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2011 DIGILAW 2288 (PAT)

Ram Datta Prasad Sharma v. State of Bihar

2011-11-17

V.N.SINHA

body2011
ORDER Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Executive Engineer in Batane Head Works Division, Hariharganj, Palamu. While serving as Superintending Engineer he superannuated with effect from 31.7.2001. This writ petition has been filed praying, inter alia, to quash the notice dated 07.4.2003, Annexure-1 issued under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the “Rules”) on the ground that the notice infracts sub-rule (ii) of proviso (a) of Rule 43(b) of the Rules which, inter alia, provides that the departmental proceeding against a pensioner shall be in respect of an event which took place not more than four years before the institution of such proceedings. 3. It is submitted on behalf of the petitioner that from perusal of the notice dated 7.4.2003, Annexure-1 itself it will appear that while the petitioner was posted as Executive Engineer in the Batane Head Works Division, Hariharganj, Palamu during the year 1990-91, 1991-92, irregularities were found in execution of various civil works in the report of the Flying Squad on the basis of which petitioner was asked to show cause as to why a proceeding be not initiated against him under Letter No. 2579 dated 6.9.1994. In response to the said notice petitioner submitted his reply and punishment imposed under departmental order no. 1208 dated 17.12.1997, Annexure-7 against which petitioner filed C.W.J.C. No. 2755 of 1998. This Court under orders dated 4.9.2000 not only quashed the punishment order but also the show-cause notice observing that the show-cause notice was neither in the nature of Rule 55 or 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930. Aforesaid order of the High Court is also placed on record vide Annexure-5 to this application. Perusal of the order of the High Court indicates that while quashing the punishment order High Court granted the authorities liberty to pass fresh order in accordance with law after notice and granting opportunity of being heard to the petitioner. In the light of the liberty granted by the high Court no action was taken until he superannuated with effect from 31.7.2001. In the light of the liberty granted by the high Court no action was taken until he superannuated with effect from 31.7.2001. After about two years of the superannuation of the petitioner impugned notice dated 7.4.2003 has been given to the petitioner about the same overt acts which he is alleged to have committed while serving as Executive Engineer, Batane Head Works Division, Hariharganj, Palamu during the year 1990-91, 1991-92. 4. The subject matter of the impugned notice is more than four years old, as such, the notice is contrary to sub-clause (ii) of proviso (a) of Rule 43(b) of the Rules which, inter alia, provides that the proceeding initiated against the pensioner shall be in respect of an event which took place not more than four years before the institution of the proceedings. The proceeding has been initiated on 7.4.2003 and the allegations are of the year 1990-91, 1991-92, as such, are more than four years from the date of initiation of the proceeding. Highlighting the aforesaid submission petitioner earlier filed C.W.J.C. No. 1297 of 2003 which was disposed of under orders dated 11.7. 2003 directing the petitioner to raise the grounds raised in the said writ petition before the authorities at the first instance. In compliance of the direction given by this Court under orders dated 11.7.2003 petitioner approached the authorities and filed his reply about the non-maintainability of the proceeding initiated under notice dated 7.4.2003. The reply filed by the petitioner has been considered under order bearing Letter No. 1230 dated 19.12.2003 and rejected relying on the observation made by the High Court under orders dated 4.9.2000 that the respondents are at liberty to pass any order in accordance with law. Sub-rule (ii) of proviso (a) of Rule 43 (b) of the Rules provides for initiating a proceeding against the pensioner with respect to an event which took place not for more than four years before the institution of such proceedings. In the light of sub-rule (ii) of proviso (a) of Rule 43 (b) of the Rules there is no difficulty in concluding that notice dated 7.4.2003 as also the order contained in Letter No. 1230 dated 19.12.2003 have been issued and passed violating sub-rule (ii) of Proviso (a) of Rule 43(b) of the Rules, as such, are quashed. 5. The writ petition is, accordingly, allowed. ?