IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5387 of 2010 Bramhanand Rai, Son of Late Jagarnath Rai, Resident of Rajshila Apartment, B/3, Bailey Road, Bind Toli, Sheikhpura, Patna-14, P.S. Shastrinagar, Dist- Patna. … Petitioner Versus 1. The State Of Bihar. 2. The Secretary of Road Construction Department, Govt. of Bihar, Patna. 3. The Joint Secretary of the Government, Road Construction Department, Govt. of Bihar, Patna. 4. The Additional Secretary of the Government, Road Construction Department, Government of Bihar, Patna. 5. The Deputy Secretary of Government, Road Construction Department, Government of Bihar, Patna. … Respondents ----------- 4 08.09.2011 Heard learned counsel for the petitioner and the State. 2. The petitioner who has superannuated on 31.05.2009 from the post of Superintending Engineer is aggrieved by the order dated 09.03.2010 converting the pending departmental proceedings initiated against him on 01.12.2005 to one under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Pension Rules). 3. Learned counsel for the petitioner submits that charges were framed and served on 01.12.2005. The petitioner replied to the same on 15.12.2005. The respondents had more than enough time to complete the proceedings before his superannuation. When nothing further transpired he reasonably legitimately believed that the matter had been dropped. This belief was further confirmed when the respondents promoted him as Superintending Engineer on 30.06.2008 from that of an Executive Engineer. They also released his provisional pension and gratuity. It is only when the petitioner sought his full retiral dues that the present proceeding have been sought to be resurrected. The allegations in the charge dated 01.12.2005 2 pertain only to non compliance with procedures and there are no allegations of having caused any financial loss to the Government. Referring to paragraph-7 of the counter affidavit it is submitted that the financial loss caused due to the alleged procedural faults is attributed to an Income Tax Act penalty of Rs. 5,300/- a statutorily liability. 4. Counsel for the State submits that if the departmental proceedings were initiated while the petitioner was still in service, it automatically converts to one under Rule 43(b) of the Pension Rules and no formal orders to that effect are even required. If the proceedings remained inconclusive before superannuation it shall be continued and taken to its logical conclusion. The Court may direct to expedite the departmental proceedings and conclude at an early date. 5. A memo of charge was served upon the petitioner on 01.12.2005. He replied to the same on 15.12.2005. The respondents had more than adequate time before his superannuation on 31.05.2009 to conclude the departmental proceedings. The counter affidavit maintains complete studied silence on this aspect. When the petitioner was promoted on 30.06.2008 as Superintending Engineer, undoubtedly his service records must have been properly examined. Again the counter affidavit chooses to maintain complete studied silence on this aspect also. Therefore, there is no explanation why the respondents did not complete the departmental proceedings in time while he was in service. It is for the respondents to answer how they promoted him as Superintending Engineer. Did it not 3 tantamount to their acceptance of his defense to the charges opining that he need not be proceeded with. 6. The allegations in the memo of charge dated 01.12.2005 pertain more to matters of procedure. There are no allegations of having caused financial loss to the State Government on account of lapses of procedure by him. Imposition of statutorily liability under the Income Tax Act by no stretch of logic or reason can be classified as a financial loss. The Court finds it difficult to appreciate the stand of the respondents that payment of statutorily liability under the Income Tax Act was a financial loss. It betrays complete non application of mind displaying a wanton attitude of harassment. 7. If the respondents had proceeded in time on the departmental proceedings while he was in service and the lapses for delay were attributable to the petitioner different considerations may have arisen to test the validity of the same. There is no such allegation in the counter affidavit. 8. A person who has superannuated has limited resources at his disposal and has only his pension to survive. Even 5% reduction in pension has been considered a serious matter by the Supreme Court in (2005) 3 SCC 501 ( RAM DAYAL RAI Vrs. JHARKHAND STATE ELECTRICITY BOARD AND OTHERS ) for a person in the evening by his life who has no other source of income. 9. A proceeding under Section 43(b) of the Pension Rules is an extremely serious matter both from the point of view of the State Government and superannuated person like the 4 petitioner. 9. This Court in C.W.J.C. No. 11 of 2010 has adequately discussed this aspect of the matter that while one person who may have caused loss to the Government should not be allowed to go scot free, simultaneously before resorting to the strong power of Rule 43(b) of the Pension Rules and in-house assessment is first required to be carried out including the likelihood of success before commencing the proceeding, both from the aspect of saving the finances of the State in defending what may be an un-defendable litigation imposing financial burden on the State as also a retired person. 10. The Court is not persuaded on the facts of the present case to remand matters. The fault in non completion of the proceedings lies entirely with the respondents. It is for them to first do some self introspection by fixation of internal responsibility, take action and then to have come before this Court in the present proceeding to contest it. 10. The order dated 09.03.2010 is set aside. The petitioner is held entitle to all consequential befits in accordance with law. 11. The writ application stands allowed. Md. Ibrarul ( Navin Sinha, J.)