IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.843 of 2006 KISHORI PRASANNA SINHA@ SINGH @Singh S/o- Late Nakhidi Singh retired Headmaster of High School Garaul resident of Chhoti Marai P.S. Hajipur District Vaishali (at Hajipur). Versus 1. THE STATE OF BIHAR 2. The Director (Secondary Education)Government of Bihar, Patna. 3. The District Education Officer Vaishali at Hazipur ----------- 10 30.04.2010 Heard Mr. Amresh Kumar Singh, learned counsel for the petitioner and Mr. Manoj Kumar Jha, learned A.C. to G.A.1 for the State. The petitioner is aggrieved by the memo of charge bearing No. 3658 dated 23.11.2005(Annexure-8) whereby a proceeding purportedly under Rule 43(b) of the Bihar Pension Rules(hereinafter referred to as the ‘Rule’) has been initiated against the petitioner for his alleged involvement in defalcation of Rs. 221 lacs giving rise to a criminal case arising from Goraul P.S. Case No. 21/97 for the offences punishable under Sections 467,468, 469, 471, 408, 409 and 120B of the Indian Penal Code. Brief summary of facts is that the petitioner after being appointed as Assistant Teacher was promoted as Headmaster and was posted at High School, Goraul in the District 2 of Vaishali where he joined in July, 1995 and continued to function as Headmaster of the said school until his date of superannuation on 31.1.1997. Prior to the joining of the petitioner in the said school an Assistant Teacher of the said school namely Paras Nath Singh was officiating as an Incharge Headmaster and who continued until the joining of the present petitioner. On account of the certain financial irregularities committed during the tenure of the predecessor, Incharge Headmaster namely Paras Nath Singh, no person was willing to take charge from the petitioner upon his superannuation on 31.1.1997. From a letter of the District Education Officer dated 28.6.1997 (Annexure-1) it appears that the petitioner had complained regarding absence of any successor for taking over the charge from him and whereupon the District Education Officer directed the Incharge Headmaster, Goraul to assume the charge from the petitioner vide Annexure-1. Pursuant to the directives aforesaid the charge was handed over by the petitioner and the report thereof is present at Annexure-2 series. The assumption of charge is 3 duly substantiated by the charge report present at Annexure-2 series which is accompanied by the list of materials/documents. By reason of certain financial irregularities found in the school in question, the F.I.R. came to be instituted giving rise to Goraul P.S. Case No. 42 of 1997 on the basis of the report of the District Education Officer dated 16.4.1997 which forms the basis of the F.I.R. The Incharge Headmaster who was holding the post prior to the assumption of charge by the present petitioner namely, Paras Nath Singh, the dealing Clerk, Sri Shashi Bhushan as also present, the present petitioner were added as the accused persons. The F.I.R. came to be instituted on 18.4.1997 i.e. after the retirement of the petitioner on 31.1.1997. Although the F.I.R. was instituted on 18.4.1997 after the retirement of the petitioner but no order withholding the retiral benefits or any part thereof as envisaged under Rule 43(b) of the rules was passed by the authorities nor any proceeding was initiated by the respondents. The institution of the F.I.R. does not automatically results in commencement of a judicial proceeding until such time a 4 chargesheet is submitted against the employee concerned. Admittedly, as on the date of retirement neither there was a departmental proceeding pending against the petitioner nor any judicial proceeding existed except that an F.I.R. came to be instituted after a month. The initiation of a departmental proceeding or judicial proceeding is subject to fulfillment of certain pre-requisites as provided under Rules. Since after the institution of the F.I.R. nothing progressed in the matter and it is after a lapse of almost eight years that the impugned memo of charge has been issued, contained in memo No. 3658 dated 23.11.2005, which casually refers to cognizance being taken in the criminal case. It is for the first time that a formal proceeding purportedly under Rule 43(b) of the Rules was sought to be initiated against the petitioner after more than eight years of his retirement. That the proceeding purportedly under Rule 43(b) is in the teeth of the pre-conditions to the rules, would not detain this Court in arriving to a conclusion. The bar imposed under the Rule of four years is grossly violated is to say the least. Whether 5 or not any chargesheet was submitted in the criminal case against the petitioner nor the date of the order taking cognizance in the criminal case, can be found in the records of the proceedings. Having regard to the stipulations of Rule 43(b) and taking into consideration that proceedings in question have been initiated after eight years of the retirement of the petitioner, it requires no reference to any judicial pronouncement to hold that the order contained in Annexure-8 is illegal and contrary to the stipulations of Rule 43(b) and the same is set aside. The writ petition is allowed. Bibhash (Jyoti Saran, J.)