IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3715 of 2007 Ramanand Thakur, S/O- LATE SUDAMA LAL THAKUR, RESIDENT OF VILLAGE- SONAPUR BAZAR, P.S.- NARPATGANJ, DISTRICT- ARARIA :----PETITIONER. Versus 1. The State Of Bihar 2. THE COMMISSIONER-CUM-SECRETARY, WATER RESOURCES DEPARTMENT, BIHAR, PATNA. 3. THE COMMISSIONER-CUM-SECRETARY, MINOR IRRIGATION, BIHAR, PATNA. 4. ENGINEER-IN-CHIEF, MINOR IRRIGATION, BIHAR, PATNA. 5. THE ENGINEER-IN-CHIEF, WATER RESOURCES GOVERNMENT OF BIHAR, PATNA. 6. THE CHIEF ENGINEER, MECHANICAL IRRIGATION, BIHAR, PATNA. 7. THE CHIEF ENGINEER, TUBE-WELL PRABHAG, MUZAFFARPUR. 8. DEPUTY SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 9. JOINT SECRETARY, MINOR IRRIGATION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 10. DEPUTY SECRETARY, GOVERNMENT OF BIHAR, MINOR IRRIGATION DEPARTMENT, BIHAR, PATNA :---RESPONDENTS. ---------------------------------- For the petitioner :- Mr. Taranath Jha, Advocate. For the State :- Mr. Ram Subhas Singh, A.C. to A.A.G-15. ========= 2. 21.09.2011. Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Assistant Engineer in the Tubewell Division, Madhepura. By filing this writ petition he initially questioned the validity of the order bearing Memo No. 1785 dated 13.4.2004, Annexure-4, whereunder his 50 per cent pension emolument was withheld for ever with further direction that petitioner shall not be paid during the period of suspension any amount beyond the Subsistence Allowance. During the pendency of the writ petition petitioner sought review of the order dated 13.4.2004 on 2 the ground that the same was passed without giving him opportunity to refute the findings recorded by the Enquiry Officer. Aforesaid request of the petitioner for review of the order dated 13.4.2004 was allowed and order dated 13.4.2004 was cancelled under order dated 26.6.2007, Annexure-6 with direction to serve second show-cause notice on the petitioner granting him opportunity to refute the findings recorded by the Enquiry Officer. In the light of the order dated 26.6.2007, Annexure-6 petitioner was issued and served with second show-cause notice dated 29.6.2007, Annexure-5, in response whereto he submitted his reply dated 23.7.2007, Annexure-7. Having considered the second show-cause reply another punishment order dated 24.10.2007, Annexure-8 was passed reiterating the same punishment which was imposed under order dated 13.4.2004. By filing interlocutory Application No. 2335 of 2008 petitioner challenged the punishment order dated 24.10.2007, Annexure-8. It appears, while petitioner remained posted as Assistant Engineer in the Tubewell Division, Madhepura, certain financial irregularities were alleged against him for which charge-sheet bearing Memo No. 901 dated 9.2.1998, Annexure-1 was served alleging that he in connivance with Junior Engineer Sri Ganga Prasad Mahto released payment of Rs. 76,603.50 paisa in favour of Sri Mahto without verification of the civil work executed by Sri Mahto. Other charge levelled against the petitioner 3 is that he recommended Rs. 380.95 paisa per cubic fit as the rate for soil cutting in connivance with Executive Engineer ignoring the scheduled rate of Rs. 201.90 paisa per cubic fit and thereby caused loss of Rs. 7,230.76 paisa to the exchequer. The third charge alleged against the petitioner is that he recommended payment of Rs. 1,77,128.60 paisa without verifying the execution of the civil work causing loss of the said amount to the exchequer. 3. After service of the charge-sheet petitioner was served with the suspension order dated 25.9.1997 on 4.8.1998, in response whereto he joined the headquarter fixed for the period of suspension on 05.08.1998, as was directed under the suspension order. It is submitted on behalf of the petitioner that during the period between 25.9.1997 and 4.8.1998 he was regularly present at the place of his posting at Bhagalpur but for reasons best known to the authorities the suspension order dated 25.9.1997 was never served on the petitioner and he continued to receive salary from 25.9.1997 till July, 1998. 4. In response to the aforesaid charge-sheet petitioner submitted his written defence dated 09.10.1998, Annexure-2 before the Enquiry Officer refuting the three charges and submitted that the charges levelled against him are misconceived and he be exonerated of the allegations constituting the three charges. 4 5. Inspite of submission of written defence by the petitioner there was no progress in the departmental proceeding and petitioner superannuated from service with effect from 31.1.2000. In consideration of the fact that petitioner was to superannuate with effect from 31.1.2000 the authorities vacated his suspension under order dated 31.1.2000, Annexure-3 with instruction that the decision about payment of salary to the petitioner for the suspension period shall be taken after conclusion of the departmental proceeding already initiated against the petitioner. After about four years of the retirement of the petitioner the earlier punishment order dated 13.4.2004 was passed against the petitioner without giving him any opportunity to refute the findings recorded by the Enquiry Officer under report dated 10.10.2001 as the said report was not served on the petitioner, he could not refute the findings recorded therein. Aforesaid objection was taken by the petitioner by filing review petition. In consideration of the request made in the review petition the authorities passed order dated 26.6.2007 and cancelled the earlier punishment order dated 13.4.2004 with direction to serve on the petitioner the second show-cause notice annexing the copy of the enquiry report. In compliance of the order dated 26.6.2007, Annexure-6 petitioner was served with the second show-cause notice annexing the Enquiry Report dated 10.10.2001 asking him to show-cause as to why he be not punished on the basis of the findings 5 recorded by the Enquiry Officer against him proving the three charges levelled against him under charge-sheet dated 09.02.1998, Annexure-1. In response to the second show-cause notice dated 29.6.2007, Annexure-5 petitioner filed reply dated 23.7.2007, Annexure-7 again reiterating the same stand which he had earlier taken in his written defence dated 09.10.1998, Annexure-2. 6. State Government having considered the reply of the petitioner dated 23.7.2007 passed the impugned order dated 24.10.2007, Annexure-8 maintaining the earlier punishment imposed on the petitioner withholding of his 50 per cent pension for ever as also non-payment of salary beyond the Subsistence Allowance for the period of suspension. 7. Petitioner is assailing the punishment order dated 24.10.2007, Annexure-8 on the ground that allegations were levelled against him while petitioner remained posted as Assistant Engineer in the Minor Irrigation Division, Madhepura in compliance of posting order bearing Memo No. 2757 dated 31.10.1992 and was relieved to join Bhagalpur on 14.09.1996 but the charge- sheet was served on the petitioner after about two years of his departure from Madhepura under Memo No. 901 dated 09.02.1998, in response whereto written defence was filed by the petitioner on 09.10.1998 but the same was not considered during the service tenure of the petitioner i.e. 31.01.2000. After four years of his 6 retirement earlier punishment order dated 13.4.2004 was passed. It is submitted on behalf of the petitioner that considering the delay caused in conducting the departmental proceeding, this Court should quash the punishment order as the same has been finally made after about seven years of the retirement of the petitioner and more than ten years after petitioner was relieved from Madhepura where he is alleged to have committed the financial irregularities in connivance with the Junior, Executive Engineer. 8. Another submission which is raised in support of the prayer made in the writ petition is that under the provisions of Rule 43B of the Pension Rules under which the punishment order has been passed the Government is empowered to withhold the pension or any part thereof to recover the pecuniary loss caused by the pensioner to the exchequer, provided the pensioner is found guilty of the misconduct in a departmental proceeding. In this connection, it is pointed out that if the allegation made in the charge-sheet as also the findings recorded in the Enquiry Report is read in between the lines then this Court will appreciate that against Charge No. 1 petitioner is found to have caused loss of Rs. 76,603.50 paisa to the exchequer. Against Charge No. 2 petitioner is found to have caused loss of Rs. 7230.76 paisa and against Charge No. 3 he is said to have caused loss of Rs. 1,77,128.60 paisa. The aggregate of the 7 aforesaid amount is Rs. 2,60,962.86 paisa and the authorities should have recovered 1/3rd of the aforesaid amount from the pension payable to the petitioner as he is alleged and found to have committed financial irregularities in connivance with the Junior, Executive Engineer. 9. Counsel for the State has opposed the prayer and submits that proceeding was initiated against the petitioner under charge-sheet dated 09.2.1998, Annexure-1 soon after petitioner was relieved from his posting at Madhepura where he is said to have committed the financial irregularities and delay was caused because of the reasons attributable to the petitioner as he was not cooperating in early receipt of the suspension order and the charge-sheet. He further submitted that in the light of the provisions contained in Rule 43 B of the Pension Rules any amount from pension payable to the petitioner is liable to be recovered, provided the service-holder is found guilty in a criminal or departmental proceeding. In the instant case petitioner having been found guilty of the financial irregularities by the Enquiry Officer, withholding of 50 per cent pension is quite reasonable and this Court should not interfere with the punishment order. 10. Having heard counsel for the petitioner and the State and having perused the Enquiry Report dated 10.10.2001 and the punishment order 24.10.2007, Annexure-8, I am of the view that petitioner has been 8 found guilty of the three charges that he made payment without verification of the civil work and also recommended higher rate for soil cutting than the scheduled rate. Total loss quantified against the petitioner is at Rs. 2,60,962.86 paisa, as such, in my opinion, the State Government relying on the provisions of Rule 43B of the Pension Rules should have recovered the amount of loss caused at the instance of the petitioner i.e. Rs. 2,60,962.86p from the pension payable to him and not his 50 per cent pension for ever. The submission of the learned counsel for the petitioner that petitioner caused loss of Rs. 2,60,962.86p in connivance with the Junior, Executive Engineer therefore, only 1/3rd of the loss amount be recovered from the petitioner, has no substance as loss of the aforesaid amount may not have been caused if petitioner has not cooperated with Junior, Executive Engineer. 11. Accordingly, the punishment order dated 24.10.2007, Annexure-8 is modified directing the authorities to recover the amount of loss caused to the exchequer from the pension payable to the petitioner and any amount already recovered from the petitioner beyond Rs. 2,60,962.86 paisa, be refunded to the petitioner within a reasonable time, not exceeding three months. It has been asserted by the petitioner that the suspension order dated 25.9.1997 was served on him on 4.8.1998, soon thereafter he joined the place of his Headquarter 9 fixed during the period of suspension on 5.8.1998 and was paid Subsistence Allowance with effect from 05.08.1998 but prior thereto i.e. between 25.09.1997 till July, 1998 he was allowed to receive salary. On account of failure of the authorities to serve the suspension order dated 25.9.1997 on the petitioner, until 4.8.1998 petitioner was allowed to discharge duties and was paid salary for the period between 25.9.1997 till July, 1998 but the salary for the said period has been recovered from his leave salary, so submitted counsel for the petitioner. Aforesaid amount, if already recovered, be refunded to the petitioner as petitioner was allowed to serve and receive salary for the period between 25.09.1997-July, 1998 for the failure of the authorities to serve the suspension order on him until 4.8.1998. Refund of the salary amount be also made to the petitioner within the same time. 12. The writ petition is, accordingly, disposed of. A.F.R. P.K.P. (V.N.Sinha,J.)