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2014 DIGILAW 629 (PAT)

Baidyanath Prasad Verma v. State of Bihar

2014-05-16

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2014
ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Re : I.A. No. 1489 of 2013 in Letters Patent Appeal No. 249 of 2013 1. Delay of 178 days occurred in filing the above Letters Patent Appeal is condoned. 2. Interlocutory application stands disposed of. Re : Letters Patent Appeal Nos. 459 of 2012 and 249 of 2013 3. These two Appeals preferred under clause 10 of the Letters Patent arise from the judgment and order dated 22nd December 2011 passed by the learned single Judge in CWJC No. 6962 of 2007. 4. Letters Patent Appeal No. 459 of 2012 has been preferred by the petitioner-delinquent insofar as the learned single Judge has confirmed the finding of guilt recorded against the petitioner. Letters Patent Appeal No. 249 of 2013 has been preferred by the respondent-State of Bihar insofar as the learned single Judge has reduced the punishment of “reduction in pension by 50%” to that of “reduction in pension by 10%”. 5. On 30th January 1999 a disciplinary proceeding was initiated against the writ petitioner, then an Executive Engineer, for the alleged financial irregularities in making payment to the contractors. Next day, the petitioner, on reaching the age of superannuation, retired from service on 31st January 1999. Since his retirement, the disciplinary proceeding was continued as envisaged by Rule 43(b) of the Bihar Pension Rules, 1950. Further allegation for as many as 14 counts of financial irregularities was made under the supplementary charge-sheets dated 22nd June 1999 and 25th June 1999. After completion of disciplinary proceeding, the enquiry officer submitted his report of guilt on 20th February 2000. Pursuant to the said report, under Notification dated 20th February 2006, the petitioner has been visited with punishment of reduction in pension by 50% as envisaged by Rule 43(b) of the Bihar Pension Rules. It is further directed that for the period spent under suspension from 27th November 1998 to 31st January 1999, the petitioner be allowed subsistence allowance and no other service benefits. 6. Feeling aggrieved, the petitioner approached this Court under Article 226 of the Constitution of India in above CWJC No. 6962 of 2007. 7. The learned single Judge has partially allowed the writ Petition. The learned single Judge has upheld the finding of guilt recorded against the petitioner, however has reduced the punishment to “reduction in pension by 10 %”. Therefore, these Appeals. 8. 7. The learned single Judge has partially allowed the writ Petition. The learned single Judge has upheld the finding of guilt recorded against the petitioner, however has reduced the punishment to “reduction in pension by 10 %”. Therefore, these Appeals. 8. We have heard the learned advocates and have perused the records carefully. To us, it appears that this is one case where this Court is required to interfere in a disciplinary proceeding in exercise of power of judicial review conferred by Article 226 of the Constitution of India. 9. It was alleged that the petitioner had been allowed certain funds for the year 1996-97 for payment to the contractors for the works done in the financial year 1996-97. However, in utter disregard of Government instructions, the petitioner utilized the said amounts for outstanding dues of the contractors for the works done prior to the financial year 1996-97. The additional charges also were in connection with the disbursement of Government funds amongst the contractors against their outstanding dues. The gravamen of the charge was that the disbursement was made in contravention of the Government instructions/orders. It was never the case of the State Government that the funds allocated to the petitioner were not utilized for payment of outstanding dues of the contractors. There was no dispute that such amounts were indeed due to the contractors. The charge was limited that instead of paying the dues incurred in the year 1996-97, the petitioner had discharged the dues of earlier years. 10. The said imputation of charge was duly answered by the petitioner. The petitioner relied upon Rule 13 of the Financial Rules and also the Budget Manual to justify his conduct of discharging the outstanding dues of the State Government. The petitioner categorically denied that he had received any Government instruction/order to utilize the fund for discharging the outstanding dues of the year 1996-97 alone. We may note here that none of the three memoranda of charges referred to any oral or documentary evidence. Although the petitioner had categorically denied receiving of any Government instruction/order, neither such instructions or orders were furnished to the petitioner at any time during the disciplinary proceeding nor did the petitioner have opportunity to meet the said allegation. The entire case of the State Government was based on the Government instructions/orders. Although the petitioner had categorically denied receiving of any Government instruction/order, neither such instructions or orders were furnished to the petitioner at any time during the disciplinary proceeding nor did the petitioner have opportunity to meet the said allegation. The entire case of the State Government was based on the Government instructions/orders. In absence of the said instructions/orders, in our opinion, the entire exercise of holding disciplinary proceeding shall fail. 11. The enquiry officer also adopted a weird procedure. The entire burden of proof was cast upon the delinquent, the petitioner. In course of the disciplinary proceeding the petitioner did ask for certain documents which the presenting officer agreed to furnish on some future date. Since then the presenting officer did not attend the disciplinary proceeding at all, there is nothing on the record or in the report of the enquiry officer to even remotely suggest that the relevant documents were furnished to the writ petitioner. The enquiry officer also appears to have received some materials from the presenting officer. Without furnishing the said materials to the delinquent and without giving the delinquent opportunity to meet with such materials, the said materials have been used or relied upon to hold the petitioner guilty. The enquiry officer has also recorded finding of financial loss to the State Government which never was the charge against the petitioner. Thus, the disciplinary proceeding has been conducted in contravention of the settled procedure and in violation of the principles of natural justice. In our opinion, the disciplinary proceeding is vitiated for gross violation of the settled procedure and the principles of natural justice. The enquiry officer has also recorded finding of guilt on the premise that the petitioner had failed to produce relevant materials as if it were the duty of the petitioner to prove his innocence. Unless the prosecution-the State Government had discharged its burden to prove the guilt, there was no question of calling upon the petitioner to prove his innocence. Thus, the entire disciplinary proceeding has been conducted topsy turvy. In absence of any oral or documentary evidence produced on behalf of the State Government, the petitioner could not have been held guilty, as has been done by the enquiry officer. 12. In our opinion, the finding of guilt recorded by the enquiry officer is based on no evidence and on extraneous materials. The said finding is not sustainable. In absence of any oral or documentary evidence produced on behalf of the State Government, the petitioner could not have been held guilty, as has been done by the enquiry officer. 12. In our opinion, the finding of guilt recorded by the enquiry officer is based on no evidence and on extraneous materials. The said finding is not sustainable. The disciplinary proceeding also has erred in not noticing the above referred irregularities committed by the enquiry officer and in accepting the finding of guilt recorded by the enquiry officer. The learned single Judge also has failed to notice the above referred infirmities in conducting the disciplinary proceeding. For the aforesaid reasons, the Letters Patent Appeal No. 459 of 2012 preferred by the writ petitioner is allowed. The impugned judgment and order dated 26th December 2011 passed by the learned single Judge in CWJC No. 6962 of 2007 is set aside. CWJC No. 6962 of 2007 is allowed. The impugned Notification dated 1st December 2006 issued by the State Government (Annexure-1 to the writ petition) is quashed and set aside. The petitioner is entitled to receive full pension from the date he retired from service and also the difference in salary for the period from 27th November 1998 to 31st January 1999, the period spent under suspension. The said period be treated as the period spent on duty with all consequential benefits. The State Government is directed to pay the amount of difference in salary for the aforesaid period from 27th November 1998 to 31st January 1999 to the petitioner within six weeks from today. The State Government is further directed to revise the Pension Payment Order (P.P.O.) keeping in view the last pay due to the petitioner on 31st January 1999. Such revised pension payment order will be issued within eight weeks from today. Within six weeks therefrom the petitioner will be paid entire amount of difference in pension up to date. In lieu of interest over the amount of difference in salary and arrears of pension, the State Government is directed to pay a cost of Rs. 50,000/- (fifty thousand) to the petitioner. The aforesaid amount of cost will be paid to the petitioner within six weeks from today. In lieu of interest over the amount of difference in salary and arrears of pension, the State Government is directed to pay a cost of Rs. 50,000/- (fifty thousand) to the petitioner. The aforesaid amount of cost will be paid to the petitioner within six weeks from today. In the event the State Government fails to pay the amount of difference in salary and the amount of arrears of pension and the amount of costs within the time specified, such amounts shall carry interest at the rate of 10 % per annum from the date of this order till the date of actual payment. In view of the above order, Letters Patent Appeal No. 249 of 2013 preferred by the State Government is dismissed. Interlocutory application stands disposed of. Registry will send copy of this judgment and order to the respondent nos. 2, 5 & 6 forthwith.