IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4440 of 2010 1. RANVIJAY PRASAD S/O LATE R. LALL R/O MOHALLA NEW YARPUR , BADRI SHAKUNTALAM APARTMENT NO. A-3, JHUNJHUN MAHAL ROAD , NEW YARPUR , GARDANIBAGH , PATNA -800001 , AT PRESENT PRACTICING AS ADVOCATE , PATNA HIGH COURT, PATNA Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY TO THE GOVERNMENT OF BIHAR OLD SECRETARIAT , PATNA 3. THE PRINCIPAL SECRETARY , DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS, GOVT.OF BIHAR, OLD SECRETARIAT , PATNA 4. THE UNDER SECRETARY DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS, GOVT.OF BIHAR, OLD SECRETARIAT , PATNA 5. THE DEPARTMENTAL ENQUIRY COMMISSIONER CUM CONDUCTING OFFICER GOVT.OF BIHAR, OLD SECRETARIAT , PATNA ----------- 2/ 26/10/2010 Heard learned counsel for the petitioner and for the State. The petitioner is stated to have superannuated on 28.2.2009 from the post of Director (Administration), H.R.D. Department. He is aggrieved by the order dated 6.1.2010 initiating departmental proceedings against him under Rule-43(b) of the Bihar Pension Rules (hereinafter referred to as the pension rules). Learned counsel for the petitioner submits that while he was in service and held the post of Additional Collector, Bhagalpur, in the year-2002-03 he discharged certain works of petty schemes approved by the Zila Parishad. An explanation was called for from him on 23.1.2004 which was duly replied. Nothing further transpired thereafter and the petitioner bona fide believed - 2 - that his explanation had been found acceptable and the matter drooped. The order presently impugned has then been passed. Assailing the order dated 28.2.2009 under Rule-43(b) of Pension Rules it was submitted that there was no justification in law for initiating departmental proceedings against the petitioner by a memo. of charge after nearly over seven years from the date of allegations. The charges relating to the year-2002-03 is clearly beyond the period of four years from the date of initiation of the proceeding dated 6.1.2010 and is therefore not sustainable in law. After the explanation had been called for in 2003-04 the petitioner has been promoted to the post of Joint Director (Mass Education) and superannuated from the post of Director. All these facts lend credence to his belief that the respondents did not find any materials in the allegations against him. In fact, the memo. of charges annexed to the order dated 6.1.2010 is not correct and has already been the subject- matter of the explanation given by the petitioner in service after which no action was taken. No proceedings therefore commenced against him while he was in service. The respondents after his superannuation have sanctioned his full pension also. The substance of the submissions therefore was of a belated departmental - 3 - proceeding after a lapse of over seven years and the proceedings being barred under Rule-43(b) of the Pension Rules as initiated beyond four years from the year of the charge. Learned counsel for the State submitted that it appears from annexure-3 dated 25.11.2003 that memo. of charges were issued to the petitioner in form-K calling for his explanation while he was still in service. The petitioner acknowledges to have replied to the same. The proceedings had therefore commenced in his service tenure. The order dated 6.1.2010 is nothing but a continuation of that proceeding and the language contained in the order is not determinative in isolation. What is relevant is, whether the Government had the power to continue the proceedings initiated in service after retirement or not. If the power be there, the language used in the order shall not be determinative. Stress is laid upon the nature of the charges involving allegations with regard to large sums of Government money running into lacs of rupees. The law stands well settled and needs no further discussion that if a departmental proceeding had been initiated during the service tenure of the incumbent and he superannuates during the pendency of the same, the proceedings do not lapse. It stands converted - 4 - automatically to one under Rule-43(b) of Pension Rules and no specific and formal orders to that effect are required. Therefore, the source of the power in the respondents to continue with the departmental proceedings is clearly there. The language used in the order dated 6.1.2010, undoubtedly, states that a decision had been taken to hold an enquiry under Rule-43(b) of Pension Rules into the enclosed charges by appointment of an enquiry officer. On the first flush it may appear to be the initiation of a fresh proceeding. But, a deeper probe would reveal that it was essentially a continuation of the same charges dated 25.11.2003 initiated in his service tenure. The fact that the proceedings remained pending for long years, cannot be sufficient justification to hold that the proceedings cannot be continued any further. Whether a departmental proceeding is belated or unjustified in its continuation cannot be decided in isolation of the nature of the charges. If the charges are trivial, not related to revenue matters and financial loss to the Government, different considerations may arise, but when the charges are serious, relating to alleged financial loss to the Government running into several lacs of rupees, whether the charges are correct or not correct is basically a matter to be decided in the departmental proceeding itself where the petitioner shall have full - 5 - opportunity to present his defence and which shall necessarily have to be considered. The present proceeding is not the appropriate stage to consider the defence of the petitioner to the allegations levelled against him. The charges at this stage are no more than mere allegations which may be found to be proved or not to be proved. In the nature of the charges, the Court is not persuaded to hold it be belated or harassment. The reasons why the proceedings remained pending for seven years and promotions came to be granted to the petitioner are all matters which shall appropriately have to be considered during the departmental proceeding itself. In conclusion, this Court holds that proceedings have been commenced prior to his superannuation, no formal orders of conversion under Rule-43(b) of Pension Rules is required. Keeping in mind the nature of the charges relating to Government revenue, this Court holds that the order dated 6.1.2010 is not the commencement of a fresh departmental proceeding, but is a mere continuation of the earlier proceeding. The Court arrives at this conclusion on the reasoning that if the power in the respondents to continue the proceedings commenced during service be - 6 - there under Rule-43(b) of the Pension Rules, that power cannot be vitiated merely by reason of any superfluous and erroneous recordings made in an order continuing the proceeding. In 1998(1) All. P.L.J.R. 476 (Ram Nandan Singh Vs. State of Bihar) a Bench of this Court at paragraph-13 has held that “If the proceeding is pending from before, the same may be continued…..” The Supreme Court in (2007) 9 SCC 698 (STATE OF U.P. AND OTHERS Versus R.C. MISHRA) at paragraph-10 and 12 has held as follows:- “10. A combined reading of the proviso and the Explanation would show that there is no fetter or limitation of any kind for instituting departmental proceedings against an officer if he has not attained the age of superannuation and has not retired from service. If an officer is either placed under suspension or charges are issued to him prior to his attaining the age of superannuation, the departmental proceedings so instituted can validly continue even after he has attained the age of superannuation and has retired and the limitations imposed by sub-clause (i) or sub-clause(ii) of Clause (a) of proviso to Regulation 351-A will not apply. It is only where an officer is not placed under suspension or charges are not issued to him while he is in service and departmental proceedings are instituted against him under Regulation 351-A after he has attained the age of superannuation and has retired from service and is not under re- employment, that the limitations imposed by sub- clause (i) and (ii) of Proviso (a) shall come into play.” 12. In the present case, the respondent had been placed under suspension and charges were also served upon him while he was in service. In such circumstances, Proviso (a) did not come into play at all and there was no requirement of - 7 - obtaining sanction of the Governor. The enquiry which had been instituted prior to the retirement of the respondent and was completed after his retirement could not, therefore, be held to be illegal on the ground of want of sanction of the Governor. The view to the contrary taken by the Tribunal and by the High Court is, therefore, clearly erroneous in law and cannot be sustained.” Nothing in this order shall be construed as an opinion or affirmation of the allegations against the petitioner which are matters to be decided in the departmental proceedings itself by a reasoned and speaking discussion dealing with his defence fully. Let the departmental proceedings be concluded within a maximum period of six months from the date of receipt/presentation of a copy of this order, provided the petitioner himself cooperates. The application is dismissed. KC ( Navin Sinha, J.)