Civil Writ Jurisdiction Case No. 10159 of 2003 --------- In the matter of an application under Article 226 of the Constitution of India BASANT RAM ………. Petitioner Versus THE STATE OF BIHAR & ORS. ……… Respondents For the Petitioner : Mr. R.N. Mukhopadhyay, Advocate For the Respondents: Mr. R.K. Choubey, G.P.7 For the Accountant General : Mr. Madhuresh Prasad, Advocate ……….. O R D E R THE HON’BLE MR. JUSTICE JYOTI SARAN …………. 12/ Jyoti Saran, J. Heard Mr. R.N. Mukhoupadhyay, Advocate for the petitioner and Mr. R.K. Choubey, G.P. No. 7 for the State. The petitioner while assailing the resolution dated 10.5.2003 (Annexure-1) issued under the signature of the Special Officer-cum-Deputy Secretary, Road Construction Department converting the departmental proceedings initiated against the petitioner into a proceeding under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules), has sought for a direction for payment of his full pension, commutation of pension, gratuity and other dues to which he is legally entitled together with interest. The facts briefly stated are that the petitioner was appointed as Engineer Assistant on 11.9.1972 and was promoted to the post of Assistant Engineer on 29.8.1974. The petitioner was thereafter promoted to the post of Executive Engineer on 18.2.1983 and to the post of Superintending Engineer with effect from 3.8.1989. 2 It is stated that upto 14.1.1993 the petitioner functioned as Superintending Engineer in Road Circle, Hazaribagh and thereafter from 15.1.1993 until June, 1995 the petitioner was posted as Superintending Engineer in Road Circle, Ranchi. On 1.7.1995 the petitioner was posted as Superintending Engineer, Rural Engineering Organization with additional charge of the post of Superintending Engineer Rural Engineering Organization, Gaya with effect from 3.1.1997. The petitioner held the additional charge of Superintending Engineer in the Rural Engineering Organization, Gaya with effect from 3.1.1997 to 10.4.1997. It would be relevant to mention here that until the taking over of charge by the petitioner of the post of Superintending Engineer, Rural Engineering Organization, Gaya, the said post was being held by one Damodar Ram. A charge sheet bearing Memo. No. 8151dated 17.11.2000 was served upon the petitioner placed at Annexure- 4/1 of the supplementary petition imputing the following charges:- (a) Vide Memo No. 2438 dated 24.12.1996 the petitioner was directed to submit the report regarding some tender, the admitted allotment and the withdrawal done by him but he failed to do so. It was also stated that vide Memo No. 2478 dated 31.12.1996 reminder was issued and yet he did not respond to the same. A second reminder was issued vide Memo No. 13 dated 2.1.1997. (b) On 9.1.1997 the petitioner contacted the Chief Engineer-I through letter nos. 25 & 26 dated 8.1.1997 but he 3 did not submit a detailed enquiry report which indicated towards violation of the orders of the Chief Engineer. (c) Vide Telex Massage No. 132-21, January, the petitioner was directed to stop all the road related works of giving intimation to the Chief Engineer-I, vide letter no. 64 dated 5.2.1997. It shows that the petitioner did not take effective steps for stopping the work and which was violation of the orders of the superior officers. (d) Vide letter bearing Memo No. 122 dated 21.1.1997 the petitioner was required to submit an enquiry report with regard to the financial irregularities in the matter of Road repairs including withdrawal of Rs. 15 lacs by self cheque without taking departmental permission with reminder vide Memo No. 1926 dated 25.4.1997 but the order was not carried out. Following the issuance of charge memo the Enquiry Officer was appointed but he retired without holding any enquiry. Thereafter the enquiry was held on 24.7.2001 which was the first date of enquiry and on the same date itself the enquiry was completed and the matter was placed for decision on 7.8.2001 and which fact is manifest from Annexure-C to the counter affidavit filed on behalf of respondent nos. 1 to 3. Even before the decision could be taken the petitioner retired from service with effect from 31.7.2002. It is in this background that the order as contained in Annexure-1 came to be issued bearing 4 Memo No. 3592 dated 10.5.2003 converting the proceedings into a proceeding under Section 43(b) of the Rules. An enquiry report enclosed to letter dated 30.1.2002 of the Commissioner, Magadh Division, Gaya was said to be submitted which was placed on record under the orders of this Court dated 20.1.2009 passed in the present proceedings (Annexure-A to third supplementary counter affidavit). The enquiry report merely contains the charges and the explanations submitted by the delinquent employee i.e. the petitioner and concludes with a finding that upon consideration of the matter the charges have been found to be proved. The petitioner contends that even the said enquiry report was never supplied to him. The enquiry report was followed by a second show cause placed at Annexure- F of the supplementary counter affidavit filed on behalf of the respondent no. 1 to 3 requiring the petitioner to show cause as to why his pension to the extent of 25 per cent be not deducted for a period of five years for the charges which stood proved in the enquiry. The petitioner responded to the second show cause by filing a reply dated 4.3.2004. The petitioner in his reply to his second show cause brought to the notice of the disciplinary authority that he was holding the additional charge of the post of Superintending Engineer, Gaya only with effect from 3.1.1997 to 10.4.1997. It was stated that since the letters mentioned in the charge memo were addressed to his predecessor in office, hence there was no occasion for him to reply to the said letters. It was mentioned that nonetheless soon after joining on 3.1.1997 he 5 forwarded two letters no. 25 and 26 dated 8.1.1997 responding to the directions issued in the aforementioned letters which remained unattended by his predecessor in office. He mentioned that subsequently he also submitted a report vide letter no. 64 dated 5.2.1997 in response to the letter dated 21.1.1997 of the Chief Engineer and that he relinquished his additional charge as Superintendent Engineer, Gaya with effect from 10.4.1997. He also mentioned that he was not served with any copy of hearing in the departmental proceedings and that he has simply been provided with the second show cause notice which was under reply. The petitioner in paragraph 14 of his response pointed out the infirmities in the proceedings clarifying that neither the charges were relatable to him, nor the allegations were directed against him or the pecuniary loss could be attributable to him. It was further pointed out the subject matter of enquiry was not within the domain of an enquiry as envisaged under 43(b) of the Rules. It was also clarified that the enquiry was ex-parte and in violation of the Rules and against the principles of natural justice. The disciplinary authority by notification bearing memo no. 209 dated 7.1.2006 i.e. during the pendency of the present proceedings passed an order of penalty of stoppage of pension at the rate of 25 per cent for a period of five years. Copy of the said order was brought on record vide Annexure-10 to an amendment application seeking permission of the Court for assailing the same and which has since been allowed by this Court vide order dated 6 20.1.2009. Learned counsel appearing on behalf of the petitioner made following submissions for consideration by this Court: (a) The charges set out in Annexure 4/1 were not within the purview of Rule 43(B) of the Bihar Pension Rules. (b) Neither the charge sheet reflected any case of grave misconduct nor of causing any pecuniary loss by this petitioner. (c) The enquiry report as well as the punishment order are non-speaking and have been passed without application of mind. (d) No power lay with the disciplinary authority to delegate the duty of Enquiry Officer on any other person other than the Enquiry Officer appointed in the matter. (E) Except the charge of non-submission of a detailed report by this petitioner none of the charge was relatable of the period during which the petitioner held additional charge of the post of Superintending Engineer, Gaya i.e. 3.1.1997 to 10.4.1997. Learned counsel for the petitioner thus submits that the order impugned is not only perverse and in clear violation of principles of natural justice but is also a non-speaking order having been passed with complete non-application of mind and de hors the provisions underlined in Rule 43(b) of the Rules. 7 Learned counsel appearing on behalf of the State supported the impugned order and submits that the same has been passed upon consideration of the facts and materials on record. Learned counsel submits that as the petitioner was found wanting in discharge of his obligation attached to the post of Superintending Engineer, Gaya, and had disobeyed the directions of his superiors, hence action was warranted against him and which has finally culminated in the impugned order of stoppage of pension for five years at the rate of 25 per cent and which is reasonable and in accordance with law and requires no interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. I have heard learned counsel appearing on behalf of the petitioner and the State and considered the materials on record. The perfunctory manner in which the proceedings have been conducted, is manifest from the findings of the Enquiry Officer (Annexure-A) and the impugned punishment order dated 7.1.2006 (Annexure-10). The opinion of the Enquiry Officer is without reasons and without application of mind. The disciplinary authority, on the other hand, without appreciation of the issues raised by this petitioner in his reply to the second show cause has in a very casual manner delegated the role of the Enquiry Officer to one Pramod Kumar Vidyarthi, Chief Engineer, Advance Planning, Supply Division, Bihar, Patna to re-hear the petitioner. It is obvious that the petitioner did not choose to appear before him and submitted that the matter is pending before this Court. Even then the disciplinary 8 authority without having regard to the response made by the petitioner as regards the merits of the matter, has simply proceeded to impose the penalty in a mechanical manner and without assigning any reasons for rejecting the explanation given by the petitioner. The only issue which requires determination is whether the scope of enquiry initiated under the memo of charges placed at Annexure4/1 of the proceedings and the continuation thereof by the respondents even after the retirement of the petitioner was in accordance with law and whether it fell within the purview of Rule 43(b) of the rules. Another aspect which requires consideration is whether the enquiry has been done in a fair and impartial manner after observance of the rules governing such enquiries and whether the principle of natural justice has been observed. It is an admitted position that the subject matter of the proceeding does not relate to this petitioner rather it is in relation to performance of duty by his predecessor, namely, Damodar Ram. The said fact is evident from the charge memo itself in which the said Damodar Ram was the predecessor of this petitioner on the post of Superintending Engineer, Gaya and was directed by the Chief Engineer vide Memo Nos. 2438 dated 24.12.1996, 2478 dated 31.12.1996 and Memo No. 13 dated 2.1.1997 to submit his report regarding some tender works executed by him and the amount withdrawn in relation thereto. It is a different matter that the petitioner succeeded the said Damodar Ram on the said post with 9 effect from 3.1.1997 and as the letters remained unanswered, hence he attended to the same and furnished information that were available with him vide letter nos. 25 and 26 both dated 8.1.1997. It is again another matter that the reports were not to the satisfaction of the Chief Engineer but it in no manner indicted or involved the petitioner with the alleged charges. Non-submission of a report to the satisfaction of the Superior may be a case of personal preference, likes and dislikes but it certainly cannot be linked to efficient or inefficient performance of duty and in no manner be a case of grave misconduct or indiscipline or the like. In fact, in my opinion, the charges which were set out vide Annexure-4/1 were such that the proceedings itself ought not to have continued after the retirement of the petitioner and should have been closed. Perhaps it is for this reason that this Court in its order dated 20.9.2009 had framed an issue as to whether the ingredients necessary for continuation of a proceeding under Rule 43(b) of the Rules was present in the case of the petitioner. The State counsel had taken time for responding to the same. In response to the said issue, posed by this Court a second supplementary counter affidavit was filed by respondents 1 to 3 on 18.2.2005 but the respondents have utterly failed to justify their actions in continuing the proceedings in purported exercise of power under Rule 43(b). In fact the issue has remained unanswered. This Court is not going to detain itself any further in holding that the continuation of the proceedings after retirement of 10 this petitioner was de hors the provisions of Rule 43(b) of the Rules inasmuch as none of the ingredients present in the said Rule for continuation of any proceedings after retirement of a delinquent is present in the case of the petitioner. Notwithstanding the fact that the enquiry was conducted in most perfunctory manner, the enquiry report is even more perfunctory and the impugned order is even a bigger casualty being non-speaking, bereft of reasons and having been passed without application of mind. Despite serious attempt been made by the learned counsel appearing on behalf of the State to respond to the issues raised by the petitioner during the course of argument but with the materials in his armoury, he could not succeed in his attempt. Law is well settled that a proceeding under Rule 43(b) can only be initiated in cases of grave misconduct and in cases where the action of the delinquent during his service tenure has been such that has resulted in causing a pecuniary loss to the Government. I have already held that submission of a report by this petitioner in relation to a service period of his predecessor Damodar Ram not found to be as per the estimation and/or liking of the Chief Engineer, in no manner can be treated to be a case of grave misconduct warranting continuation of the proceedings. It is indisputed that the petitioner has not been charged with causing any financial irregularities. Thus none of the ingredients for continuation of proceeding under Rule 43(b) of the Rules stands satisfied in the case of the petitioner. I thus deem it fit to hold that the continuation of proceedings was 11 without sanction of law and the order passed in consequence thereof as contained in Annexure-10 is also unsustainable, perverse and fit to be set aside. In the result, this writ petition is allowed. The entire proceedings initiated pursuant to the charge memo bearing no. 8151 dated 17.11.2000 (Annexure-4/1) together with the resolution dated 10.5.2003 (Annexure-1) and the impugned order of punishment contained in Memo. No. 209 dated 7.1.2006 (Annexure-10) are quashed and set side. As a consequence any amount withheld pursuant to the impugned order dated 7.1.2006 as contained in Annexure-10 should be refunded to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed with the aforesaid directions. Patna High Court Dated 21st December, 2009 S.Sb/- / N.A.F.R. (Jyoti Saran, J.)