IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11391 of 2010 1. Bachu Prasad Rajak S/O Late Dahaur Prasad Rajak R/O Chak Musallahpur, P.O.Mahendru, P.S.Kadam Kuan, Distt-Patna Versus 1. The State Of Bihar 2. The Commissioner -Cum-Principal Secretary Commercial Taxes Govt. Of Bihar, New Secretariat, Patna 3. The Accountant General Birchand Patel Path, Bihar, Patna 4. The Accountant General Jharkhand, Hinoo, Ranchi ---------------------------------- For the Petitioner : Ms. Ratna Das,Advocate with Mr. Vikash Jha For the State : Mr. Avinash Kumar, AC to SC XI For the Accountant General: L. P. K. Rajgrihar, Standing Counsel 4. 21.11.2011 Heard learned Counsel for the petitioner and the State. On the penultimate day of superannuation the petitioner was served with a memo of three charges duly replied by him. An enquiry report came to be submitted on 9.9.1996 leading to an order of punishment dated 12.9.1997 for „censure‟, stoppage of two increments with cumulative effect and that nothing beyond subsistence allowance was payable for the period of suspension which was otherwise tobe counted for the purpose of service. The appeal preferred by the petitioner was rejected on 8.10.1997. In CWJC No. 4560 of 1999 this Court noticed the procedural infirmity in conclusion of the departmental proceeding and the final order of punishment having been passed without furnishing the enquiry report. The punishment was quashed and the matter remanded for fresh consideration in accordance with law. The respondents then served second show cause notice along with a copy of the enquiry report whereafter the fresh order of punishment was passed on 8.10.2004 reiterating the earlier punishment. In CWJC No. 5382 of 2005 this Court held that the punishment was unsustainable in view of his 2 superannuated status. It was conceded on behalf of the State that the order was ex facie illegal. It was set aside and the matter remanded for fresh order of punishment. On 16.4.2010 the respondents passed an order withholding the pension to the extent of 10%. I.A. No. 1982 of 2011 has been filed on 10.3.2011 after serving copies on the respondents questioning the fresh orders dated 20.10.2010 and 14/18.1.2011 giving retrospective effect to the punishment from the date of superannuation. The I.A. application is not on record. Let the office place the I.A. application on record. The Court requested Counsel for the petitioner to make available her copy for perusal so as not to hold up proceedings on that ground. A last submission was made that considering his superannuation on 31.1.1996 and that the lapses and the delay in conclusion of the proceeding rested with the respondents exclusively, his advanced age, the quantum of punishment imposed may be modified after holding that it could not be given retrospective effect. Counsel for the State submitted that the petitioner has not alleged any procedural infirmity in the departmental proceeding. Two of the three charges were proved. Charge no. 1 related to missing of Forms F and F1 from the Almirah which the petitioner did not deny during the proceeding. Likewise charge no. 3 was also not denied that he ignored government instructions and opened parallel file with regard to issuance of Form F to a businessman. If the charge was not denied by him the Court may not interfere. The departmental proceedings were initiated in service. The continuance thereof under Rule 43(b) of the Bihar Pension Rules (hereinafter called the Pension Rules) was therefore justified. The Court finds it difficult to up hold the contention of the petitioner that punishment under Rule 43(b) of the Pension Rules could be imposed for 3 a gross misconduct which must necessarily result in pecuniary loss to the State Government. If the argument were to be accepted, a departmental proceeding initiated while in service, may well turn out to infructuous incapable of appropriate orders, despite a finding of guilt. There shall have to be a distinction between a departmental proceeding commenced in service and continued under Rule 43 (b) of the Pension Rules and a departmental proceeding initiated after superannuation under Rule 43 (b) of the Pension Rules. The nature of the punishment in the former shall necessarily have to be moulded when the pre- condition in the law for initiation in the latter shall first have to be fulfilled. In CWJC no. 4560 of 12999 the petitioner questioned the departmental proceeding for lack of procedural compliance causing prejudice. In CWJC No. 5382 of 2005 no procedural irregularity was alleged except the nature of punishment being impermissible after superannuation. The submission that the writ petition had raised several issues of irregularity in the proceedings merits no consideration as it is a matter of common practice that several issues are pleaded in challenge but all of them are not pressed as noticed in (2010) 1 SCC 722 (Ram Bharose vs. State of U.P.) at paragraph 15 as follows:- “15. It is experience of one and all that in the memorandum of appeal or revision, several grounds are taken/pleaded but at the time of the arguments the learned advocate would confine himself to few points which he considers to be best and presses only those points to be considered by the Court. It is not the case of the appellant that a particular point was argued but is not dealt with by the High Court. In the memorandum of special leave petition no grievance is made by the appellant that certain points were urged but were not considered by the High Court. As the learned Advocate for the appellant and others had emphasised three points before the High Court, the High Court was justified in considering those points and not adverting to all the points which were raised in the memorandum of appeal.” The Court cannot go behind the order in CWJC No. 5382 of 2005. 4 A retrospective order of punishment is not permissible in law has been considered in AIR 1966 SC 951 (R. Jeevaratnam vs. State of Madras) at paragraph 5 as follows:- “5……..An order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to the valid and severable part of the order.” It is for the respondents to do some soul searching and fix answerability and accountability that if proceedings were deliberately being conducted by some one in their office with an intention to help the petitioner by enabling him to approach this Court repeatedly and have the order set aside repeatedly. The initial punishment was passed without furnishing the enquiry report. After superannuation the punishment passed was of a nature applicable to a person in service only. Now a retrospective punishment order has been passed. Public power given for a public purpose has to be exercised for public good failing which the questions of answerability and accountability for abuse of the power shall necessarily arise. The respondents have issued orders on 20.10.2010 vide letter no. 281/C to the office of the Accountant General making the deduction of pension to the extent of 10 % applicable from the date of superannuation i.e. 31.1.1996. The Court has already held the same to be not sustainable. The order dated 20.10.2010 as communicated to the petitioner on 14/18.1.2011 by the office of the Accountant General are accordingly set aside. While this Court may not have found merit in the claims made in the writ application, nothing detracts from the right of the petitioner to file 5 a representation before the authorities on the question of quantum of punishment imposed on 20.10.2010 and which is a matter pertaining more to their domain, the exercise of which jurisdiction shall not be circumscribed by the present order. If the petitioner files such a representation the Court expects the respondents to consider the same in their wisdom but in accordance with law uninfluenced by the observations and discussion contained in the present order within a maximum period of three months from the date of receipt and/or production of a copy of this order. The writ application stands allowed to the extent indicated only. Snkumar/- (Navin Sinha,J.)