JUDGMENT
1. This appeal under Clause 10 of the Letters-Patent of the High Court of Judicature at Patna has been preferred with respect to the order dated 24.11.99, passed by a learned Single Judge of this Court in [CASE NUMBER] [PRECEDENT], whereby it has been held that the proceeding against Respondent No. 1 (the writ petitioner), under [SECTION] of the [ACT] (hereinafter referred to as the [ACT]) is bad in law in view of the provisions contained in [SECTION] of the [ACT], which is to the effect that the impugned action is with respect to dereliction on the part of Respondent No. 1 said to have taken place four years prior to the institution of the proceeding. The State of Bihar has preferred the instant appeal.
2. A brief resume of facts will suffice. Respondent No. 1 herein was posted as an Assistant Engineer in the Western Kosi Embankment Team, Jamalpur, Darbhanga, in 1987-88. The Western Kosi Embankment got breached at two places during that period and, therefore, steps had to be taken to plug the breaches. Respondent No. 1 was called upon to make an estimate and submit the same for approval. After the work was completed and the bills had been paid, the concerned functionaries of the State Government found fault with the mode and manner in which the estimate was prepared and the bills had been passed. It was suspected that the estimate had been overblown which resulted in loss of revenue to the State of Bihar. In that view of the matter, the State Government had issued show-cause notice dated 12.5.81 (Annexure 1 to the writ petition), calling upon Respondent No. 1 to show cause with respect to the allegations against Respondent No. 1. It appears from the totality of circumstances that this show-cause notice was in terms of [SECTION] of the [ACT] (hereinafter referred to as '[ACT]'). Cause was shown by Respondent No. 1 by his communication dated 9.6.89 (Annexure 2 to the writ petition). The authorities thereafter referred the matter to the flying squad of the Engineering Department for verification which took some time. Before a final decision could be taken on the departmental proceeding so initiated in terms of [SECTION] of the [ACT], Respondent No. 1 superannuated from the service of the Bihar Government with effect from 30.6.97, The State Government, therefore, issued order dated 6.1.99 (Annexure 6 to the writ petition), converting the departmental proceedings to one under [SECTION] of the [ACT], on the heels of which the impugned order dated 12.1.99 (Annexure 8 to the writ petition) was issued whereby, in substance, the monthly pension of the petitioner has been reduced by 25%.
3. Aggrieved by this order dated 12.1.99 (Annexure 8 to the writ petition), the petitioner preferred the aforesaid [CASE NUMBER], assailing the validity of the same on the ground that the alleged dereliction had taken place way back in 1987-88, the petitioner superannuated with effect from 30.6.97 the aforesaid order dated 6.1.99 (Annexure 6) is hit by the provisions of Clause (a)(ii) of the proviso to [SECTION] of the [ACT]. The contention found favour with the learned Single Judge who has held in the impugned order that the proceeding under [SECTION], not having been initiated within four years of the institution of the proceeding under the [ACT], is bad in law. He has, therefore, set aside the aforesaid order dated 12.1.99 (Annexure 8), and passed consequential orders.
4. Mr. [ENTITY], learned GP IX, appearing for the appellant-State of Bihar, submits that the Hon'ble Single Judge has erred in taking the view that the proceeding in question is hit by Clause (a)(ii) of the proviso to [SECTION] of the [ACT]. Departmental proceedings had already been initiated in terms of [SECTION] of the [ACT] by communication dated 12.5.1989 (Annexure 1 to the writ petition). In his submission, once it is found that the departmental proceedings had already been initiated while the petitioner was still in service, the aforesaid provision of the Pension Rule is not in the facts and circumstances of the present case attracted. He relies on a Full Bench Judgment of this Court reported in [PRECEDENT], He also relies on two judgments of this Court reported in [PRECEDENT] [PRECEDENT] which, in his submission, are to the same effect as the Full Bench.
4.1. Learned Counsel for Respondent No. 1 (the writ petitioner) submits in opposition that the explanation to [SECTION] defines departmental proceeding which is to the effect that the same shall be deemed to have been instituted when the charges framed against the petitioner are issued to him, or if the Government servant is placed under suspension from the earlier date. In his submission, the aforesaid communication dated 12.5.89 (Annexure 1) is in the nature of show-cause notice, and was not a charge-sheet, nor was he ever placed under suspension.
5. Having considered the rival submission, we are of the view that the contention advanced on behalf of the appellants must prevail. Learned Government. Pleader has rightly relied on the aforesaid Full Bench judgment which lays down to the effect that in a case where a disciplinary proceeding had already been started while the employee was in service even, if the person concerned attains the age of superannuation, the inquiry may be continued under [SECTION] of the [ACT], for the limited purpose of taking such action as provided under the said Rules even after such superannuation and for that purpose no specific or express order of the Government is necessary. It a appears that the judgment of the Full Bench was not brought to the notice of the Hon'ble Single Judge. In the conspectus of the entire proceedings, we are of the view that the aforesaid show-cause notice dated 12.5.89 (Annexure 1) was initiated in terms of [SECTION] which was a proceeding for minor penalty, which has had to be disposed of on the basis of representation. No specific charges are required to be framed and proved in a departmental proceedings with respect to minor penalty. In that view of the matter, the ratio of the aforesaid Full Bench judgment applies on all fronts to the present case. The departmental proceedings having been initiated while Respondent No. 1 was still in service, the same gets converted into one under [SECTION] of the [ACT] by automatic operation of law, and a formal order of conversion does not in any way adversely affect the validity of the latter. However, as a measure of abundant precaution, the State Government had issued the order dated 6.1.99 (Annexure 6). converting the departmental proceeding into one under [SECTION] of the [ACT]. We have no manner of doubt that in view of the legal position that such a formal order was not required to be issued but in fact was issued, does not render conversion of the proceeding bad in law. In that view of the matter, we disagree with the conclusion arrived at by the learned Single Judge that the proceeding under [SECTION] of the [ACT] was bad in law, and conclude that the same was valid.
6. We would also like to notice the judgment of the Supreme Court relied on by the learned Counsel for Respondent No. 1, State of Bihar v. [ENTITY], (Supreme Court Section). It is manifest from a plain reading of the judgment that their Lordships were considering the validity of proceedings under the [ACT] initiated after superannuation of the employee concerned. The judgment is an authority on the scope and ambit of [SECTION] and [SECTION] of the [ACT], and with respect to proceedings started thereunder after superannuation of the employee. On the contrary, we have already held hereinabove that the disciplinary proceeding against Respondent No. 1 in the present case had been initiated while he was in service. In that view of the matter, the aforesaid judgment of the Supreme Court in the case of [ENTITY] (supra) does not apply to the facts and circumstances of the present case, and the issue is entirely covered by the aforesaid Full Bench judgment of this Court in the case of [PRECEDENT].
7. Learned Counsel for Respondent No. 1 has also relied on [SECTION] of the [ACT] which is to the effect that the Bihar Public Service Commission shall be consulted before the final order is passed. We are unable to accede to this contention for two reasons. Firstly, this proviso applies in a situation where departmental proceedings have been instituted after the employee concerned has superannuated from the Government service. On the contrary, the position is altogether different in the present case, and we have already held hereinabove that the departmental proceedings against Respondent No. 1 had been initiated against him while he was in service. Therefore, [SECTION] of the [ACT] is not attracted in the present case. Secondly, [SECTION] of the [ACT] lays down that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all the matters mentioned therein. This provision fell for consideration of the Supreme Court in the judgment [PRECEDENT] and [PRECEDENT] wherein it has been held that the provisions of [SECTION] of the [ACT] is directory in nature. The said judgment in the [PRECEDENT] has been handed down by the [ACT] Bench. [SECTION] of the [ACT] has lost must of its importance since the aforesaid decisions of the Supreme Court that while [SECTION] confers a right upon the Government servant, [SECTION] does not confer any such right. The consultation prescribed by the sub-Clause is only to afford proper assistance to the Government in assessing the guilt or otherwise of the delinquent officer as well as the suitability of the penalty to be imposed. [SECTION] is not controlled by [SECTION]. The omission of, or irregularity in, such consultation, does not give rise to any cause of action, the aggrieved officer has no remedy in a Court of law, nor any relief under the extra-ordinary powers conferred by [SECTION] and [SECTION] of the [ACT] can be granted. The Commission's function is purely advisory. The provision in question is quite similar to the provisions of [SECTION] of the [ACT]. In that view of the matter, we hold that failure on the part of the State Government to consult the Bihar Public Service Commission before passing the final order does not render the order in question illegal, apart from out earlier conclusion that the provision in question is not attracted to the facts and circumstances of the present case.
8. In view of .our conclusion hereinabove to the effect that conversion of the proceeding under [SECTION] of the [ACT] was valid in law, we make it clear that it will be open to Respondent No. 1 (the writ petitioner) to prefer statutory appeal under [SECTION] of the [ACT]. The judgment of a learned Single Judge of this Court reported in [PRECEDENT]., has been brought to our notice according to which, the appeal in such a case lies before the Governor of Bihar which has to be disposed of on merits, and the question of limitation, if any, shall not come in his way.
9. In the result, this appeal is allowed. The impugned order, dated 24.11.99, passed in [CASE NUMBER] [PRECEDENT], is hereby set aside.