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2012 DIGILAW 762 (PAT)

State of Bihar v. Bhuwaneshwar Sharma

2012-05-10

CHAKRADHARI SHARAN SINGH, T.MEENA KUMARI

body2012
JUDGMENT CHAKRADHARI SHARAN SINGH This appeal under Clause 10 of the Letters Patent of Patna High Court has been preferred by the State of Bihar and its Officials as they are aggrieved by the order of learned Single Judge dated 18.11.2009 passed in CWJC No. 14546 of 2009 (Bhubneshwar Sharma Vs. the State of Bihar and others) reported in 2010(1) PLJR 686 , whereby the learned Single Judge has allowed the writ application and set aside the order of punishment of withholding of 100% pension and gratuity of the petitioner on the basis that the entire proceedings initiated pursuant to Resolution dated 25.5.2009 for proceeding against the petitioner afresh in connection with the allegation relating to 1989 was not permissible in view of the bar prescribed under proviso to Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the „Rules). 2. Before dealing with the other facts in detail, it is to be noticed that the writ petitioner Bhubneshwar Sharma who has been arrayed as respondent no.1 herein, filed the aforesaid CWJC No. 14546 of 2009 for quashing the order dated 17.9.2009, whereby pursuant to an order passed by this Court in CWJC No. 9210 of 2009 dated 4.8.2009 the Principal Secretary, Water Resources Department, Government of Bihar, Patna passed a reasoned order reiterating the decision of the State Government to proceed against the writ petitioner/Respondent no.1 pursuant to the Resolution No. 418 dated 25.5.2009. 3. It appears from the order dated 4.8.2009 passed in CWJC No. 9210 of 2009 that the respondent no.1 herein, had challenged the said Resolution of the State Government bearing memo No. 418 dated 25.5.2009 on the ground that such decision of the State Government amounted to initiation of a proceeding beyond four years of the alleged misconduct after his superannuation and it should not have been done after 12 years of his superannuation. This Court, on such prayer, directed respondent no.1 herein, to highlight his contention before the Government and made the competent authority of the State Government, in turn, obliged to consider such contention by passing an order afresh. It is in this background that the said order dated 17.9.2009 came to be passed, rejecting the plea of the respondent No.1 that initiation of proceeding by Resolution dated 25.5.2009 was barred by Proviso to Rule 43(b) of the Rules. 4. It is in this background that the said order dated 17.9.2009 came to be passed, rejecting the plea of the respondent No.1 that initiation of proceeding by Resolution dated 25.5.2009 was barred by Proviso to Rule 43(b) of the Rules. 4. The said order dated 17.9.2009 was challenged in CWJC No. 14546 of 2009 by Respondent no.1. During the pendency of the said writ petition the respondents came out with the final order dated 8.10.2009 withholding the 100% pension and gratuity of Respondent no.1 with effect from 31.7.1997 ( being the date of his superannuation ) with further stipulation that the provisional pension and gratuity already paid to the petitioner will be recovered by filing a money suit. The Respondent no.1 herein, by an amendment petition filed in CWJC No. 14546 of 2009 being I.A. No. 6973 of 2009 sought prayer for amendment in the writ petition in order to challenge the said notification dated 8.10.2009 as contained in memo No. 1037. The said amendment petition was allowed by learned Single Judge and finally by order dated 18.11.2009 the learned Single Judge set aside the order of punishment dated 8.10.2009 holding that Resolution dated 25.5.2009 contemplated initiation of fresh proceeding against the petitioner under Rule 43(b) of the Rules and was therefore, barred by proviso to Rule 43(b) of the Rules. Learned Single Judge rejected the plea of the State of Bihar that Resolution dated 25.5.2009 (Annexure-6 to the writ application) was in fact in continuation of the earlier proceeding initiated against Respondent no.1 while he was in service and that the decision was taken pursuant to a Division Bench orders of this Court dated 7.4.2009 passed in LPA No. 571 of 2008 and was therefore, not barred under Proviso to Rule 43(b) of the Rules. 5. We have heard Shri Subhash Prasad Singh, learned Government Advocate No. VII, for the appellants and Mr. Prabhat Ranjan for Respondent no.1 as well as Mr. J.P. Karn, appearing for the Accountant General, Bihar. 6. 5. We have heard Shri Subhash Prasad Singh, learned Government Advocate No. VII, for the appellants and Mr. Prabhat Ranjan for Respondent no.1 as well as Mr. J.P. Karn, appearing for the Accountant General, Bihar. 6. The main point which requires consideration, in the background of the facts and circumstances of the present case is, whether decision to initiate proceeding against Respondent no.1 by Resolution No. 418 dated 25.5.2009 ( Annexure-6 to the writ application) amounts to initiation of fresh proceeding against Respondent no.1 or it can be said to be in continuation of the earlier proceeding initiated against him while he was in service in which the action imposing punishment on him was set aside by this Division Bench by order dated 7.4.2009 passed in LPA No. 571 of 2008 with a liberty to proceed further in accordance with law. 7. To appreciate the controversy, it would be proper to refer to certain facts, which are relevant and not in dispute. 8. At the relevant point of time, while holding the post of an Executive Engineer in Minor Irrigation Department, a criminal case was instituted against Respondent no.1 under Sections 420,467,468,471, 409 and 120B of the Indian Peanl Code containing allegation to the effect that without taking sanction from the competent authority of the State Government and without following the procedure, purchase of Rs. 10.60 lacs was made, which was beyond his jurisdiction and such purchases were non est. A departmental proceeding was also initiated against him. In the departmental proceeding the respondent no.1 was found guilty and he was dismissed from service. 9. Aggrieved by the order of dismissal Respondent no.1 approached this Court by filing CWJC No. 5451 of 1996. The order of dismissal was set aside by an order dated 14.10.1996 (Annexure-1 to the writ petition) on the ground that the authority passed the order without considering the reply of respondent no.1 to the second show cause, which he had filed. In the said order dated 14.10. 1996 passed in CWJC No. 5451 of 1996 (Annexure-1 to the writ application), this Court while setting aside the order had directed the State- respondents of that case to pass a final order within two months after considering the reply of Respondent no.1 herein, to the second show cause. In the said order dated 14.10. 1996 passed in CWJC No. 5451 of 1996 (Annexure-1 to the writ application), this Court while setting aside the order had directed the State- respondents of that case to pass a final order within two months after considering the reply of Respondent no.1 herein, to the second show cause. Apparently, within two months, no such final order was passed which the respondents were required to in the light of this Courts order. In fact no final order was passed till Respondent no.1 attained the age of superannuation on 31.7.1997. 10. As has been indicated above, the Respondent no.1/Writ petitioner superannuated on 31.7.1997. The Appellants/State of Bihar came out with an order issued vide Memo No. 384 dated 24.1.1998 (Annexure-2 to the writ application) imposing punishment of withholding 100% of pension and gratuity on him, in purported exercise of power under Rule 43(b) of the Rules. After imposition of punishment under Rule 43(b) of the Rules by a subsequent order dated 27.1.1998, the State Government came out with a decision to convert the proceeding initiated against Respondent no.1, purportedly under Bihar Civil Services (Classification, Control and Appeal) Rules, into a proceeding under Rule 43(b) of the Bihar Pension Rules. 11. The decision for imposition of punishment finally came to be adjudicated upon by a Division Bench of this Court in LPA No. 571 of 2008. This Court by an order dated 7.4.2009 allowed the appeal preferred by Respondent No.1 and set aside the order dated 24.1.1998. The Division Bench, however, allowed the appellant State of Bihar to proceed in the proceeding under Rule 43(b) of the Rules in accordance with law as provided in the order dated 27.1.1998. (Emphasis added) 12. The Division Bench further directed by order dated 7.4.2009 that respondent no.1 shall be paid to provisional pension till the proceeding was completed and further that the arrears of provisional pension as on 31.3.2009 shall be paid within three months from the date of passing of the order. The Division Bench further directed that proceeding under Rule 43(b) must be completed within six months from the date of the order, failing which the writ petitioner will be entitled for full pension. 13. The Division Bench further directed that proceeding under Rule 43(b) must be completed within six months from the date of the order, failing which the writ petitioner will be entitled for full pension. 13. In the light of the order of the Division Bench dated 7.4.2009 the appellant-State of Bihar, through Water Resources Department came out with a notification No. 415 dated 25.5.2009 superseding the earlier decision of imposition of punishment dated 24.1.1998 as it was quashed by the Division Bench of this Court, with the condition that it will be subject to final decision to be taken in the light of memo No. 396 dated 27.1.1998. 14. On the same date i.e., 25.5.2009 vide memo No. 418, the State of Bihar came out with a Resolution to initiate a proceeding afresh against Respondent no.1 in accordance with Rule 43(b) of the Bihar Pension Rules. By the said Resolution an Inquiry Officer was appointed to conduct the enquiry and a presenting Officer was appointed to assist the Inquiry Officer on behalf of the Department in the proceeding. On perusal of the said Memo no. 418 dated 25.5.2009 (Annexure-6), it will appear that it does not mention at all of continuation of the earlier departmental proceeding. It refers to appointment of new Inquiry Officer and a Presenting Officer which itself goes to suggest that the respondent intended to hold enquiry afresh. 15. Respondent no.1 herein, in his reply to the Inquiry Officer submitted that the Division Bench had allowed the Government to initiate proceeding in accordance with law, i.e., as per the provision contained in Rule 43(b) of the Rules and initiation of fresh proceeding against him was contrary to law and therefore, contrary to the order of the Division Bench. It was in this background, as already been noted above, that CWJC No. 9210 of 2009 which was disposed of by order dated 4.8.2009, whereby the State Government was directed to consider the point raised by the petitioner and pass a reasoned order. It was in this background, as already been noted above, that CWJC No. 9210 of 2009 which was disposed of by order dated 4.8.2009, whereby the State Government was directed to consider the point raised by the petitioner and pass a reasoned order. This followed issuance of the order dated 17.9.2009 which was challenged in CWJC No. 14546 of 2009, during the pendency of which the order withholding of 100% of pension came out to be passed on 8.10.2009 This order dated 8.10.2009 was also challenged by filing I.A. No. 6973 of 2009, whereupon, learned Single Judge allowed the writ application, quashed the order of punishment and held that the resolution dated 25.5.2009 as contained in Annexure-6 to the writ petition amounted to initiation of a fresh proceeding. 16. Mr. Subhash Prasad Singh, learned Government Advocate appearing on behalf of the appellant vehemently submitted that the Resolution dated 25.5.2009 issued vide memo no. 418 was in fact in compliance of the order of the Division Bench of this Court passed in LPA No. 571 of 2008 was in continuation of the earlier departmental proceeding which was initiated against Respondent no.1 while he was in service. He contended that the decision of the Government as contained in resolution dated 25.5.2009 was, in effect, a decision to continue the proceeding already initiated against respondent no.1 and it was not a fresh proceeding. He accordingly, contended that the bar as contained in Proviso to Rule 43(b) of the Bihar Pension Rules to initiate proceeding within four years of the alleged misconduct would not apply in the present case and the ultimate decision of the State Government to impose punishment of withholding of 100% of pension and gratuity cannot be faulted with in view of the gravity of misconduct alleged against Respondent no.1. 17. Mr. Prabhat Ranjan, appearing on behalf of Respondent no.1, however, submits that resolution dated 25.5.2009, in fact, amounts to initiation of a fresh proceeding under Rule 43(b) of the Rules. He further submits that the Division Bench of this Court in LPA No. 571 of 2008 had given liberty to the State Government to pass order under Rule 43(b) of the Rules in accordance with law, i.e., in accordance with the procedure prescribed under the Bihar Pension Rules and not contrary to the law. He further submits that the Division Bench of this Court in LPA No. 571 of 2008 had given liberty to the State Government to pass order under Rule 43(b) of the Rules in accordance with law, i.e., in accordance with the procedure prescribed under the Bihar Pension Rules and not contrary to the law. He submits that Proviso to Rule 43(b) of the Bihar Pension Rules bars initiation of fresh proceeding as has been done in the present case beyond four years, from the date of alleged misconduct. He also submits that the petitioner retired nearly 12 years before initiation of the proceeding by the resolution as contained in Annexure-6 to the writ application, and that such action is arbitrary, beyond jurisdiction and contrary to the statutory provision. 18. To appreciate the rival submission of the parties, it will be appropriate to refer to 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; (b) 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.” 19. It is true, and has been held, repeatedly by this Court, while interpreting Proviso to Rule 43(b) that a departmental proceeding instituted against the Government Servant while on duty can be converted into a proceeding under Rule 43(b) if during the pendency of such departmental proceeding, the Government servant retires. Proviso (a) (ii) to Rule 43(b) of the Bihar Pension Rules empowers the Government to institute a fresh departmental proceeding in respect of an event which took place not more than four years before institution of such proceeding. No doubt in the present case a proceeding was initiated against the respondent no.1 which concluded with imposition of a punishment under Rule 43(b) of the Bihar Pension Rules with the issuance of the order dated 24.1.1998. Punishment imposed however was quashed by this Court with a liberty to the State to proceed under Rule 43(b). The appellants-State would have proceeded with the same departmental proceeding initiated earlier against the respondent no.1. The State-respondent however, chose to initiate a fresh proceeding with the issuance of the resolution dated 25.5.2009 by appointing a new Inquiry Officer and Presenting Officer. I have no hesitation in holding that the said resolution dated 25.5.2009 amounts to a fresh enquiry and from bare perusal of the resolution, it cannot be said to be in continuation of the earlier proceeding. 20. In my opinion, therefore, the bar as prescribed in Proviso (a) (ii) to Rule 43(b) of the Bihar Pension Rules comes into operation and therefore, the very foundation upon which the punishment of withholding 100% of pension is based, is vitiated. I am in complete agreement with the view expressed by the learned Single Judge in the impugned order that the order passed by the Government functionaries should be tested on the basis of the recitals therein. 21. I find no ambiguity in interpreting the order dated 25.5.2009 that it intended to initiate altogether a fresh departmental inquiry under Rule 43(b) which is impermissible beyond four years from the date of the alleged misconduct. 22. Reference may be made in this regard to the Apex Court Judgment in case of the State of Bihar and others vs. Mohd. Idris Ansari, 1995 (suppl. 22. Reference may be made in this regard to the Apex Court Judgment in case of the State of Bihar and others vs. Mohd. Idris Ansari, 1995 (suppl. 3) SCC 56, wherein almost in similar circumstance the Supreme Court held in paragraph 7 as follows:- “A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27.9.1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17.10.1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition No. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17.10. 1987 from the stage it got vitiated. The Respondent also, therefore, did not rely upon the said notice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned notice dated 27.9.1993. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17.10.1987.” 23. 1987 from the stage it got vitiated. The Respondent also, therefore, did not rely upon the said notice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned notice dated 27.9.1993. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17.10.1987.” 23. In view of the facts and circumstances noted above, I hold that the resolution as contained in Memo No. 418 dated 25.5.2009 (Annexure-6 to the writ application) amounts to initiation of a fresh departmental enquiry against respondent no.1 which is impermissible as the writ petitioner retired with effect from 31.7.1997 and the proceeding is with respect to an occurrence of the year 1989. All actions based on such decision of the Government including final order of withholding of 100% of pension and gratuity is unauthorized and illegal. The order of the learned Single Judge needs no interference. 24. The appeal is accordingly dismissed but without costs. T. Meena Kumari, J.-I agree.