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2012 DIGILAW 1199 (PAT)

Dinesh Kumar Pathak v. State of Bihar

2012-08-28

NAVANITI PRASAD SINGH

body2012
ORDER The petitioner is aggrieved by Annexure 1, the order passed by the Registrar, Co-operative Society, Bihar, Patna and its communication to the petitioner under memo no. 4511, dated 7.10.2005. By the said order, exercising jurisdiction under Rule 139 of the Bihar Pension Rules, the petitioner has been visited with a punishment of 10% cut in his pension. For the period of suspension, he was deprived of any remuneration other than subsistence allowance and for the alleged period between 31.12. 1998 up to 15.5.2001, treating the period to be unauthorized absence there would be no payment of remuneration on the principle of “No work- No pay”. 2. A counter affidavit has been filed and with the consent of the parties, the writ petition has been finally heard for its disposal at this stage itself. 3. Learned counsel for the petitioner raised two submissions. First, he submits that after suspending the petitioner, a disciplinary proceeding was initiated, while the petitioner was in service, suspension and the proceedings continued. In the meantime, on 31.8.2003, the petitioner superannuated. Before he superannuated, an enquiry report dated 19.8.2003 had already been submitted to the disciplinary authority. The disciplinary authority instead of passing of any order thereon vide memo no.3944, dated 20.7.2004 (Annexure 6) recalled the disciplinary proceedings though on the ground that the petitioner had already superannuated on 31.8.2003. Notwithstanding the aforesaid, on the very next day vide memo no. 3983, dated 21.7.2004, the disciplinary authority started a fresh proceeding with fresh charges under Rule 139 of the Bihar Pension Rules. This, learned counsel for the petitioner would submit, is not possible. Once the disciplinary proceedings were not continued after superannuation with reference to Rule 43(b) rather withdrawn the proceeding with reference to Rule 139 of the Bihar Pension Rules could not be initiated. Here the delinquency is alleged non compliance of the transfer order of the year 1998, which is almost six years prior to the order initiating proceeding under Rule 139. In support of his submission reliance has been placed on the case of State of Bihar & Ors. Vs. Mohd. Idris Ansari since reported in 1995(2)PLJR SC 51.The second submission would be that considering the facts, as noted in the enquiry report , which virtually exonerates him, the petitioner’s punishment is too severe. In fact, no punishment at all was called for. 4. Vs. Mohd. Idris Ansari since reported in 1995(2)PLJR SC 51.The second submission would be that considering the facts, as noted in the enquiry report , which virtually exonerates him, the petitioner’s punishment is too severe. In fact, no punishment at all was called for. 4. The petitioner was caught between the devil and the deep sea. The Registrar, Co-operative Society had ordered his transfer but the Chairman of the Co-operative was not ready to relieve him. The Joint Registrar technically relieved him without replacement. In the meantime he had suffered cerebral haemorrhage and fracture of toe. He was completely bed ridden. The transfer was stayed by the Joint Registrar. Considering his seriousness of illness, directions were issued for payment of remuneration but merely because there was a technical non compliance of the order of the Registrar in view of the action of the Chairman of the Co-operative, the petitioner has been uselessly punished. 5. On the other hand, learned counsel for the State submits that firstly the petitioner ought to have gone and availed alternative remedy and as such this writ petition should not be entertained. Secondly he submits that there being a finding of disobedience of the order of transfer, this Court should not interfere in the matter. Lastly, he submits that if Annexure 6, the order withdrawing the departmental proceeding and Annexure 7 initiating proceeding under Rule 139 of the Bihar Pension Rules are taken and seen in correct perspective, it is nothing but continuance of the disciplinary proceeding. 6. Having considered the matter, in my view, the writ petition must succeed. 7. So far as first objection raised by the learned counsel for the State is concerned, I am not impressed. Firstly, the writ petition has been filed in this Court and is pending for over six years. The petitioner had superannuated three years before that. It would not be fair to relegate the petitioner to alternative remedy now at this stage. It is well settled that availability of alternative remedy is not an absolute bar. The other reason is that the challenge to the order of punishment is based on jurisdiction. What is submitted by the learned counsel for the petitioner is that the very initiation of the proceeding under Rule 139 is wholly without jurisdiction. It is well settled that availability of alternative remedy is not an absolute bar. The other reason is that the challenge to the order of punishment is based on jurisdiction. What is submitted by the learned counsel for the petitioner is that the very initiation of the proceeding under Rule 139 is wholly without jurisdiction. It is again well settled that where the action of the authority is wholly without jurisdiction, alternative remedy is no bar. The preliminary objection of the State is rejected. 8. Now coming to the substantive challenge to the proceeding as led out by the petitioner. The fact, as noted above, would clearly show that even though the petitioner superannuated on 31.8.2003 when he was under suspension, the departmental proceeding continued. The enquiry report in the disciplinary proceeding was filed on 19.8.2003, prior to his superannuation still the proceedings were not concluded. It is only on 20.7.2004, almost a year after superannuation of the petitioner that the Registrar, Co-operative Society withdrew the departmental proceedings. No sooner such an order, as contained in Annexure 6, was passed, the legal effect would be that there was no proceeding as against the petitioner. We then have the proceedings that initiated on the next day with reference to Rule 139 of the Pension Rules. For all intent and purpose, this is a fresh proceeding. If this is a fresh proceeding then one must see whether such a proceeding could be initiated at that point of time. 9. As noted above, the delinquent had allegedly not obeyed the transfer order in 1998. Thus, if we look to Rule 43 of the Pension Rules, it would be seen that initiating a proceeding in the year 2004 for dereliction of 1998 was impermissible. Resort cannot be taken to Rule 139 of Pension Rules in such a situation. 10. Learned counsel for the petitioner has rightly relied on the decision of the Apex Court in the case of State of Bihar Vs. Mohd. Idris Ansari (supra), which is similar on material point to the present case. There also the facts were similar. 11. First the proceedings with reference to Rule 43 was sought to be initiated, it was quashed by this Court. Then a proceeding with reference to Rule 139 of Pension Rules was sought to be initiated. Mohd. Idris Ansari (supra), which is similar on material point to the present case. There also the facts were similar. 11. First the proceedings with reference to Rule 43 was sought to be initiated, it was quashed by this Court. Then a proceeding with reference to Rule 139 of Pension Rules was sought to be initiated. This was again quashed by this Court and against which the State appealed to the Supreme Court. The appeal was dismissed. The Apex Court clearly held that if a proceeding with reference to Rule 43 could not be initiated, then resort could not be taken to Rule 139 of Pension Rules. The case is thus covered by the said decision. 12. However, in fairness to learned counsel for the petitioner, I may also notice that the enquiry officer in his report has virtually exonerated the petitioner. It clearly held that though there was an order of transfer issued by the Registrar- Co-operative Society, the Chairman of the Co-operative Society of which, the petitioner was the Managing Director was not relieving the petitioner. No one was sent to take charge. Subsequently, the Joint Registrar stayed the transfer also. In such a situation to hold that the petitioner deliberately flouted the order of transfer was not correct. The disciplinary authority in the order has held that the petitioner ought to have obeyed the order of the Registrar, He went to the extent for disbelieving his illness for which there are other documents on record including the order of Joint Registrar directing payment of his remuneration for treatment. The petitioner had suffered cerebral severe hemorrhage and facture of toe. If this be kept in mind, no person of ordinary prudent would take steps of punishing the petitioner with major punishment, as noted above. I agree. 13. In view of the aforesaid, I have no option but to allow the writ petition and quash Annexure-1 to the writ petition. Consequently, the Registrar, Co-operative Society is directed to restore the full payments to the petitioner in respect of his pension as well as for the period of suspension and other payments.