Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4269 of 2002 ====================================================== Nath Jee Singh son of Ram Bihari Singh, resident of village Barkagaon, P.S. Sadar, District- Bhojpur. Versus .... .... Petitioner/s 1.The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2.The Union of India through the Accountant General, Bihar, Patna. 3.The D.G. of Police-cum- I.G of Police, Military Police, Bihar, Patna. 4.The A.I.G. of Police, Military Police, Bihar, Patna. 5.The commandant, Jharkhand Armed Police-4, Bokaro 6. The Commandant, Bihar Armed Police-6, Muzaffarpur. .... .... Respondent/s ====================================================== Appearance : For the Bihar State : Mr. Maruthy Nath Roy A.C. to S.C. 25 For Jharkhand : Mr. Dhruba Mukherjee ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 6 12-04-2013 The petitioner superannuated as a Havaldar. He is aggrieved by an order of punishment passed in a Departmental Proceeding No. 28 of 1987, which was concluded long after his superannuation and punishment of dismissal from service has been awarded with effect from the date of his superannuation i.e. 30th June, 1997. The petitioner in 1987 was charged in the departmental proceeding for demanding illegal gratification while posted at Muzaffarpur. A departmental proceeding was instituted against him as well as a criminal case launched. He was charge sheeted in the criminal case under Prevention of Corruption Act and tried. While the departmental proceeding was pending and the trial was pending, the petitioner superannuated. No sanction order
Facts
Patna High Court CWJC No.4269 of 2002 (6) dt.12-04-2013 2 in terms of Rule 43(a) of the Bihar Pension Rules was obtained from the State Government to continue the proceeding after the petitioner superannuated. The petitioner was then found guilty in the departmental proceeding but again no order of punishment was passed, as apparently the authorities were waiting for the judgment in the criminal case, which was on identical charge. Now, the learned Special Judge (Vigilance), North Bihar, Patna. found petitioner guilty and sentenced him to one year imprisonment with fine. The disciplinary authority now taking note of the conviction in the criminal case passed order for petitioner’s dismissal from service but realized that the petitioner superannuated, he ordered his dismissal from the date he superannuates. Pension that had been paid, in the meantime, was directed to be recovered. Gratuity and other retiral dues were directed to be forfeited. These are the orders, which were challenged by the petitioner. On behalf of the petitioner it is alleged that firstly that as the petitioner superannuated during the pendency of the proceedings, sanction of the State Government in terms of Rule 43(a) of the Bihar Pension Rules was mandatory before the proceeding could be continued. That not having been done so by Patna High Court CWJC No.4269 of 2002 (6) dt.12-04-2013 3 the disciplinary authority lacks jurisdiction in the matter. It is then alleged that there cannot be dismissal from the date of superannuation of an employee, who has retired and lastly, this Court having allowed the petitioner’s criminal appeal and acquitted him, the order passed by the disciplinary authority stands vitiated. Having considered the matter, in my view, all the three issues leads one conclusion that this writ petition has to be allowed. So far as first contention is concerned, the stand is correct. Even a proceeding, which has been instituted while the petitioner was in service it cannot be carried on after he superannuates. The reason is simple that the disciplinary authority’s control over an employee is by virtue of master and servant relationship. Once an employee superannuates, the master and servant relationship comes to an end. Thus, the authority ceases control over an employee. That being so the disciplinary proceeding has come to an end except where in terms of Rule 43(a) of the Bihar Pension Rules order of sanction is obtained from the State Government to continue the proceeding. The continuance of proceeding would be only for the purposes of passing order with regard to payment of retiral dues. The order Patna High Court CWJC No.4269 of 2002 (6) dt.12-04-2013 4 then can be passed with reference to Rule 139,inter alia , there being not satisfactory service, the pension and retiral dues can be with-held. It is for this purpose this Court had asked the respondents to file a specific counter affidavit on the issue of Rule 43(a) of the Bihar Pension Rules by order dated 2.8.2002. Unfortunately, pursuant to that order a counter affidavit has been filed in which nothing is said regarding any sanction obtained from the State Government in terms of Rule 43(a) of the Bihar Pension Rules. Thus, as assumed that no order in terms of Rule 43(a) having been passed whether the proceeding is valid or not. The very proceeding would be invalid once the person retired when no sanction order in terms of Rule 43(a) of the Bihar Pension Rules is obtained from the State Government to continue the proceeding. Thus, the entire disciplinary proceeding stands
Legal Reasoning
acquittal of the petitioner by this Court in appeal, the punishment order passed in the disciplinary proceeding could not survive.
Arguments
vitiated. That apart even the contention in regard to punishment is well founded after superannuation, there cannot be a disciplinary proceeding because master and servant relationship comes to an end. There cannot be subsistence of relationship. Once the relationship itself has ended, such an order of punishment could not have been passed. The order with-holding retiral dues could have been passed in terms of Rule 139 alone but before that could be done, sanction of the State Government in terms of Rule 43(a) Patna High Court CWJC No.4269 of 2002 (6) dt.12-04-2013 5 is required. Now the order of punishment has been issued clearly noticing that it was awaiting the judgment in the criminal case no sooner the judgment of conviction was received, the punishment order was passed stating that the petitioner has been found guilty in the disciplinary proceeding . In that view of the matter, the punishment, as aforesaid, is enforced. It now appears that the petitioner’s criminal appeal before this Court was allowed though recently. The petitioner was acquitted of the charges. In view of
Decision
In the result, for the reasons noted above, I am left with no option but to allow this writ petition. The order passed by the disciplinary authority in the disciplinary proceeding is hereby quashed with consequential relief to which the petitioner is entitled. singh/- (Navaniti Prasad Singh, J)