Bhubneshwar Sharma v. The State of Bihar

Heard learned counsel for both the sides. The writ petitioner-appellant was appointed as an Assistant Engineer in 1965 and was posted in the Minor Irrigation Department in 1989. A criminal case was registered against the writ petitioner under sections 420, 467, 468, 471, 409 and 120B of the Indian Penal Code. The main allegation against the writ petitioner was that without taking sanction from the competent authority of the Government and without following the procedure of the NREP, purchases of Rs. 10.60 lacs were made and 2 payments were made beyond his power, as the same was not existent. Simultaneously, besides the criminal proceeding, a departmental proceeding was also initiated against the writ petitioner. It is submitted by learned counsel for the appellant the criminal case is still pending. Meanwhile, since his suspension prolonged very long, he approached this Court by filing a writ application bearing C.W.J.C. No. 4336 of 1994, in which the respondent authorities were directed to dispose of the departmental proceeding expeditiously and it was also directed that his suspension would stand automatically revoked after expiry of six months. Consequently, the suspension of the appellant was revoked, as the departmental inquiry prolonged. In the departmental proceeding the appellant was found guilty and he was dismissed from service. The writ petitioner approached this Court by filing another writ application bearing C.W.J.C. No. 5451 of 1996 against the order of dismissal, in which it was stated that no second show-cause notice was served on the petitioner. In fact, reply to second show-cause notice was absolutely futile. The said writ application was disposed of directing 3 the State Government to reconsider the matter and order of dismissal of the writ petitioner was set aside. In the above case, the learned Single Judge further directed the State Government to examine the propriety of the departmental proceeding. Before passing any further order, the writ petitioner superannuated from the services. By order dated

24.01.1998 he was imposed punishment under Rule 43(b) of the Bihar Pension Rules(hereinafter to be referred to as “Rules”) and hundred percent pension and gratuity of the writ petitioner were withheld for ever. After the above communication, by annexure 2, three days thereafter on

27.1.1998 he was informed that since the disciplinary proceeding was not completed during the service period of the appellant, the Government has decided to proceed against him under Rule 43(b) of the Rules. Rule 43(b) of the Rules reads as follows:- themselves “43.(b). The State Government further right of reserve withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his 4 service including, service rendered on re- employment after retirement: Provided that – (a) (i) departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; shall not be instituted save with the sanction of the State Government; shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (ii) (iii) shall be conducted by such authority and at such place or places as the State Government may direct and accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed.

From the communication, as contained annexure 2 dated 27.01.1998, it is clear that at that time departmental proceeding was not completed. In fact, only on 27.01.1998 it was decided to convert the departmental proceeding into a proceeding under Rule 43(b) of the Rules, as the earlier communication was set aside by this Court, as referred to above, asking the State Government 5 to consider the propriety of the departmental proceeding and second show-cause notice was given to the appellant. But in the communication, which is under challenge, it has been reiterated that reply to the second show-cause notice was not submitted by the appellant. It is factually incorrect. Order dated 24.01.1998 could not have been passed, as it is specifically mentioned in order dated

27.01.1998 that the writ petitioner superannuated before conclusion of the departmental proceeding, as after superannuation of the writ petitioner the departmental proceeding is being converted into a proceeding under Rule 43(b) of the Rules. Thereafter no notice was given to the appellant, nor further proceedings were conducted. In the above circumstances, we allow this appeal and set aside the order dated 24.01.1998. The Government is free to proceed in the proceeding under Rule 43(b) of the Rules in accordance with law, as provided the order dated 27.01.1998. If Government decides to proceed against writ petitioner, he shall be paid provisional pension from the date of retirement till the proceeding is completed and the arrears of provisional pension as on 31.03.2009shall be given to 6 him within three months from today. Since the writ petitioner retired from service long ago, the proceeding under Rule 43(b) of the Rules should be completed within six months from today and if it is not completed within the aforesaid period, full pension and gratuity shall be given to the writ petitioner calculating the amount of deduction after deducting the provisional pension. (J.B. Koshy, CJ) SC ( Dr. Ravi Ranjan, J.)