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2011 DIGILAW 1362 (PAT)

Md. Hassan Majeed v. State Of Bihar

2011-07-08

AKHILESH CHANDRA, T.MEENA KUMARI

body2011
JUDGMENT : T. Meena Kumari& Akhilesh Chandra, JJ. - The present Letters Patent Appeal has been filed against the ORDER :dated 5.2.2009 passed in C.W.J.C. no.3054 of 1998 wherein appellant has chosen to question the proceeding dated 15.1.1998 directing for a cut off 50% of his pension as he was found guilty of grave misconduct causing pecuniary loss to the Government while he was working as Superintending Engineer in Subarna Rekha Project of Water Resources Department. 2. It is stated that he was issued a show cause on 29.4.1992 for which he submitted his explanation and he retired on 30.6.1993. The ORDER :was passed on 15.1.1998 affecting 50% cut off from his pension. It is also contended that there was no proper enquiry as prescribed under Rule 43 B of the Bihar Pension Rules and in absence of any departmental enquiry the ORDER :passed by Respondent no.3 is bad in the eye of law. 3. Learned single Judge having heard the parties observed that sufficient materials are available to the respondents to pass such ORDER :and, as such, he dismissed the writ application. Being aggrieved by the same the present Letters Patent Appeal has been filed. 4. Learned senior counsel for the respondents has submitted that a show cause was issued on 29.4.1992 and as his explanation was not found satisfactory, 50 % cut off from his pension amount was ORDER :ed in the proceeding dated 15.1.1998. 5. We have heard both sides and have gone through Rule 43(b) of the Bihar Pension Rules, 1950 which envisages that the State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right or ORDER :ing the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct ; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. The explanation under Rule 43 B of the Bihar Pension Rules, 1950 envisages that for the purpose of the rule, departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him. 6. The explanation under Rule 43 B of the Bihar Pension Rules, 1950 envisages that for the purpose of the rule, departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him. 6. In view of the fact that in this case ORDER :to cut off 50% of the pension amount has been passed without initiating any departmental proceeding but only on the basis of reply to the show cause, we are of the opinion that ORDER :of the authority cannot be sustained and such a major penalty cannot be arrived at without conducting any departmental proceeding. However, in this case charges have been framed by showing show cause dated 29.4.1992, i.e., prior to the date of his retirement. In that view, we are of the opinion that the departmental proceeding shall be deemed to have been instituted as per sub-clause (a) of the Explanation of Rule 43B of the Bihar Pension Rules, 1950. 7. Under such circumstances, we are of the opinion that the ORDER :of the respondents has to be set aside. Accordingly, ORDER :of the learned single Judge is also set aside. However, liberty is granted to the respondent authority that following the procedure to the Explanation as prescribed under Rule 43B of the Bihar Pension Rules, 1950, departmental proceeding can be proceeded in accordance with law as the show cause was issued prior to the retirement of the appellant. 8. Learned counsel for the appellant has submitted that a direction may be issued to the respondents-authority to pay all the arrears of the pension which has been deducted at the rate of 50% from his pension. 9. Accordingly, respondents-authority are hereby directed to pay all the arrears of the pension, which has been deducted from the pension amount of the appellant, within a period of three months from the date of receipt of a copy of this ORDER :. 10. However, we make it clear that the respondents-authority can proceed with the disciplinary proceeding without being influenced either by the observation of this Court or of the learned single Judge. However, liberty is granted to the respondents-authority to take appropriate decision after conclusion of the disciplinary proceeding in accordance with law. 11. Accordingly, with the aforesaid observation/direction this Letters Patent Appeal stands disposed of.