IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9020 of 2011 Chandeshwari Prasad Yadav SON OF LATE MAUZI LAL YADAV RESIDENT OF RADHANAGAR WARD NO. 13, P.S. SAHARSA TOWN, DISTRICT SAHARSA. Versus 1. The State Of Bihar THROUGH CHIEF SECRETARY, BIHAR, PATNA. 2. PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA. 3. SPECIAL SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA. 4. JOINT SECRETARY CUM ADDITIONAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, PATNA. 5. ENGINEER-IN-CHIEF-CUM-ADDITIONAL COMMISSIONER-CUM-SPECIAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, PATNA. 6. DEPUTY SECRETARY (VIGILANCE) ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA. 7. ACCOUNTANT GENERAL, BIHAR, PATNA. ---------------------------------- For the Petitioner :- Mr. Surendra Kumar Singh with Mr. Sudha Chandra For the State :- Mr. Sunil Kumar Ravi, A.C. to AAG III For Respondent no. 7:- Mr. Binod Kumar Labh. -------- 2 26/08/2011 The Court is not required to take note of all factual positions into consideration looking at the legal proposition which has been urged at the Bar with regard to the order of punishment imposed on the petitioner contained in annexure-10 which is dated 1.4.2011. Petitioner wants quashing of this order on the ground that withholding of 100% pension in exercise of - 2 - power under Rule 43-B of the Bihar Pension Rules is in violation of all canons and laws declared by this Court and even the Apex Court on this aspect of the matter. Petitioner was an Executive Engineer posted at Khagaria for the period 1993-96. It is for this period of posting that subsequently, he came within the ambit of an enquiry or investigation initiated by the C.B.I. on the direction of Patna High Court. The Court is referring to what is known as Bitumen Scam in Bihar. The allegation made against the petitioner is that while being posted as Executive Engineer, he never informed the superior authorities that there was no requirement of Bitumen in his Division and that led to supply of un-wanted Bitumen, transportation to the said district, which was subsequently either misappropriated or vanished during the course of transportation. A vigorous investigation was carried out by the C.B.I. and many a persons were chargesheeted including the high profile persons involved in the said scam leading right upto the Minister Incharge at the relevant time. So far as the present petitioner is concerned, though the C.B.I. does in its investigation reflect that - 3 - there is 164 Cr.P.C. statement against the petitioner alleging that he had taken bribe of Rs.20,000/- to cover up the issue or not informing the factual position with regard to the requirement or otherwise. The C.B.I. did not find it prudent to chargesheet the petitioner on the available evidence procured against the petitioner. In other words, no criminal proceeding was initiated but in the year 2003 the C.B.I. recommended to the State Government that a departmental proceeding may be initiated against the petitioner for his omission. Petitioner superannuated on 31.07.2003. Based on the recommendation of the C.B.I. he was issued a chargesheet contained in annexure-1 on 22.06.2004. The enquiry dragged on for many a years for many a reasons and the protestation of the petitioner with regard to the validity of such an enquiry was ignored. When the enquiry was finally concluded the Enquiry Officer exonerated the petitioner on all counts as would be evident from perusal of annexure-7 annexed with the writ application. Despite such exoneration, a second show cause was issued to the petitioner. From a reading of the second show cause contained in annexure-8 it seems that - 4 - the disciplinary authority disagreed with the findings, went with the observation of the C.B.I. for holding a departmental enquiry where the fact that the petitioner was given a bribe of Rs.20,000/- was talked about. Based in this circumstance and not satisfied with the explanation offered by the petitioner, the order of punishment contained in annexure-10 dated 1.4.2011 was imposed on the petitioner and the punishment is withholding of 100% pension. All these facts are not in dispute. The second aspect of the matter is that any omission and commission which is alleged against the petitioner, even according to the respondents, relate to the period 1994-96. An enquiry was initiated as already noticed above on 22.06.2004. In the above factual matrix, one primary submission made at the Bar on behalf of the petitioner is that the entire proceeding and, therefore, even the order of punishment passed against the petitioner stands vitiated, if not barred and hit by the provisions of Rule 43-B of the Bihar Pension Rules. The provision of Rule 43-B of the Bihar Pension Rules has been the subject matter of debate and adjudication in - 5 - many a cases. There are plethora of decisions which categorically lay down that any proceeding under Rule 43-B of the Bihar Pension Rules can only be initiated with regard to an “event” within four years of retirement of an employee. What is meant by “event” has also been the subject matter of debate and adjudication. The Court is not required to take note of all those decisions but a recent decision, as recent as 2010 supports the contention urged at the Bar by the learned counsel for the petitioner. The attention of the Court has been drawn to the case of Urmila Sharma alias Urmila Singh Vs. State of Bihar and others reported in 2010(3) PLJR., 845. The ratio laid down by the Division Bench is best reflected on reading of paragraphs 8 and 9 of the said decision. If that is the consistent view of this Court on such an issue, then applying the said principle to the present set of facts, one thing which emerges is that the dispute is that the “event” with regard to the present petitioner relates to the year 1994-96 when Bitumen were supplied/not supplied whatever be it. By no stretch of imagination or even by simple calculation that event does not add up to four years prior to the retirement of the - 6 - petitioner which happened on 31.07.2003. If that be so, then merely because the C.B.I. wrote to the State authorities to hold a departmental enquiry against the petitioner does not shift the mile post in any manner because departmental enquiry which was to be conducted by the State government has to be conducted within the parameters of law or the rules applicable to such a proceeding. Since power has been exercised purportedly under Rule 43-B of the Bihar Pension Rules, then the Division Bench decision which has been cited and noted above surely protects the petitioner from any kind of punishment which has come to visit him in the background which has been noted in the earlier part of the order. Learned counsel representing the State has filed a rather comprehensive counter affidavit. They have given a narration of events which led to the initiation of proceeding. From a reading of the counter affidavit, the factual matrix which has been dealt with in the earlier part of the order does not alter but their insistence is that since the C.B.I. gave a direction or recommended to the - 7 - State government to initiate the proceeding in 2003, the event stretches even to 2003 and that is within four years of the retirement of the petitioner. With due respect to the learned counsel for the State, such an interpretation would be doing violation to not only of the legal language deployed by the Legislature with regard to Rule 43-B of the Bihar Pension Rules but even violation to the Division Bench decision rendered in the case of Urmila Sharma (Supra) which has been the consistent view of the High Court on the issue. The Court has no option but to quash annexure- 10 and allow this writ application. The petitioner would be entitled to be paid what is rightfully due to him as a retired employee whatever be the actual state of affair or his conduct otherwise. AMIN/ (Ajay Kumar Tripathi, J.)