IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2222 of 1996 PRANOY KUMAR SINHA, son of Late Damodar Prasad, resident of Alkapuri, P.O. Anisabad, P.S. Gardanibagh, District Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Secondary, Primary and Adult Education Department, Bihar, Vikash Bhawan, Patna 3. The Director (Administration) cum Deputy Secretary, Secondary, Primary and Adult Education Department, Bihar, Vikash Bhawan, Patna … Respondents. For the Petitioner: Mr. Ajay Kumar Ambastha,Adv. & Mrs. Sudha Kumari, Adv. For the respondents: Mr. Sanjay Kumar II, G.P.15 & Mr.Sunil Kr.Ravi, A.C. to G.P.15 ----------- 6. 12.1.2010 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This is an application by the abovenamed petitioner for the issuance of an appropriate/order/direction to quash the order contained in Memo No. 666 dated 13.11.1992 of Director (Administration) cum Deputy Secretary, Bihar, Patna (hereinafter referred as Director) whereby and whereunder (i) the petitioner has been penalized with the decision that he would not be paid anything except the subsistence allowance for the period of suspension and that (ii) 2 10% shall be deducted from petitioner’s pension.” Counsel for the petitioner with respect to the aforementioned relief would submit that once the Enquiry Officer had not categorically held the petitioner guilty for the charges and the resultant show cause reply filed by the petitioner to the second show cause notice also having been not considered in the impugned order of punishment dated 13.11.1992 such order of punishment withholding 10% of pension as also salary beyond the subsistence allowance for the period of suspension (25.8.1983 to 27.8.1985) cannot be sustained. Counsel for the State, on the other hand, would submit that the Enquiry Officer in his enquiry report had never exonerated the petitioner and therefore, when he had also recommended for passing an order of Censure against the petitioner it should be deemed that the Enquiry Officer had found all the charges framed against the petitioner to be proved. Counsel, therefore, defends the impugned order of punishment. In the opinion of this Court, there 3 cannot be any inferential attitude in a disciplinary proceeding. After the charges were framed against the petitioner which on the face of it were quite serious charges against any Government servant holding Class II post of Bihar Education Service, the authorities were required to conduct a departmental proceeding and the record a separate finding with regard to each of the charges. It may be found that the petitioner was subjected to four separate charges but even when the petitioner had submitted his exhaustive show cause reply on 19.6.1986 and had furnished explanation of each of the four charges the Enquiry Officer in his enquiry report had only made a tentative finding that it appeared to him that changes in the marks by way of revision was made with some specified purpose. The Enquiry Officer in fact had also partly accepted the explanation of the petitioner and had in this context recorded his inability to give any specific finding as the answer books were not available for perusal of the Enquiry Officer. The following finding of the Enquiry Officer, therefore, 4 ^^vr,o miyC/k rF;ksa ds vk/kkj ij v|ksgLrk{kjh dk fu"d"kZ gS fd mRrj iqfLrdkvksa dh tkap esa Jh iz.ko dqekj flag dk vkpj.k ,d mRrjnk;h inkf/kdkjh tSl ugha j[kkA ;fn ijh{kk Hkou esa vk/kfjr dnkpkj dks ysdj mUgsa vadu esa dfBukbZ ;k nqfo/kk gqbZ rks iwoZ esa mUgsa lapkyud dk ekxZ n'kZu izkIr dj ysuk pkfg, Fkk vkSj vPNh rjg ls fopkj dj vadu djuk pkfg, Fkk ftlls fd okn esa bl rjg vadksa dks ijk;s c<+kos dk volj u vkrkA ,d cM+h ftEesnkjh dks cgqr gYds <ax ls ysus ds fy;s budk fuUnu djrs gq, dk;Zokgh lekIr dh tk ldrh gSA** is only an advisory role played by the Enquiry Officer in stead of behaving like a final fact finding authority recording his conclusive findings in respect of each of the four charges. It was this enquiry report which was sent to the petitioner for his explanations and when the petitioner had taken certain plea in his reply dated 25.5.1991 the same was also not dealt in the impugned order of punishment and the authorities had proceeded to pass the order of punishment in a most mechanical and perfunctory manner as would be evident from the relevant portion of the impugned order, which reads as follows : - ^^Jh iz.ko dqekj flaUgk] lsokfuo`r lgk;d] {ks=h; mi f'k{kk funs'kd] mRrj NksVkukxiqj ize.My] gtkjhckx dks ftuds fo:n~/k lgk;d {ks=h; mi f'k{kk funs'kd] iVuk ize.My iVuk dh dk;kZof/k ls lacaf/kr vkjksiksa ds fy, foHkkxh; ladYi la[;k 352 fnukad 15-6-84 ds }kjk foHkkxh; dk;Zokgh izkjaHk dh x;h Fkh vksj vuqoRrhZ foHkkxh; ladYi la[;k 815 fnukad 23-10-86 ds }kjk mDr foHkkxh; dk;Zokgh ds fy, tkap lapkyu inkf/kdkjh dk ifjorZu fd;k x;k Fkk] tkap inkf/kdkjh ls izkIr izfrosnu ds vkyksd esa leh{kksijkUr muds fo:n~/k vkWy bf.M;k esfjV LDkWyjf'ki dh izkjafHkd ijh{kk 1983&84 esa mRrj iqfLrdkvksa ds izkIrkadksa esa gsj&Qsj djus dk vkjksi izekf.kr fd;s tkus dh fLFkfr 5 esa jkT; ljdkj us muds fuyacukof/k esa vuqekU; thou fuokZg HkRrs ds vfrfjDr dqN Hkh ns; ugha gksus rFkk muds isa'ku ls 10% Anl izfr'krA dh dVkSrh djus dk fu.kZ; fy;k Fkk ftldh lwpuk Jh flUgk dks nsrs gq, fcgkj isa'ku fu;ekoyh ds fu;e 139 ds izko/kku ds vkyksd esa muls Li"Vhdj.k dh ekax dh x;h Fkh vkSj muls izkIr Li"Vhdj.k ds leh{kksijkUr mudk Li"Vhdj.k vlarks"ktud ik;s tkus dh fLFkfr esa jkT; ljdkj us iwoZ esa fy;s x;s mDr fu.kZ; dh vafre :i ls dk;kZfUor djus dk fu.kZ; fy;k gSA vr% jkT; ljdkj ds mDr fu.kZ; ds vkyksd esa Jh flUgk dks mDr izekf.kr vkjksi ds fy, fuEukafdr lg nsrs gq, muds fo:n~/k py jgh mDr foHkkxh; dk;Zokgh dks lekIr fd;k tkrk gSA 1- Jh flUgk dks fuyacukof/k esa vuqekU; thou fuokZg HkRrs ds vfrfjDr dqN Hkh ns; ugha gksxkA 2- Jh flUgk ds isa'ku ls 10% Anl izfr'krA dh dVkSrh dh tk;sxhA** From the reading of the aforesaid order it would become clear that the entire consideration of the respondent was confined to one word i.e. ^^vlarks"ktud** which cannot be countenanced in law being cryptic. The submission of the learned counsel for the State that the Enquiry Officer had made certain recommendation for inflicting a minor punishment in form of Censure and that should be taken to be the finding for holding all the charges to be proved does not appeal to this Court. The Enquiry Officer was required to record his findings in the light of the defence given by the petitioner in his written statement of defence dated 19.6.1986 (Annexure 6). 6 That having been not done, neither the Enquiry Officer had proceeded in the departmental proceeding in a fair and objective manner nor the disciplinary authority has done anything better, inasmuch as he too has passed the order in a most mechanical manner. There is at least nothing to indicate as to which part of the charge against the petitioner were proved on the basis of which the misconduct alleged against the petitioner could have been held to be a gross misconduct. It is well settled that the power under Rule 43(b) of Bihar Pension Rules in respect of pending proceeding initiated prior to retirement of the Government servant can be continued but then the order of punishment in terms of Rule 43 of the Bihar Pension Rules can be only with regard to a gross misconduct or a pecuniary loss to the Government. This obviously is not the case of pecuniary loss and therefore, if nothing has been said either in the enquiry report or in the impugned order that the misconduct alleged was gross in nature, this Court must hold that the order of punishment 7 also does not meet the requirement of Rule 43 of the Bihar Pension Rules. Considering all these aspects this Court must hold that the impugned order cannot be sustained but then this Court taking into account that this writ application with regard to an order of punishment passed in the year 1992 was filed in the year 1996 and the said writ application remained pending for another 14 years before its being disposed of today, it would give the respondents a firm time period of four months from the date of receipt/production of a copy of this order within which they must pass a fresh order after considering the reply of the petitioner dated 19.6.1986 and the subsequent communication dated 22.1.1993 as contained in Annexure 12. The Respondent Director (Administration) of Human Resources Department, therefore, is directed to proceed from the stage of submission of the enquiry report and pass a final order after obtaining approval of the competent authority as to whether in the given set of facts and circumstances the misconduct 8 alleged against the petitioner was a gross misconduct and as to whether there were any evidence on the basis the petitioner could be subjected to punishing for withholding of 10% of his pension on permanent basis. In the result, this application is allowed. The impugned order, as contained in Annexure 1, is quashed and the matter is remitted back to the respondents to pass a fresh order as directed above. The petitioner however will be entitled to any and every financial benefit only when he would be exonerated in the fresh order on remand to be passed by the authority in terms of aforesaid observation and direction. (Mihir Kumar Jha,J.) Surendra/