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2008 DIGILAW 601 (PAT)

Krishna Prasad v. State Of Bihar

2008-04-15

MIHIR KUMAR JHA

body2008
Judgment 1. In this writ application, the petitioner has assailed the order of punishment in a departmental proceeding. Such order came to be passed on 14.7.2004 as contained in Annexure-5 to the writ application whereby and whereunder the petitioner was subjected to stoppage of one increment with non-cumulative effect as also an order of censure apart from debarring him from working as a Question Setter in future. 2. Counsel for the petitioner submits that the day on which the impugned order was passed i.e. 14.7.2004, he had no longer remained in service inasmuch as he had stood superannuated from service on 30th June, 2004 and as such any order of punishment as with regard to stoppage of one increment or with regard to making an entry of censure in his service book could not have been passed in view of the fact that he had already gone beyond the disciplinary control of the State Government on account of his superannuation. 3. Counsellor the State as with regard to the aforementioned submission states that the Government had passed an order as contained in Annexure-A whereby and whereunder recoveries were sought to be made as the order of punishment otherwise could not have been given effect to. 4. This Court after hearing the parties is satisfied that the order of punishment passed against the petitioner cannot be sustained because after 30.6.2004 if any order could have been passed in a departmental proceeding initiated prior to his superannuation that would have been only in terms of Rule 43B of the Bihar Pension Rules. It may be just noted here that Rule 43B of the Rules postulates imposition by way of withholding of pension either full or in part only on the ground of gross misconduct or pecuniary loss. 5. In the impugned order, there is no finding that the said charge against the petitioner was found to be causing pecuniary loss or a gross misconduct. The tenor of order of punishment reflects as if it was passed while the petitioner was still continuing in service. In that view of the matter, the order of punishment as contained in Annexure-5 and its consequential orders as contained in Annexures-7 and 9 cannot be sustained and they are hereby quashed. 6. The tenor of order of punishment reflects as if it was passed while the petitioner was still continuing in service. In that view of the matter, the order of punishment as contained in Annexure-5 and its consequential orders as contained in Annexures-7 and 9 cannot be sustained and they are hereby quashed. 6. As a result of quashing of the order of punishment, the matter will again go back to the Director, Secondary Education who will now reconsider the whole matter from the angle as to whether in view of the misconduct alleged against the petitioner, he could be inflicted any punishment in terms of Rule 43B of the Rules. Such a decision must be taken within a period of three months from the date of receipt/production of a copy of this order and in case the Director is of the view that the petitioner has to be proceeded in terms of Rule 43B of the Rules, he must give an opportunity of hearing to the petitioner before passing any adverse order. The amount of recovery of Rs. 6192.35 paisa which normally would have become available for refund of the petitioner for the moment will not be given back to the petitioner till the Director takes a decision in the matter. If the Director, however, holds that no action is required to be taken against the petitioner in terms of Rule 43B of the Rules, he will pass an order to this effect. 7. It is made clear that the Director, Secondary Education must pass an order under R. 43B of the Rules if at all needed within six months from the date of receipt/production of a copy of this order. 8. With the aforementioned observations and directions, this writ application is disposed of.