Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5045 of 2007 ====================================================== Smt.Gaya Devi , W/o Late Prayag Sahani (Ex. J.E.E.), resident of village – Monjhaul (Chhatti Road), P.O. – Monjhaul, District – Begusarai (Bihar) Versus .... .... Petitioner/s 1. The State Of Bihar through the Secretary, Energy Department, Patna, Bihar 2. Chairman, Bihar State Electricity Board, Patna (Bihar) 3. Secretary, General Administration Department Bihar State Electricity Board, Patna (Bihar) 4. General Manager - cum – Chief Engineer, Power Supply Area, Hazaribagh, Jharkhand 5. Electrical Executive Engineer, Power Supply, Sub division – Tenughat, Gomia Hazaribagh, Jharkhand 6. Joint Secretary, General Administrative Department Bihar State Electricity Board, Patna (Bihar) .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : For the Respondent/s : Mr. Vijay Kumar Verma, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 4 20-08-2013 Heard learned counsel for the petitioner, learned A.C. to Standing Counsel No. 27, who appears on behalf of respondent
Legal Reasoning
no. 1, Sri Vijay Kumar Verma, learned counsel appearing on behalf of respondent no. 2, 3 & 6 / Bihar State Electricity Board and learned counsel appearing on behalf of respondent no. 4 and 5 / Jharkhand State Electricity Board. While husband of the petitioner was posted at Power Sub Station, Kathara as Additional Assistant Electrical Engineer a devastating fire had taken place in the Power Sub Station in the Patna High Court CWJC No.5045 of 2007 (4) dt.20-08-2013 2/6 year 1998 and thereafter on 19/5/1999 an explanation was sought for from the husband of the petitioner vide Annexure – 6 to the writ petition , which was replied on 1/6/1999 vide Annexure - 7 to the writ petition. After filing of the explanation no decision was taken by the authority concerned and in the meanwhile on 31/1/2000 the husband of the petitioner retired from service. Thereafter vide Annexure – 9 to the writ petition a recommendation was made by the General Manager on 29/4/2002 for exonerating the husband of the petitioner. However, subsequently, a second show cause notice was issued proposing to impose punishment by way of deduction of 50% from the pension amount of the husband of the petitioner, which was replied by husband of the petitioner giving detailed reason. It was also pleaded vide Annexure – 11 to the writ petition that show cause notice was contrary to the provisions contained in Rule 139 as well as Rule 43(b) of the Bihar Pension Rules. However, on 24/4/2003 the impugned order was passed vide Annexure – 12 to the writ petition and a decision was taken to deduct 5 % from pension of the husband of the petitioner. After the order vide Annexure – 12 was passed, the husband of the petitioner preferred an appeal before the competent authority within time on 19/5/2003. However, till date, no decision was taken on the Patna High Court CWJC No.5045 of 2007 (4) dt.20-08-2013 3/6 appeal. In the meanwhile, during the pendency of appeal the husband of petitioner died and as such the petitioner approached this court while invoking its writ jurisdiction under Article 226 of the Constitution Of India the present writ petition was filed on 18/4/2007. In this case a counter affidavit has been filed in the year 2013 and it has been accepted that till date no decision has been taken on appeal preferred by the husband of the petitioner. Learned counsel for the petitioner while assailing the order of punishment contained in Annexure – 12 to the writ petition has argued that though punishment of reduction of 5% from pension of the husband of the petitioner was passed, no regular departmental proceeding was initiated. Only by way of calling for explanation this punishment order was imposed that too much after retirement of the husband of the petitioner. It was submitted that even no order was passed under Rule 43(b) of the Bihar Pension Rules for continuing with the departmental proceeding nor any regular departmental proceeding was initiated. It has further been argued that the competent authority after examining reply to second show cause filed by the husband of the petitioner had concluded that the husband of the petitioner had not committed any misconduct or negligence was found while Patna High Court CWJC No.5045 of 2007 (4) dt.20-08-2013 4/6 discharging his duty and it was recommended to drop the case against the husband of the petitioner, even then, the competent authority initially contemplated to deduct 50% from pension of the husband of the petitioner. However, after filing of second show cause, keeping in view the fact that husband of the petitioner had remained only for three months posted at the place where incidence of fire had taken place decided to deduct 5% from pension of the husband of the petitioner. It was argued that the order impugned has been passed contrary to the established principle of natural justice in view of the fact that no departmental proceeding was initiated and in a stale matter the punishment order was passed much after retirement of the husband of the petitioner. Sri Vijay Kumar Verma, learned counsel for respondent / Bihar State Electricity Board by referring to averment made in the counter affidavit submits that the explanation submitted by the husband of the petitioner was examined and thereafter even second show cause notice was given and only then order of punishment has been passed which requires no interference. He further submits that in identical situation order for punishment of deduction of 10% from pension in respect of other officers were passed, which has been mentioned Patna High Court CWJC No.5045 of 2007 (4) dt.20-08-2013 5/6 in paragraph no. 9 of the counter affidavit. On aforesaid ground he has submitted for rejecting the writ petition. Learned counsel for the Board has not disputed that no regular departmental proceeding was initiated against the husband of the petitioner. Only asking explanation from the husband of the petitioner order of punishment was passed. It is true that appeal was filed by husband of the petitioner in the year 2003 and it has been admitted in the counter affidavit that till date no decision on the appeal has been taken, therefore, it would not be appropriate for this court to direct the appellate authority to examine the appeal after expiry of about 10 years from the date of filing of the appeal, and as such, the court thought it proper to examine the case on merit and decide the same. In view of the fact that alleged so called occurrence had taken place in the year 1998 and thereafter on calling for explanation, the husband of the petitioner had submitted it in the year 1999 itself, there was no reason for the authority concerned to sit tight over the matter and take decision for imposing punishment after retirement of the husband of the petitioner. Since no regular departmental proceeding was initiated, the court is of the opinion that the order impugned is not sustainable in the eye of law. Accordingly, the order impugned i.e. order contained Patna High Court CWJC No.5045 of 2007 (4) dt.20-08-2013 6/6 in Annexure – 12 to the writ petition is hereby set aside. Respondents, particularly respondent no. 3 / Secretary, General Administration Department, Bihar State Electricity Board is directed to calculate the difference of amount which was deducted from pension of the husband of the petitioner and pay the said amount to the petitioner within a period of three months from the date of receipt / production of a copy of this order.
Decision
The writ petition stands allowed. (Rakesh Kumar, J) Praful/-