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2023 DIGILAW 446 (PAT)

Kedar Prasad v. State of Bihar

2023-04-10

RAJEEV RANJAN PRASAD

body2023
ORDER Heard Mr. Y.V. Giri, learned senior counsel for the petitioner assisted by Mr. Nikhil Kumar Agrawal, learned Advocate and learned counsel for the State. 2. Petitioner, in the present case, is seeking the following reliefs: – “i. To issue an appropriate writ/order/direction in the nature of Certiorari for quashing the letter no. 5502 dated 02.11.2012 (as contained in Annexure-8) whereby departmental proceeding was initiated against the petitioner under Section 45(B) of the Bihar Pension Rules and a memo of charge was issued. ii. To issue an appropriate writ/order/direction in the nature of Certiorari for quashing the Enquiry Report dated 27.07.2015, as contained in memo no. 315 dated 27.07.2015 (as contained in Annexure 14/A) in which both the charges were said to be proved against the petitioner. iii. To issue an appropriate writ/order/direction in the nature of Certiorari for quashing the Order bearing No. 4526 dated 09.10.2015 (as contained in Annexure – 17) whereby and whereunder the punishment of “15% reduction in the pension” has been imposed upon the petitioner. iv. To issue an appropriate writ/order/direction in the nature of Mandamus setting aside the entire departmental proceeding initiated against the petitioner vide Order dated 02.11.2012. v. To issue an appropriate writ/order/direction in the nature of Mandamus commanding the respondents to make the payment of full pension from the date of the order of punishment and other dues legally admissible to the petitioner which have been illegally and malafidely deducted by the Respondents along with interest. vi. To any other relief or reliefs for which the Petitioner is entitled.” 3. Learned counsel for the petitioner submits that the petitioner retired on 31.0.1.2012 from the post of Deputy Commissioner (Excise), Department of Registration, Excise and Prohibition. He had been earlier authorized vide letter no. 1688 dated 23.06.2011 issued by respondent no. 6 to file a Special Leave Petition (SLP) in the Hon’ble Supreme Court against the order dated 02.12.2010 passed in CWJC No. 2101/2000 by the Hon’ble Patna High Court. It is his case that along with the said letter he did not receive the entire brief pertaining to the writ application and was merely provided with the grounds of appeal with a direction to contact Mr. Gopal Singh, Advocate, Supreme Court, for the needful. 4. It is submitted that for various reasons which he has explained, the SLP was filed belatedly. Gopal Singh, Advocate, Supreme Court, for the needful. 4. It is submitted that for various reasons which he has explained, the SLP was filed belatedly. It is stated that on 06.02.2012 when the SLP was taken up for consideration, learned senior counsel representing the State took time to file a better affidavit explaining the delay of 320 days in filing the SLP as also stating as to what action had been taken against the erring officer(s) who were responsible for causing the delay. 5. Learned counsel submits that in a most arbitrary and malafide manner the petitioner was served with a notice vide letter no. 639 dated 01.03.2012 and was asked to submit his reply within fifteen (15) days as to why appropriate proceeding under Bihar Pension Rules, 1950 (hereinafter referred to as the “Pension Rules”) be not initiated against him. 6. It is submitted that the petitioner filed his reply dated 16.03.2012 (Annexure ‘7’) but without considering the show cause reply to the petitioner and in absolutely perfunctory manner, departmental proceeding was initiated against the petitioner under Section 43(b) of the Pension Rules and a memo of charge was issued vide letter no. 5502 dated 02.11.2012. On receipt of the memo of charge the petitioner requested the respondents to supply a copy of the documents which form basis of the memo of charge. It is submitted that the respondents made available a copy of the documents and thereafter the petitioner submitted a detailed reply on 08.02.2013. In paragraph ‘15’ of the writ application the petitioner has reproduced the stand taken by him in his reply. 7. Learned counsel for the petitioner submits that the disciplinary proceeding was continued on several dates. The petitioner submitted his replies during this period which are Annexure ‘12’, ‘13’ and ‘13/A’ respectively. The Enquiry Officer submitted a report as contained in Annexure ‘14/A’ and on a bare perusal of the same, it would appear that Enquiry Officer has not at all taken note of the defence of the petitioner. 8. It is submitted that Annexure ‘14/A’ which is the enquiry report is perversed inasmuch as it does not take note of the stand of the petitioner muchless the materials brought by the petitioner on the record of the disciplinary proceeding. 9. 8. It is submitted that Annexure ‘14/A’ which is the enquiry report is perversed inasmuch as it does not take note of the stand of the petitioner muchless the materials brought by the petitioner on the record of the disciplinary proceeding. 9. Learned counsel submits that the petitioner was served with a copy of the enquiry report and was called upon to submit a second show cause which he did by submitting his second show cause dated 12.08.2015 (Annexure ‘15’). In his second show cause he has categorically stated that the findings of the Enquiry Officer do not show whether he has considered all aspects of the matter. He submitted that the findings are not speaking and Enquiry Officer being a quasi-judicial authority was required to apply his judicious mind. 10. It is submitted that the second show cause was a mere empty formality as it would appear from the order of punishment dated 09.10.2015 (Annexure ‘17’) that the disciplinary authority once again did not take note of the submissions of the petitioner and proceeded to pass the impugned order on the basis of the opinion of the department. 11. Learned counsel further submits that pursuant to the order of punishment the authorities reduced the pension of the petitioner. 12. A counter affidavit has been filed on behalf of the State in which it is stated that the reply of the petitioner has been considered by the Enquiry Officer and the disciplinary authority. It is submitted that there is no question of violation of Article 14, 16 and 21 of the Constitution of India as alleged by the petitioner. Consideration 13. Having regard to the submission noted hereinabove and the materials available on the record, this Court is of the considered opinion that the enquiry report as contained in Annexure ‘14/A’ and the order of punishment as contained in Annexure ‘17’ do not inspire confidence. Consideration 13. Having regard to the submission noted hereinabove and the materials available on the record, this Court is of the considered opinion that the enquiry report as contained in Annexure ‘14/A’ and the order of punishment as contained in Annexure ‘17’ do not inspire confidence. For a ready reference Annexure ‘14/A’ and Annexure ‘17’ both are being reproduced hereunder: – ^^Jh dsnkj izlkn] rRdkyhu mik;qDr ¼vk-Hkk-½] lEizfr lsokfuo`Ùk ds fo:} lapkfyr foHkkxh; dk;Zokgh la[;k 48@14 Jh dsnkj izlkn] rRdkyhu mik;qDr mRikn ¼vk-Hkk-½] laizfr lsok fuo`Ùk ds fo:} lapkfyr foHkkxh; dk;Zokgh ds nkSjku esjs U;k;ky; esa vkjksih inkfèkdkjh Jh dsnkj izlkn] rRdkyh mik;qDr mRikn ¼vk-Hkk-½] laizfr lsok fuo`Ùk ,oa bl okn ds izLrqfrdj.k inkfèkdkjh] Jh lR;sUnz dqekj flUgk] mik;qDr mRikn ¼vk-Hkk-½] fucaèku mRiknu ,oa e|fu"ks| foHkkx mifLFkr gq,A vkjksih inkfèkdkjh ds fo:} fuEufyf[kr vkjksi gS& vkjksi lañ&1 ,lñ,yñihñ la[;k 2246@12 dks nk;j djus esa vizR;kf'kr foyEc djuk] jktLo fo"k;d U;kf;d ekeys esa vkns'k ikyu esa f'kfFkyrk cjrukA vkjksi lañ&1 ds lacaèk esa vkjksih inkfèkdkjh dk dguk gS fd esjs }kjk ,fQMsfoV dkxtkr@QSDl LihM iksLV }kjk fnYYkh] ¼ljdkjh odhy ds ikl½ fnukad 04-01-2012 dks Hkst fn;k x;k FkkA vkjksih inkfèkdkjh ds }kjk fn;k x;k vfHkdFku ij foHkkxh; earO; ls Li"V gS fd fnukad 11-02-2013 }kjk fyf[kr vfHkdFku dh leh{kk ls izrhr gksrk gS fd ,lñ,yñihñ nk;j djus esa Jh izlkn ls foyEc gqvk gSA Jh izlkn }kjk vius mPpkfèkdkjh dks Hkh fyf[kr esa dksbZ lwpuk ugha nh x;hA vr% vkjksi la[;k&1 izekf.kr gksrk gSA vkjksi lañ&2 ekuuh; loksZPp U;k;ky; esa foHkkx dh Nfo èkwfey djukA vkjksi lañ&2 ds lacaèk esa vkjksih inkfèkdkjh dk dguk gS fd Nfo èkwfey ugha gqbZ gS vkSj u gh ekuuh; loksZPp U;k;ky; esa foHkkx dh fLFkfr gkL;kLin gqbZ gSA ysfdu foHkkxh; earO; ;s Li"V gS fd lle; ,lñ,yñihñ nk;j ugha gksus ,oa vR;fèkd foyac ds dkj.k gh ekuuh; loksZPp U;k;ky; us fnukad 06-02-2012 ds vkns'k esa Ýs'k ,fQMsfoV QkbZy djus ds lacaèk esa Li"V vkns'k fn;k Fkk] tks gkL;kLin gSA vr% vkjksi lañ&2 Hkh izekf.kr gksrk gSA vr% mDr vkjksi lañ&1 ,oa 2 izekf.kr gksrk gS blfy, lafpdk iz'kklh foHkkx ¼lfpo] fucaèku] mRikn] ,oa e|fu"ks| foHkkx½ dks okil dh tkrh gS ,oa mldh izfr foHkkxh; tkap vk;qDr] fcgkj iVuk dks izsf"kr dh tk;A mDr ds vkyksd esa lHkh lacafèkr dks lwfpr djsaA gñ@& ¼Jh lqfuy dqekj flag½ izèkku lfpo] y?kq ty lalkèku foHkkx&vij foHkkxh; tkap vk;qDRk fcgkj] iVukA** ANNEXURE ‘17’ ^^fcgkj ljdkj fucaèku] mRikn ,oa e|fu"ks| foHkkx vfèklwpuk iVuk fnukad 09-10-2015 1- la[;k&9@vkjksi ¼jktñ mñ½&2&04@2012 4526@Jh dsnkj izlkn] rRdkyhu mik;qDr mRikn ¼vkñHkkñ½ fcgkj] iVuk lEizfr lsokfuo`Ùk ds fo:} lhMCY;wtslh uEcj 2101@2000 fcgkj jkT; cuke lsUVªy cksMZ vkWQ Mk;jsDV VsDlst esa fnukad 02-12-2010 dks ikfjr U;k;kns'k ds ckn ekuuh; loksZPp U;k;ky;] fnYyh esa ,l,yih nk;j djus esa vdkj.k vizR;kf'kr foyEc dj jktLo fo"k;d U;kf;d vkns'k ds ikyu esa f'kfFkyrk cjrus ,oa blds QyLo:i ekuuh; loksZPp U;k;ky; esa foHkkx dh Nfo èkwfey gksus ds vkjksi esa foHkkxh; ladYi lañ&1751 fnukad 29-04-2014 }kjk fcgkj isa'ku fu;ekoyh] 1950 esa 43¼ch½ ds rgr foHkkxh; dk;Zokgh lapkfyr dh x;hA 2- lapkyu inkfèkdkjh≶&vij foHkkxh; tk¡p vk;qDr] fcgkj] iVuk ds Kkikad&315 fnukad 27-07-2015 }kjk foHkkxh; dk;Zokgh dk tk¡p izfrosnu foHkkx dks lefiZr fd;k gS] ftlesa nksuksa vkjksiksa dks izekf.kr gksuk izfrosfnr fd;k x;k gSA 3- lapkyu inkfèkdkjh ls izkIr tk¡p izfrosnu dh izfr layXu djrs gq, foHkkxh; i=kad&3724 fnukad 12-08-2015 }kjk Jh dsnkj izlkn ls fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh] 2005 ds fu;e 18¼3½ ds varxZr f}rh; cpko c;ku dh ek¡x dh x;hA 4- Jh izlkn }kjk fnukad 12-08-2015 dks gh foHkkx esa ,d vH;kosnu lefiZr fd;k x;k] ftlls ;g dgk x;k Fkk fd lapkyu inkfèkdkjh ds tk¡p izfrosnu ls ;g Li"V ugha gks jgk gS fd lapkyu inkfèkdkjh }kjk lHkh rF;ksa dh leh{kk dh x;h Fkh vFkok ugha vkSj muds }kjk eq[kj vkns'k Hkh vfHkfyf[kr ugha fd, tkus dh ckr vH;kosnu esa dgh x;hA iqu% fnukad 21-08-2015 dks Jh izlkn }kjk f}rh; cpko c;ku ds lacaèk esa foHkkx esa ,d vH;kosnu lefiZr fd;k x;k ftlesa muds }kjk fnukad 12-08-2015 ds vH;kosnu ij lE;d fuLrkj dh vis{kk dh xbZ ,oa ,d ekg ds le; dh ek¡x dh xbZA ijUrq] ;g Ikk;k x;k fd muds }kjk lefiZr rF;ksa vkSj fyf[kr vfHkdFku rFkk foHkkxh; earO; ds leh{kksijkUr gh lapkyu inkfèkdkjh }kjk vkjksiksa dks izekf.kr ik;k x;kA vr,o mDr ds vkyksd esa mudk vH;kosnu Lohdkj ;ksX; ugha Ikk;k x;kA 5- vr% iw.kZ fopkjksijkUr lapkyu inkfèkdkjh ds tk¡p izfrosnu ls lger gksrs gq, fcgkj isa'ku fu;ekoyh] 1950 ds fu;e&139¼ch½ ds rgr~ iznÙk 'kfDr;ksa dk iz;ksx djrs gq, Jh izlkn ds fo:} muds isa'ku ls 15¼iUnzg½ izfr'kr dVkSrh djus dk n.M vfèkjksfir fd;k tkrk gSA 6- blesa l{ke izkfèkdkj dh LohÑfr izkIr gSA fcgkj jkT;iky ds vkns'k ls] gñ@& ¼vHk; jkt½ ljdkj ds fo'ks"k lfpo fcgkj] iVukA** 14. It is evident from the materials placed before this Court that neither the Enquiry Officer nor the disciplinary authority has considered the stand of the petitioner. Perhaps they were in hot haste and to this court it appears that any action taken by a public authority in haste goes a long way to show that the action was malafide. This Court, therefore, finds that Annexure ‘14/A’ and Annexure ‘17’ as also the consequential order of reduction of pension of the petitioner are highly arbitrary and those cannot sustain the test of law. 15. In result, the impugned orders as contained in Annexure ‘8’, Annexure ‘14/A’ and Annexure ‘17’ are hereby quashed. 16. The petitioner has retired in the year 2012 and because of a completely unreasoned order he has been allowed to suffer and recoveries have been made from his pensionary benefits. This Court, therefore, directs the respondents to pay back the entire amount which have been recovered from the petitioner with interest @ 9% per annum from the date of deduction till the date of payment. 17. The petitioner would be entitled for the arrears of pension which have been reduced and paid at the reduced rate by virture of the impugned order. All consequential benefits shall follow. 18. This Writ application is allowed.