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2011 DIGILAW 36 (PAT)

Mostt. Shail Verma v. State Of Bihar

2011-01-05

SHEEMA ALI KHAN

body2011
JUDGEMENT 1. The original petitioner is aggrieved by Anneuxre-1 by which he has been punished by forfeiture of 10 per cent of his pension and part of his gratuity amount in lieu of a department proceeding initiated against the original petitioner. 2. The facts are that the original petitioner had worked as District Leprosy Officer at Dumka in the year 1989-90. It has been alleged that the original petitioner had purchased medicines from Kolkata beyond what was sanctioned by the Government. The original petitioner retired on 31.01.1994. The departmental proceeding was initiated vide Annexure-4 dated 02.08.1994 and the petitioner was asked to file show cause. Apparently, after filing of the show cause etc., Annexure-5 has been issued on 27.11.1998, which indicates that the original petitioner has been exonerated in the departmental proceeding and there is an order to pay the rest 10 per cent of pension and gratuity amount, which was due to the original petitioner. 3. After the order of exoneration dated 27.11.1998 (Annexure-5), memo no. 1466 (18) dated 03.12.1998 was issued apparently initiating a fresh proceeding against the original petitioner which resulted in an enquiry and the order of punishment as contained in Annexure-1. 4. The main contention of the petitioner is that the second proceeding initiated against the original petitioner was unwarranted once he had been exonerated in the earlier departmental proceeding. It is alsd submitted that the earlier departmental proceeding initiated vide Annexure-4 dated 02.08.1994 cannot be merged with the present proceeding initiated in the year 1998 and the proceeding of 1994 came to an end vide Annexure-5, exonerating the original petitioner. It has also been argued that once a proceeding has been concluded in favour of an employee, the initiation of the second proceeding on the same grounds and for the same charges is completely unwarranted. While making submissions, Counsel for the petitioners relies on the provisions of Rule 43 (b) of the Bihar Pension Rules, which reads as follows:- "43. It has also been argued that once a proceeding has been concluded in favour of an employee, the initiation of the second proceeding on the same grounds and for the same charges is completely unwarranted. While making submissions, Counsel for the petitioners relies on the provisions of Rule 43 (b) of the Bihar Pension Rules, which reads as follows:- "43. (b) 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 of ordering 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: Provided that - (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (bj judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation-For the purposes of the rule- (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; and (b) judicial proceedings shall be deemed to have been instituted :- (i) in the case of criminal proceedings, on the date on which a complainant is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complainant is presented, or as the case may be, an application is made to a civil Court." 5. The aforesaid provision clearly states that a departmental proceeding cannot be instituted against a retired Government servant for an event which took place more than four years before the institution of the proceeding. The explanation thereto also indicates that a proceeding would deem to be instituted on the date on which charges have been framed or on the date on which the incumbent was put under suspension. In the present case, it is obvious that the charges were initially framed against the petitioner in the year 1994, however that proceeding reached its finality and as such there was no occasion for initiation of fresh departmental proceedings by passing an order under Rule 43 (b) of the Bihar Pension Rules and serving the charge-sheet along with the notice to the original petitioner vide Annexure-6 on 03.12.1998. it would be relevant to state here that the charges relate to the period between 04.12.1989 to 03.02.1990, which indicates that in fact the charges relate to the period eight years prior to the initiation of the proceedings, which is contrary to the provisions of the explanation 43 (b) (2) of the Bihar Pension Rules, quoted above. 6. This Court, therefore, finds that the proceeding is liable to be quashed on the ground that the proceeding is in violation of the provisions of Rule 43 (b) of the Bihar Pension Rules. 6. This Court, therefore, finds that the proceeding is liable to be quashed on the ground that the proceeding is in violation of the provisions of Rule 43 (b) of the Bihar Pension Rules. Apart from this ground, initiation of the second proceeding for the same charges is also unwarranted and cannot be sustained by this Court, for the reason that if the State was to be given a free hand and be allowed to initiate proceedings on same or similar charges, having failed to prove the charges earlier, it would amount to giving the State unbridled power and the powers would be never end, and well cause nothing but mental harassment to the party facing the proceeding. 7. In the result, the order as contained in Annexure-1 is quashed. This writ application is thus allowed.