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2012 DIGILAW 281 (PAT)

Chandreshwar Ram v. State of Bihar

2012-02-16

GOPAL PRASAD, T.MEENA KUMARI

body2012
ORDER T. MEENA KUMARI, J.:–The present appeal is filed against the order, 25.06.2010, passed in C.W.J.C. No. 10878 of 2002. The appellant, herein, is the writ petitioner who filed a writ petition aggrieved by Memo No. 1602, dated 24.11.2001, issued by the District Superintendent of Education, Lakhisarai, under Annexure 6, by which the respondents have stopped the payment of salary to the appellant, even though he has retired from service. 2. The appellant was appointed as Teacher on 10.12.1981 and continued, as such, nearly for a period of 20 years when a suspicion was raised with regard to his qualification. He has retired from service on 30.11.2008. The grievance of the appellant is that he was not paid salary and other dues even though he was allowed to continue in service for a long period of 20 years. 3. A counter affidavit has been filed in the writ Court stating therein that there was suspicion with regard to matriculation certificate as well as teachers’ training certificate of the appellant to be forged, but, subsequently the matriculation certificate of the appellant was found to be genuine. However, the teachers’ training college, by which the certificate was issued, seems to be not in existence on the date when information was called by the respondent-authorities. 4. The learned Single Judge having taken note of the submission has dismissed the writ petition and directed to make an enquiry within a period of four months from the date of receipt of a copy of the order. The learned counsel appearing on behalf of the appellant has submitted that no enquiry was initiated at any point of time during service period of the appellant and there was no disciplinary proceeding, but, only on suspicion the salary and retrial benefits of the appellant has been stopped. 5. The learned Government Advocate was trying to defend the case of the respondent by saying that on suspicion salary and retrial benefits of the appellant was stopped. 6. We had also the occasion to go through the records and more so the counter affidavit filed by the official respondents in this case. Nowhere in the counter affidavit it has been stated that the enquiry was initiated during the service tenure of the appellant as a teacher. 6. We had also the occasion to go through the records and more so the counter affidavit filed by the official respondents in this case. Nowhere in the counter affidavit it has been stated that the enquiry was initiated during the service tenure of the appellant as a teacher. There is no whisper in the counter affidavit with regard to any allegation being made by anybody relating to the certificate of the appellant and what could be carved out from the counter affidavit is that the teachers’ training college, by which the certificate is issued, was no more in existence. In the counter affidavit nothing has been stated either about the initiation of the enquiry or about any disciplinary proceeding pending against the appellant. 7. At this juncture it is relevant to state that in Memo No. 1602, dated 24.11.2001, issued by the District Superintendent of Education, Lakhisarai, under Annexure 6, it was made clear that an enquiry would be conducted to examine the truthfulness of the certificate. There was no enquiry initiated, as such, by the department, but, his salary was not paid. In the counter affidavit filed by the official respondent there is no mentioning about the initiation of enquiry with effect from 24.11.2001 or there is no supporting statement in the counter affidavit to the effect that the departmental enquiry has been initiated. 8. In absence of any material before this Court as well as before the learned Single Judge, it has to be construed that there was no material placed before the learned Single Judge as well as before this Court to show that any departmental enquiry or any disciplinary proceeding has been initiated in addition to the statement made in the counter affidavit. 9. Under the above circumstance, it has to be construed that no enquiry or departmental proceeding was initiated except issuing Memo No. 1602, dated 24.11.2001. Even though the authorities have called for a report with regard to genuineness of the matriculation certificate as also the teachers’ training certificate, but, it has been stated in the counter affidavit that the matriculation has been found to be genuine, but, so far the teachers’ training certificate is concerned, the college, by which it was issued is no more in existence on the date of report. There is no further progress in the matter in the meanwhile the appellant retired on 30.11.2008 during the pendency of the writ petition. There was no disciplinary proceeding in continuation of Memo No. 1602, dated 24.11.2001, and also no stay was granted by this Court at any point of time. 10. In our view nothing was prevented for the official-respondents to proceed with an enquiry, if they so desire with reference to Memo No. 1602, dated 24.11.2001, which is the subject matter of the present appeal. In absence of any material to show that they have proceeded with any enquiry with effect from the date on which the Memo has been issued, the point for consideration for this Court would be as to whether they have any power to initiate any enquiry as per the Bihar Pension Rules, 1950, (hereinafter referred to as, “the Rules”) after retirement as appellant has retired on 30.11.2008. 11. The order of the learned Single Judge would go to show that the Court has directed the enquiry to be completed within a period of four months from the date of receipt of a copy of the order. At this juncture, it is relevant to decide the matter with reference to Rule 43(b) of the Rules, which is extracted below : “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” 12. As the proviso (ii) of Rule 43(b) of the Rules, it indicates that such power can be exercised by the Government which took place not more than four years before the initiation of such proceeding. Proviso (ii) of Rule 43(b) of the Rules is extracted here in below : “(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings” 13. Proviso (ii) of Rule 43(b) of the Rules is extracted here in below : “(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings” 13. Under the above circumstances the point for consideration is as to whether the official respondent has power to proceed with the enquiry now which took place more than four years before. The institution of such proceeding as per the Explanation (a) of proviso (ii) of Rules 43(b) of the Rules indicates that the 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. 14. From the record, it appears that on such date they have not taken any steps to initiate the departmental proceedings by suspending the appellant while he was in service and, therefore, we have to say that they have no right under the provisions of Rule 43(b)(ii) of the Rules to proceed against the appellant as the limitation of four years have lost on 24.11.2005. 15. Under the above circumstances, we are of the opinion that the observation of the learned Single Judge to the effect that the enquiry must be completed within a period of four months from the date of receipt of the order, has to be set aside and, accordingly, it is set aside. 16. It is made clear in the Explanation (a) of proviso (ii) of Rule 43(b) of the Rules that 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. This is case where no charges were framed against the pensioner during his service. 17. Under the above circumstances, as no material is placed by the respondents for stopping the salary and retrial benefits of the appellant, we are of the opinion that Memo No. 1602, dated 24.11.2001, has to be quashed and, accordingly, it is quashed and the Letters Patent Appeal is allowed.