IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.4397 OF 2008 HARIDWAR PANDEY, SON OF LATE R. D. PANDEY, RESIDENT OF LAXMI BHAWAN, SOUTH PATLIPUTRA COLONY, POLICE STATION PATLIPUTRA, DISTRICT PATNA .....................................................................PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, VISHVESHRAIYA BHAWAN, BAILEY ROAD, PATNA 2. THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, VISHVESHRAIYA BHAWAN, BAILEY ROAD, PATNA 3. THE DEPUTY SECRETARY –CUM- CHIEF VIGILANCE OFFICER, ROAD CONSTRUCTION DEPARTMENT, VISHVESHRAIYA BHAWAN, BAILEY ROAD, PATNA 4. THE ACCOUNTANT GENERAL, BIHAR, BIRCHAND PATEL MARG, PATNA 5. THE SENIOR ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL, BIHAR, BIRCHAND PATEL MARG, PATNA .........................................................................................RESPONDENTS *********** FOR THE PETITIONER :- MR. HARIDWAR PANDEY, IN PERSON FOR THE A.G. :- MR. VIVEKANAND KUMAR, ADVOCATE FOR THE S T A T E :- MR. S. R. SHARAN, AC TO AAG V ********** 8 26 .08.2011 This is one of those unfortunate cases in which the dispute is pending and much time has elapsed on the issues in hand but the order passed in the departmental proceeding could not be affected for the reasons mentioned hereunder. The petitioner retired on 31.1.1987 as Executive Engineer, Road Construction Department, Bihar. By Annexure 5, dated 19.2.1987 a decision was taken on behalf of the Government to institute a proceeding against the petitioner. Thereafter memo of charges was served vide Annexure 1 on 25.11.1997. The petitioner was asked to show cause. The petitioner did 2 not file a reply to the show cause taking an objection that the disciplinary proceeding was not maintainable in view of rule 43(b) of the Bihar Pension Rules. The enquiry was held which is contained in Annexure-J to the counter affidavit. The enquiry officer found the petitioner guilty of ten charges. Before passing the order the disciplinary authority issued second show cause notice to the petitioner which was received by his son. The second show cause notice along with the enquiry report was returned to the department with the comment that the enquiry report provided was not legible and as such the delinquent cannot file an effective show cause in the matter. Eventually Annexure 15, the order impugned order was issued deducting 30% of pension and gratuity payable to the petitioner. Being aggrieved in the manner in which the proceeding has been conducted, the petitioner has moved this Court. I may mention here that the allegations against the petitioner are that he violated the terms of the agreement of the year 1980 and increased the length of the bridge on N. H. 30 by 15 meters and thus, caused loss to the exchequer of the State Government. Several issues have been raised on behalf of the petitioner. It has been submitted that the departmental proceeding could not be instituted under 3 rule 43(b) of the Bihar Pension Rules. The enquiry was ex parte and the petitioner did not get an opportunity to file reply to the second show cause notice and that the presenting officer could not in fact substantiate the allegations. This court has confined itself to the first point raised on behalf of the petitioner. There is no doubt about the fact that there was a Government resolution to institute an enquiry on 19.2.1987. Both the parties have placed reliance on this document. The State counsel has drawn the attention of this court that at the time when Annexure 5 was issued, certain documents were annexed along with the resolution of the State Government. It is submitted that on 19.2.1987 the charges had already been framed and had been supplied to the petitioner who had replied to the charges. In reply counsel for the petitioner relies on page ten of the written arguments which has been filed in an affidavit form. This is a letter written by the Technical Officer which indicates that there was some allegation against the petitioner with respect to increasing the length of the bridge and paying excessive amount to the contractor. It has been stated in this letter, dated 1.5.1985 that the enquiry could not be held on the allegations because the relevant documents were 4 not available. These facts would be borne out from the documents itself. This letter dated 01.05.1985 has been referred in the letter of the State Government contained in Annexure 5, dated 19.2.1987. The State counsel submits that the fact that it is mentioned that „Aroppatra‟ which was annexed with the document, indicates that the charges were framed on 19.2.1987 itself. The submissions of the State counsel have to be examined on a co-joint reading of Annexure 5 and the written arguments. This court comes to the conclusion that the „Aroppatra‟ referred to actually is with respect to the allegations levelled against the petitioner for which there was preliminary enquiry. These have been forwarded to the State Government and, thus, the State Government has taken a decision on 19.2.1987 to institute a proceeding under rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 2005. Although the proceeding could not have been instituted under rule 55, it is to be presumed that it was meant to be instituted under rule 43(b) of the Bihar Pension Rules. Once this court comes to the conclusion that in fact the charges have not been framed at the time when the State Government took a resolution to proceed 5 in the matter, the court will now see whether the proceedings could have been initiated under rule 43(b) of the Bihar Pension Rules. Rule 43(b) reads as follows : “(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that – (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii)shall be conducted by such authority and at such place or places as the State Government may 6 direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub- clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation.- For the purposes of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if t he Government servant has been placed under suspension from an earlier d ate, on such date; and (b) judicial proceedings shall be deemed to have been instituted:- (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court”. As per sub-rule (a) of rule (b), the 7 departmental proceeding if not already institute should be instituted with respect to an event which took place not more than four years before institution of such proceeding. It is admitted that the charges were framed on 29.11.1995 vide Annexure 7 of the writ petition for an occurrence which had taken place with respect to an agreement executed in 1980. The work under the agreement continued from 1980 to 1983. In the aforesaid facts, it is loud and clear that the proceedings have been instituted for an event which took place four years before the institution of the proceedings. It has been provided in the explanation of rule 43(b) that a departmental proceeding shall be deemed to have been instituted when 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. In this context, Counsel for the State had argued that as per the provisions of rule 43 (b) of the Bihar Pension Rules, the petitioner was in fact placed under suspension during his service period and, as such, the proceeding would not be barred by the fact that it has been instituted for an event which took place more than four years prior to the retirement of the petitioner. This Court had called for the records as it 8 has been vehemently argued that in fact no suspension letter was ever issued to the petitioner. In this context, petitioner argued that he had applied for voluntarily retirement on 19.04.1984. The application of the petitioner was duly received as it would be apparent from page 287 and 288 of the brief. The Government did not respond to the letter sent by the petitioner addressed to the Commissioner-cum- Secretary, Road Construction Department, Bihar, Patna, as such, this Court presumes that the petitioner actually retired on 31.01.1987 which is the due date on which his retirement was to take place. The question as to whether the petitioner was issued a letter of suspension may be considered in context with the decision taken by the State Government regarding a departmental proceeding to be initiated against the petitioner. It would appear from the file of the State Government that on 14.01.1987, the matter was placed before the Joint Secretary. In this context, the note of the Joint Secretary indicates that he has noted the proposal for initiating a departmental proceeding for which the draft charges had to be prepared and sent for approval before the Secretary to consider as to whether the charges should be sent to the Law Department. The matter was placed before the 9 Secretary who has noted that the matter has to be approved by the Chief Minister in terms of Rule 32 (KA) (I/II). It was finally approved by the Minister on 12.02.1987. The petitioner has pointed out that nowhere in the noting side has it been mentioned that the petitioner was placed under suspension or that an enquiry was held before framing of the charges. What was sent before the Minister was the memo of the charges. On the other hand, Counsel for the State submits that vide memo no. 137 dated 30th January, 1987, one day before the petitioner was to retire, this letter of suspension was issued. Counsel for the petitioner has pointed out that in the entire file relating to the petitioner, it has nowhere been mentioned that the petitioner was under suspension at the stage when the proceeding was initiated. This Court finds that even if it is presumed that the letter of suspension, which the petitioner claims is a backdated document was issued, it could not have reached the petitioner before his retirement and as such, no value can be attached to the suspension letter. It may be noted that there is no material to say that the letter was received by the petitioner by 31st January, 1987. I, therefore, cannot come to a conclusion that the 10 departmental proceeding for an event which took place sometime in the year 1981-82 is justified on the ground that the petitioner had been placed under suspension before his retirement. The attention of this Court has been drawn to the fact that although the decision and approval was taken for issuance of a charge sheet in 1987, the charge sheet was not issued till 1995. It has been submitted that the delay of 08 years cannot be explained by the State/department and as such the manner in which the department has proceeded in this matter is also not to be ascertained. It is most unfair and amounts to harassment to ask a person who has retired in the year 1987 to face a proceeding by serving him memo of the charges in the year 1995. In the opinion of this Court, this fact cannot be taken into account for quashing of the departmental proceeding, as there is dispute regarding the cause of the delay. Thus, this Court holds that the proceeding was initiated after a delay in the year 1995 for an event which took place between 1980 to 1983, and as such, the entire departmental proceeding stands vitiated for non-compliance of rule 43 (b) of the Bihar Pension Rules. 11 The petitioner has raised several other points, which have been enumerated below. (a) That the proceeding would be vitiated as they violate the principles of natural justice as the second show cause notices was never issued to the petitioner. I do not find merit in this contention raised on behalf of the petitioner as the son of the petitioner has received the notice, although it was returned stating that the show cause notice was not legible and, therefore, the petitioner cannot reply to such a notice. (b) The petitioner has raised the issue that, in fact it would be presumed that he had been voluntarily retired within a period of three months from the date of submitting the application/letter for voluntary retirement, since there was no communication from the department concerned, and as such, the issuance of the suspension letter would not be effective, assuming it was issued, as it would be deemed that he retired in the year 1984. I am not passing any order regarding this issue as it is not very relevant in view of the fact that I have already concluded that the suspension letter, if issued, was never served on the petitioner. In the result, this writ application is allowed 12 and the order dated 12.12.2007 deducting 30 % of the Pension/Gratuity from the retrial benefits and the order dated 23.01.2008 are hereby set aside. The petitioner would be entitled for fixation of his final pension and gratuity within a period of four months from the date of receipt/production of a copy of this order. The petitioner would also be entitled for receiving any arrears of salary due to him within the aforesaid period of four months. For the purpose of being paid the arrears of salary, it would be incumbent on the petitioner to file a representation before the concerned authority stating specifically his dues. On receipt of the representation, the concerned authority i.e. the Secretary, Road Construction Department, should examine the matter and direct for payment, if it is admissible to the petitioner in light of the fact that the department proceeding has been quashed by this Court. Haque/Anand ( Sheema Ali Khan, J.)