a): departmental proceeding shall be deemed to have been instituted when, the charges framed against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date." 7. Here, it would be seen that the departmental proceeding shall be deemed to be initiated when charges are framed against the petitioner and are issued to him or if the Government servant has been placed under suspension from an earlier date on such date. 8. A reference would show that if a Government servant has been put under suspension prior to superannuation then in terms of rule 43(b), it would be deemed that departmental proceeding had been initiated. It is for this reason, this court as pointed out above observed that stating the fact that the petitioner had been suspended prior to superannuation was a material fact to be stated. The writ petition ought to have been dismissed for suppression of this material fact. It is for this reason, this court as pointed out above observed that stating the fact that the petitioner had been suspended prior to superannuation was a material fact to be stated. The writ petition ought to have been dismissed for suppression of this material fact. However, as this fact has been brought on record by the counter affidavit and not having denied by the petitioner in reply, considering the aforesaid fact, it would be seen that the petitioner having been put under suspension prior to his superannuation, there is no necessity of sanction of Government or the application of clause (a) (ii) of the proviso to rule 43(b) prior to superannuation. 9. It is submitted by the petitioner that in the counter affidavit of the State, it is admitted that on the day of superannuation his suspension was revoked. This would amount that he was not under suspension when he superannuated. To my mind this is not correct and legal. Suspension is an incidence, which takes place during service when master and servant relationship subsists, suspension automatically abates/revokes on superannuation. That is the true intention of the government but he has not been absolved but it was revocation by operation of law. This application is, therefore, misconceived. 10. It was then contended by the petitioner that he was seriously denied principle of natural justice. This argument has been made only to be rejected. The petitioner was issued show cause notice. He claims to be residing in Patna. There being no response, the notice was published in newspaper. The petitioner became aware of it. He challenged the proceeding before this Court. His lawyer corresponded with the enquiry officer requesting not to proceed with the proceeding as he has challenged the jurisdiction of the initiation of the proceeding but he having known of the proceeding and the nature of the proceeding, chose not to show cause. 11. In my view this conduct of the petitioner left no choice to the departmental authority but to treat the matter as a matter of total non-co-operation and thus held the charges established and recommended for forfeiting of all pensionary benefits as by then he had superannuated and no other punishment could be given. 12. In my view action cannot be challenged as either without jurisdiction or illegal or arbitrary in any manner. 13. I find no merit in this application.