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2021 DIGILAW 129 (JHR)

Akhileshwar Kumar Singh v. State of Jharkhand

2021-01-28

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application was initially preferred by the petitioner for payment of full salary to the petitioner after deducting the suspension allowance along with interest. During pendency of this writ application an order of punishment has been passed as contained in Memo No.2366 dt. 13.4.2010; whereby several punishments were imposed upon the petitioner. The petitioner filed an interlocutory application being I.A No.3667 of 2012 for challenging the aforesaid order dated 13.4.2010 by making amendment in the prayer portion of writ application. The said application was allowed vide order dated 07.01.13. 3. Mr. Krishna Murari, learned counsel for the petitioner submits that this petitioner retired from service on 31.01.2009 and admittedly; no departmental proceeding was initiated against him while he was in service. He further submits that the charge sheet issued on 07.10.2009 under 43 (b) of Bihar Pension Rules is non-est in the eye of law, inasmuch as, the same is permissible subject to the limitation of four years from the date of occurrence and also it has to be initiated with the sanction of a competent authority, i.e. the State Government which is absent in this case. Mr. Murari further contended that from the enquiry report it would transpire that the Inquiry Officer fixed 14.12.2009 as the date of appearance of the petitioner but the petitioner could not appear on that date as he did not receive any such information and thereafter, on 17.12.2009 itself the Inquiry Officer had submitted the enquiry report. This clearly goes to show that no proper opportunity has been given to the petitioner to defend himself. He further assailed the entire proceeding on the ground that no witness has been examined from either side and only to complete the formality; the enquiry proceeding has been conducted and the charge has been proved. This clearly goes to show that no proper opportunity has been given to the petitioner to defend himself. He further assailed the entire proceeding on the ground that no witness has been examined from either side and only to complete the formality; the enquiry proceeding has been conducted and the charge has been proved. Learned counsel for the petitioner has reiterated his claim that though the petitioner was suspended initially but no departmental proceeding was ever initiated or concluded during his service period and the proceeding which was initiated subsequent to his retirement is non est in the eye of law for following reasons: (A) The cause of action indicated in the memo of charge is up to the year 1994 and as such as per the specific provision under Rule 43 (b) of the Bihar Pension Rules; the same is beyond the period of four years from the date of issuance of charge sheet. (B) The charge sheet has not been issued by a competent authority, inasmuch as, after retirement of any government servant; as per Rule 43 (b) of Bihar Pension Rules, it is only the State Government which is empowered to initiate such proceeding. (C) There is a gross violation of Principle of natural justice, inasmuch as, the date of appearance was fixed on 14.12.2009 and since the petitioner could not appear on that date, the Inquiry Officer had submitted the enquiry report on 17.12.2009. (D) From the impugned order it does not transpire that proper opportunity had been given to the petitioner and it is a completely non-speaking and non-reasoned order. 4. Mr. Pankaj Chowdhary learned counsel for the respondent State tries to defend the impugned order and submits that a complaint was received by the Headmaster, wherein it has been stated that the petitioner had tried to commit rape upon a Scheduled Caste girl of Class X. Thereafter, an enquiry was set up by the Deputy Director, Secondary Education, Patna and the petitioner was suspended vide memo no. 694 dated 27.11.1990. A departmental proceeding was initiated. The petitioner was asked to report in the office of the District Education Officer, Ranchi, however the petitioner never reported there and he completely absconded for the entire period so much so that the departmental proceeding could not culminate into conclusion and the petitioner retired on 31.01.2009. 694 dated 27.11.1990. A departmental proceeding was initiated. The petitioner was asked to report in the office of the District Education Officer, Ranchi, however the petitioner never reported there and he completely absconded for the entire period so much so that the departmental proceeding could not culminate into conclusion and the petitioner retired on 31.01.2009. However, after his retirement, a fresh charge sheet was issued against this petitioner under Memo No.4826 dt. 7.10.2009 by the District Education Officer and thereafter, a proceeding was conducted and the petitioner was found guilty for the offence and an order of punishment has been passed. However, Mr. Chowdhary could not demonstrate that before issuing the fresh charge sheet after retirement of the petitioner for a cause of action which is much beyond the stipulated period of four years from the date of issuance of charge sheet, whether any sanction was taken from the competent authority, i.e. the State Government as required under Rule 43(b) of the Bihar Pension Rules. He further submits that the offence was grave in nature; as such no relief should be granted to the petitioner. 5. Having heard learned counsel for the rival parties and after going through the documents and averments made in the respective affidavits, it clearly transpires that the petitioner was suspended on 27.11.1990; however, admittedly; the said departmental proceeding could not culminate into a logical conclusion. From record it transpires that the petitioner retired from service on 31.01.2009 and after his retirement a fresh charge sheet was issued purportedly under Section 43 (b) of the Bihar Pension Rules for the same offence for which the petitioner was suspended in the year 1990-91. Now, the law is no more res integra that any action to be taken under Rule 43 (b) has to adhere to the strict provision as enunciated in the Rule. In the instant case, admittedly; the cause of action is of the year 1990 and the charge sheet has been issued after retirement of the petitioner which is of the year 2009. Therefore, the same is beyond a period of four years. It has been contended by Mr. In the instant case, admittedly; the cause of action is of the year 1990 and the charge sheet has been issued after retirement of the petitioner which is of the year 2009. Therefore, the same is beyond a period of four years. It has been contended by Mr. Krishna Murari, learned counsel for the petitioner that no charge sheet has been issued during his service period and he tried to justify the same by referring to Annexure 7 to the rejoinder filed by him wherein a letter was written to the petitioner as to whether the charge sheet has been issued to him or not. At this stage, it is pertinent to mention here that the respondent State could not demonstrate as to whether any charge sheet was issued to the petitioner or not during his period of suspension/service. Further, it clearly transpires that after his retirement a fresh charge sheet has been issued. It is not the case of the respondent State that earlier the charge sheet was issued during the service period of the petitioner and the same has been converted in the proceeding under Rule 43 (b); rather from the impugned order it clearly transpires that it is a fresh charge sheet issued to the petitioner. As such, in view of the specific provision of 43 (b) of the Bihar Pension Rules that the same is to be issued with the sanction of the State Government and shall not be with respect to any event which took place beyond a period of four years; the present charge sheet is dehors the law. In this view of the matter, the entire proceeding which started pursuant to the retirement of this petitioner is vitiated. It goes without saying that even the sanction of the State Government has not been taken in this case. In this regard, I am in agreement with the learned counsel for the petitioner that the proceeding which was started after retirement of the petitioner were a mere formality, inasmuch as, only on one date the petitioner could not appear; and just after four days the Inquiry Officer had submitted his report. As such, even the principle of natural justice was not adhered to in true letter and spirit. In view of the aforesaid findings, the instant writ application is allowed. The petitioner is entitled to all consequential benefits in accordance with law.