IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1078 of 2002 7 24.11.2008 Ram Naresh Sinha, S/o late Ram Sunder Singh, resident of Sheonagar, P.S. Riga, disttrt. Sitamarhi, at present residing at the house of N.M.Jha, Behind Labour Superintendent Officer, Tajpur Road, Samastipur VERSUS 1. The State of Bihar 2. Shri R.C.Vaishya, Commissioner and Secretary, Deptt. Of Labour Employment and Training, Govt. of Bihar, Patna. 3. Labour Commissioner, Govt. of Bihar, Patna 4. Deputy Secretary, Deptt. Of Labour Employment and Training, Bihar, Patna. ------- For the Petitioner : M/s Yogendra Mishra and Raghunath Kumar, Advocates For the State : Mr Rakesh Kumar Singh, Advocate. ------- Heard learned counsel for the petitioner and learned counsel for the State. Petitioner was transferred from the post of Labour Superintendent, Samastipur by order of the State Government dated 30.6.2000. He did not join the transferred post at Barh for a long period and, therefore, he was ultimately relieved by departmental notification dated 30.6.2001. On account of violating the aforesaid two orders, he was ultimately put under suspension with effect from the date of issuance of the order dated 29.8.2001 (Annexure 6). Petitioner superannuated from service on 31.8.2001. By resolution dated 10.11.2001 (Annexure-10), a departmental proceeding against the petitioner was commenced in respect of the allegations for 2 which he was suspended. From the enquiry report dated 13.8.2003 (Annexure-11) it transpires that in respect of the aforesaid allegation the charge no.1 was found proved. So far as another related charge that he did not join the headquarters on suspension with effect from 29.8.2001, was held not proved. By the impugned order dated 24.12.2003 (Annexure-12) on the basis of finding in the enquiry report and after considering his show cause pursuant to second show cause notice, Government decided that for the period 29.8.2001 to 31.8.2001 when the petitioner was placed under suspension he would not be entitled to any other payment except subsistence allowance. The aforesaid order of punishment has been challenged on the ground that for another charge relating to his tenure at Samastipur, petitioner was punished by order dated 20.12.2001 but the said punishment was quashed by this Court in CWJC No.8665 of 2002. It has been further submitted that the impugned order makes a reference to that proceeding also and is bad in law, mainly for the reason that petitioner had already superannuated and thereafter no departmental proceeding could be initiated against him. On behalf of the petitioner reliance was placed upon a judgment of this Court in the case of Dr Lakshmi Narain Singh v. State of Bihar, 1989 BBCJ 147 which was a judgment 3 rendered by a third Hon’ble Judge on account of difference of opinion between two Judges of a Division Bench. In that case after noticing relevant Supreme Court judgments, the Hon’ble Court held that further enquiry may be permitted even after retirement if the Government servant had been denied reasonable opportunity to place his defence before passing of an adverse order. In respect of commencement of departmental proceeding, in paragraph 8 this Court concluded after considering earlier judgments that in absence of a specific rule, disciplinary action is not maintainable after the retirement of a Government servant. Learned counsel for the State has submitted on the basis of a judgment of the Supreme Court in the case of Ramesh Chandra Sharma v. Punjab National Bank, (2007) 9 SCC 15 that since there was a provision in the regulations of the concerned Bank hence the Apex Court held that continuation of a disciplinary proceeding in spite of superannuation from service was permissible under the regulation. In the present case, the issue is whether Rule 43 of the Bihar Pension Rules, 1950 (hereinafter referred to as ‘the Rules’) permitted continuance or initiation of a departmental proceeding against a superannuated Government servant and if 4 so, whether the conditions have been fulfilled in this case or not. Rules 43 (a) and (b) provide for action against a pensioner in certain circumstances but the proviso puts an embargo that such departmental proceeding if not instituted while the Government servant was on duty either before retirement or during re-employment, shall not be instituted unless there be sanction of the State Government and the concerned event must not have taken place more than four years before the institution of the proceedings and it must be conducted by such authority as the State Government may direct and as per procedure permissible for a proceeding for a major punishment. However, there is an explanation added to the aforesaid proviso which mentions that for the purpose of the said Rule, a departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date. A Government servant can be placed under suspension only when he is in service before superannuation. Hence, explanation (a) contemplates that if the Government servant was placed under suspension on certain allegations then the bar provided by way of proviso in Rule 43(b) has been relaxed on account of explanation. In the present case, a 5 reading of the order of suspension contained in Annexure-6 further clarifies that there was specific mention that charges shall be issued separately for initiating a disciplinary proceeding against the petitioner. This Court is of the considered view that since the Rules permitted the disciplinary proceeding in question hence the proceeding does not suffer from any illegality. The order of punishment is quite reasonable and does not suffer from any excesses. Hence, this Court finds no good reason to interfere in the matter. This Court also finds no merit in the submission that Rule 43 does not apply because of the nature of the allegations. The writ petition is, therefore, dismissed. However, it is made clear that the period of suspension shall be treated to be period spent on duty for the purpose of pension. (Shiva Kirti Singh, J.) sk