IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8803 of 2005 BULKAN PRASAD SINGH . Versus THE STATE OF BIHAR & ORS . ----------- For the petitioner:- Mr. Rajendra Prasad, Senior Advocate & Mr. Pramod Kumar, Adv. 4 22.2.2011 Heard counsel for the petitioner and the State. A detailed counter affidavit has been filed by the State-Respondents. Petitioner has filed this application for quashing of order contained in Memo no. 106 dated 10.2.2005, whereby punishments have been awarded to the petitioner by the Disciplinary authority in the departmental proceeding. Further relief prayed by the petitioner is for a direction to the respondents to make payment of gratuity with interest. Payment of salary for the period of suspension minus subsistence allowance and to conclude the period of suspension as period of duty for granting increment and pensionary benefits as well as for payment of 100% pension and other pensionary benefits with interest. Following punishments were imposed against the petitioner:- (i) Besides the subsistence allowance nothing will be paid to the petitioner for the period of 2 suspension. (ii) Period of suspension will be treated as absence from duty and it will not be calculated for allowing increments and pension. (iii) 90 per cent pension paid to the petitioner will be rejected. (iv) Payment of 100 per cent gratuity will berejected. (v) Embezzled amount will be recovered from the petitioner, subject to order passed in the criminal case. I.A. No. 4543 of 2010 has been filed by the petitioner for amending the relief prayed in the main writ application and the additional relief prayed by the petitioner is for quashing of the order dated 22.9.2005 issued under the signature of Industrial Development Commissioner contained in memo no. 2326 dated 28.9.2005, whereby appeal preferred by the petitioner against the order passed in the departmental proceeding has been rejected and the order of punishment awarded in the departmental proceeding has been affirmed. Petitioner was posted as an Accountant in the Industries Department, while he was put under 3 suspension on 7.9.1996 in contemplation of the departmental proceeding. Charges were framed and furnished to the petitioner on 23.7.1997 and the petitioner was asked to submit his show cause. Receiving the charge-sheet petitioner filed a representation with a prayer to keep the departmental proceeding in abeyance, till conclusion of the criminal case instituted in relation to same charges for which the departmental proceeding had been initiated. Vigilance Case No. 10 of 1997 had been instituted for similar allegation, in which petitioner was also one of the accused. Petitioner’s case is that allegation in the criminal case as well as charges framed in the departmental proceedings being identical, it would have been proper not to proceed with the departmental proceeding till disposal of criminal case. Petitioner, otherwise would be compelled to disclose all his defence, during the pendency of the criminal case. Counsel for the petitioner submits that petitioner was waiting for the order on his representation by the disciplinary authority but there was no response, and no order was ever 4 communicated to him. In the meantime on 31.10.1997 he superannuated from service. Petitioner did not receive any communication from the respondents that unconcluded departmental proceeding has been converted into a proceeding under Rule 43 B of the Bihar Pension Rules. In order to proceed with an unconcluded departmental enquiry against a retired Government employee, it was mandatory to convert it into a proceeding under Section 43(B) of the Pension Rules, in case the Government wanted to prosecute the retired employee for charges framed against him. Counsel for the petitioner submits this is well settled law that after retirement of a Govt. employee, there do not exist any relationship of employer and employee in between the employee and State. In order to combat such situation, a departmental proceeding can continue in term of provision under Rule 43 B of the Bihar Pension Rules. The departmental proceeding can be converted into a proceeding under pension rules, for prosecuting the retired Government employees. In case it is done, an unconcluded departmental proceeding can continue against the retired government employees in an 5 illegal manner. Petitioner has made specific averment regarding the failure on the part of the respondents to convert the unconcluded departmental proceeding into a proceeding under Rule 43B of the Bihar Pension Rules after his retirement, in Para 19 of the writ application. A very detailed counter affidavit has been filed but there is no specific reply to the statement made in Para 19 of the writ application. There is neither any denial or admission of such statement. In para 24 of the counter affidavit a general statement has been made with regard to statement made in Paragraphs 14 to 20 and Paragraphs 22 to 24 of the writ application, stating that all those have been replied in brief history of the case. In fact there is no averment so far statement made in para 19 of the writ application is concerned. In the given facts and circumstances, it can be considered as an admission on the part of the State that the departmental proceeding was never converted into a proceeding under Rule 43B of the Bihar Pension Rules. This being an admitted and apparent illegality, entire proceeding of the departmental enquiry is illegal and the order of 6 punishment awarded against the petitioner is also illegal and fit to be quashed. Petitioner has also taken plea of violation of rules of natural justice on this count that no intimation was ever given to him regarding the proceedings of the departmental enquiry. Several documents have been relied upon by the Inquiry Officer for coming to this conclusion that charges framed against the petitioner has been passed but none of those documents were ever supplied to him. Witnesses were not examined in his presence. He was not given any opportunity to cross-examine the witnesses. In a most illegal and arbitrary manner the departmental proceeding was allowed to continue and finally concluded, awarding severe punishment against the petitioner. Counsel appearing for the State is not in a position to controvert the submission made on behalf of the petitioner. However from the counter affidavit, there is complete denial regarding alleged violation of rule of natural justice. It has been stated that petitioner intentionally did not participate in the departmental proceeding. However, there is no specific averment that the representation filed by the 7 petitioner was either rejected, disposed off and communicated to the petitioner. There is no statement that on such rejection the petitioner was intimated about any date fixed in the departmental proceeding for his appearance and participation. There is no doubt that charges, for which departmental proceedings had been initiated against the petitioner, were very serious but simply seriousness of the charges will not be sufficient, for awarding punishment, unless it has been conducted in accordance with law, giving proper opportunity to the delinquent to defend himself. Only when charges are proved, in a proceeding conducted in accordance with law, the severest of the punishment can be awarded against the delinquent. Since the departmental proceeding was conducted exparte, without providing any opportunity to the petitioner to participate in it, it was completely in violation of the rule of natural justice. Departmental proceeding was conducted without observing the provision under Rule 43 B of the Pension Rules. Entire proceeding of the departmental proceeding and the order of punishment, in the facts and circumstances of the case are fit to be quashed. 8 The Appellate order has also been challenged by the petitioner on similar grounds alleging that the Appellate authority completely overlooked the illegalities in the order passed in the departmental proceeding. The Appellate authority without considering any of the grounds taken by the petitioner in the memo of appeal, dismissed the appeal, preferred by him. Accordingly, both the order i.e. orders contained in Memo no. 106 dated 10.2.2005 as well as order dated 22.9.2005 contained in Memo no. 2326 dated 28.9.2005 are quashed. The writ application stands allowed. A. Kumar ( Mridula Mishra, J.)