IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 7184 of 2005 RAJ NANDAN SINHA, SON OF LATE BHEKH LAL SINGH, RESIDENT OF GILLAGE – BARAHIYA,KOL, POLICE STATION- PUNPUN, DISTRICT- PATNA, PRESENTLY RESIDING AT KAUTILYA NAGAR, PATNA-23 ………………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, BIHAR, PATNA 3. JOINT SECRETARY TO THE GOVERNMENT, PUBLIC HEALTH ENGINEERING DEPARTMENT, BIHAR, PATNA 4. ENGINEER-IN-CHIEF-CUM-SPECIAL SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, BIHAR, PATNA 5. EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING, DESIGN AND PLANNING DIVISION, NO.-6, PUBLIC HEALTH ENGINEERING DEPARTMENT, PATNA 6. DEPUTY SECRETARY TO THE GOVERNMENT, PHED, BIHAR, PATNA ……………….. RESPONDENTS FOR THE PETITIONER: MR. BAXI S.R.P. SINHA, SR. ADVOCATE MR. RAHUL NATH, ADV. FOR THE STATE: SHALINI RANI, AC TO GA-3 ----------- 04. 13.05.2011 Heard learned counsel for the petitioner and the State. The Writ Application had initially been filed by the petitioner for quashing an Order, contained in Memo No. 4711, dated 10.09.2004, issued by the Deputy Secretary to the Government, whereby the Departmental Proceeding, pending against the petitioner, had been converted into the proceeding under Rule 43(b) of Bihar Pension Rules. Further prayer of the petitioner was for quashing a notice, dated 03.05.2005, issued to the petitioner by the 2 Deputy Secretary to the Government under Rule 139 of the Pension Rules as to why Rs. 1,49,678 /- be not deducted from the pensionary benefits payable to the petitioner. Petitioner has retired from the post of Assistant Engineer, PHED, Harnaut on 29th of February, 2004. A Departmental Proceeding was initiated against the petitioner in the year 1990 for alleged financial and administrative irregularities. The enquiry report was submitted, exonerating the petitioner from all the charges. Despite the fact, punishment of censor and recovery of Rs. 1,49,678/- by way of monthly installments from his salary was awarded. This order was challenged by the petitioner in C.W.J.C. No. 9697 of 1996. The punishment order was quashed, giving liberty to the Respondents for holding a fresh enquiry. Fresh enquiry was initiated against the petitioner vide order dated 10.07.1997, contained in Memo No. 607. Petitioner submitted his show-cause and thereafter, the Departmental Proceeding remained pending for several years. On 29.02.2004, the petitioner retired from his service, but his pension and pensionary benefits were not being paid, as such he filed C.W.J.C. No. 6193 of 3 2004 for a direction to make payment of his pension and pensionary benefits. The Writ Application was disposed of directing the Respondents to make payment of 90% of pension and gratuity and also for fixation of his pension. After disposal of the Writ Application, vide Resolution No. 4711, dated 10.09.2004, the Departmental Proceeding was started under section 43(b) of Bihar Pension Rules. The Conducting Officer submitted his enquiry report on 24.02.2005, in which none of the charges framed against the petitioner, was found to be proved. However, a notice dated 03.05.2005 was issued by the Respondents for filing show-cause as to why a sum of Rs. 1,49,678/- be not realized from his post retiral dues under the provisions of Rule 139 of the Bihar Pension Rules. Counsel, appearing for the petitioner, submits that the conversion of pending Departmental Proceeding under rule 43(b) of the Bihar Pension Rules without any sanction of the Government was bad. But I do not find any substance in this submission for the reason that the Departmental Proceeding initiated while the employee is in service can be converted under 4 Pension Rules and for that no further sanction is required, neither question of limitation can be raised. The Respondents thereafter issued second show-cause notice to the petitioner without showing any reason for disagreement with the enquiry report. Finally the punishment order was passed vide order, contained in Memo No. 87, dated 03.03.2006, whereby Rs. 1,49,678/- was directed to be realized from the gratuity of the petitioner. Counsel for the petitioner submits that the punishment was awarded completely in disagreement with the enquiry report, as such it was essential for the Respondent Authorities to disclose the reason for disagreement. Since the reason for disagreement was not disclosed and the punishment was awarded, it is completely against the settle law and the Rules. In the Counter Affidavit, there is no reason shown for not disclosing the cause for disagreement, neither there is any denial that reasons were not shown in the second show-cause notice. Apparent illegality, which has been pointed out by the petitioner’s counsel is that, as per the punishment order, Rs. 1,49,678/- was to be adjusted against the 5 gratuity, but without there being any such order, it was adjusted against his leave encashment amount and only Rupees twelve thousand and odd were adjusted against the gratuity. So far the leave encashment amount is concerned, against that there could not have been any deduction or adjustment. This is an amount which is earned by the employee during his service period and that can not be attached for adjustment by way of punishment. Counsel for the State has not able to answer this point, rather in the Counter Affidavit, there is an admission that Rs. 1,37,640/- was adjusted against the leave encashment amount and balance amount of Rs. 12,030/- only was adjusted against the gratuity. The Respondents could not have adjusted the leave encashment amount earned by the petitioner, as such they are directed to refund the amount, deducted from the leave encashment of the petitioner within 12 weeks from the date of production / communication of the Order. In the Counter Affidavit, it has also been disclosed with regard to the salary payable to the petitioner for the period of suspension, that a 6 decision was taken vide Resolution No. 602, dated 14.11.2006 that petitioner will be paid only subsistence allowance for the period of suspension from 29.08.1989 to 15.05.1991. Nothing, except subsistence allowance may be made to him. This admission in the Counter Affidavit is nothing but an arbitrary act of the Respondents, taken in complete violation of the provisions under Rule 97 of the Bihar Service Code. In the Departmental Proceeding, no such punishment had been awarded to the petitioner. There is nothing to show that any notice was issued to the petitioner under rule 97 of the Bihar Service Code, while he was still in service. Subsequent to petitioner’s retirement, no such order could have passed by the Respondent Authorities, as such the Resolution No. 602, dated 14.11.2006 is quashed. Respondents are directed to make payment of arrears of salary to the petitioner for the period of suspension from 29.08.1989 to 15.05.1991. Considering these facts, the impugned order dated 03.03.2006, contained in Memo No. 87, whereby punishment regarding deduction of Rs. 1,49,678/- was awarded, is quashed for the reason 7 that the Enquiry Officer did not find any charge, framed against the petitioner, to be proved. But in the second show-cause notice, no reason was assigned for disagreement. So far the arrears of salary for the suspension period is concerned, the finding has already been recorded. With the aforesaid observations, this Writ Application is allowed. SKM (Mridula Mishra, J.)