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2018 DIGILAW 1625 (PAT)

Umesh Narayan Singh v. State of Bihar

2018-10-11

SHIVAJI PANDEY

body2018
JUDGMENT : Shivaji Pandey, J. Heard learned counsel for the petitioner and counsel for the State. 2. In this case, the petitioner is challenging the order contained in Memo No. 510 dated 10.03.2017, whereby and whereunder, in exercise of power under Section 43(b) of the Bihar Pension Rules, punishment has been inflicted by way of deducting 5% pension amount for further five years. 3. This writ application can be disposed of in a short point that the petitioner was a Junior Engineer at Minapur Block in the district of Muzaffarpur and he was discharging the duty of Technical Adviser for the Gram Panchayat, Minapur. He was served with the chargesheet after 2.12.2015 and the charge-sheet itself shows that the same was framed on the aforesaid date. In the charge-sheet, it has been mentioned that during the year 2004-05 itself, the scheme no. 61/2004-05 was carried out but, in the subsequent year i.e. during the year 2006-07, again the estimate was prepared by the petitioner for the scheme no. 01/2006-07 for the purpose of repair of the road and, thereby, he had intended to divert the fund of the Government. 4. It appears that the enquiry was conduced and the finding has been recorded against the petitioner by the Enquiry Officer. 5. The matter relates to the period of 2006-07. The proceeding has been initiated on 12.7.2016 and the petitioner has superannuated from service on 31.1.2015. Thus, admittedly, the proceeding has been initiated after the superannuation of the petitioner. Section 43(b) of the Bihar Pension Rule speaks eloquently speaks that any misconduct committed prior to the four years of the retirement will not be subject matter of departmental proceeding. 6. Admittedly, in the present case, the purported misconduct is of the year 2006-07 and the proceeding has been initiated after superannuation of the petitioner. In that view of the matter, straightway the provision of Section 43(b) of the Bihar Pension Rules is attracted and, as such, initiation of departmental proceeding against the petitioner itself is vitiated. 7. It has to be seen that after preparation of the estimate, no action, thereafter, has been taken from the side of the petitioner. In that event also, it is very difficult for this Court to accept the plea of the State that the petitioner had committed misconduct in any manner. 7. It has to be seen that after preparation of the estimate, no action, thereafter, has been taken from the side of the petitioner. In that event also, it is very difficult for this Court to accept the plea of the State that the petitioner had committed misconduct in any manner. So, the present petition is allowed on two counts, firstly, no proceeding can be initiated with respect to the charge which has purportedly been committed more than four years prior as well as it is very difficult to arrive to a finding that the petitioner has committed any misconduct by preparing an estimate of the year 2006-07 for the purpose of repairing of the road. There is no finding recorded that the road was in a good condition and, thus, mere preparation of the estimate cannot constitute a misconduct even if the construction was done one year earlier. 8. Accordingly, the present writ application is allowed and the impugned order contained in Memo No. 510 dated 10.03.2017 is set aside.