IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.824 of 2009 Nandu Pandey . Versus The State Of Bihar & Ors . ----------- 2. 28.06.2011 Heard learned counsel for the petitioner and the State. The petitioner, a Junior Engineer, was subjected to a departmental proceeding on four charges which were interconnected dated 20.11.1999, with regard to supply and transport of Bitumen. He submitted his reply to the charges. Final order of punishment dated 31.10.2008 has been passed as follows:- (a) A sum of Rs. 1,33,800/-was recoverable from him in lump sum after deducting a sum of Rs. 12,000/-already recovered. (b) There shall be 50% reduction in his pension. Learned counsel for the petitioner submits that the charge memo enclosed a letter dated 11.3.1994 of the Superintending Engineer as material in support of the same. The author of the letter was not examined during the departmental enquiry with opportunity to cross-examine. A copy of the preliminary enquiry report of the Engineer-in-Chief, Rural Development Department and in pursuance of 2 which the decision to initiate the departmental proceeding was taken was also not furnished. The petitioner superannuated at the midnight of 31.10.2008 and therefore no order for reduction of his pension to the extent of 50% could be passed in purported exercise of powers under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the „Rules‟) before 1.11.2008. Counsel for the State raises a preliminary objection that the petitioner has an alternate remedy of a statutory appeal. The Court queried if why the petitioner should not be relegated to the alternative statutory remedy of appeal, where questions presently sought to be raised can also be agitated and be better considered when the original records shall also be available before the Appellate authority. It was contended on behalf of the petitioner that the order was palpably illegal on the face of it for non compliance of procedures in the departmental enquiry by failure to furnish the preliminary enquiry report of the flying squad, non-examination and denial of cross examination of the author of the evidence annexed to the charge and an order passed under Rule 43(b) of the Rules prior to superannuation and therefore the 3 question of relegating the petitioner to the remedy of appeal did not arise. It is not in controversy that the petitioner had furnished his reply to the memo of charges and participated in the disciplinary proceedings. The Court while exercising powers of judicial review over an order of punishment passed in a departmental proceeding is primarily concerned with matters of procedure only. The question of examining the matter on merits by re-appreciation of evidence simply does not arise unless allegations of gross arbitrariness by way of perversity of findings admission of evidence behind the back, reliance on unfurnished evidence etc. are raised. Such is not the case presently. It is not every flaw in a departmental proceeding which requires the interference of the Court. Even if the proceedings are flawed on any procedure, it shall still have to be demonstrated by the delinquent what prejudice has been caused to him. The preliminary report of the flying squad was not mentioned in the memo of charges and did not form a part of the evidence in support of the charge. Nothing has been placed before the Court that the enquiry officer has relied upon this preliminary enquiry report to indict the petitioner by admitting it 4 as evidence behind his back. Nothing has been placed from the reply to the second show cause notice of any such ground taken. The letter annexed to the memo of charge was duly handed over to the petitioner along with the memo of charges. No material has been placed before the Court of any objection raised by the petitioner during the departmental proceeding of his right to cross-examine the author of the letter much less the prejudice caused to him. The Court therefore holds that there is no occasion for it to interfere with the impugned order of punishment in so far as the direction for recovery is concerned. In 2008)9 SCC 31 (Haryana Financial Corporation v. Kailash Chandra Ahuja)it has been held at Paragraph-21 as follows:- “21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non- supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and 5 resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.” The memo of charge was served upon the petitioner on 20.11.1999 while he was still in service. The departmental proceedings having been initiated in his service tenure, shall continue even after his superannuation and no formal orders converting it into one under Rule 43(b) of the Rules are required. But the petitioner is right to the extent that no order under 43(b) of the Rules could have been passed against him till the midnight of 31.10.2008, when he superannuated. Till that date and time the provisions of the Bihar Pension Rules had no applicability. The punishment of withholding 50% of his pension therefore is not sustainable in its present form. That part of the impugned order is therefore quashed but with liberty to the respondents to proceed afresh in accordance with law, if so advised. The writ application is allowed only to the extent indicated. P. Kumar ( Navin Sinha, J.)