IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6861 of 2011 Subhas Chandra Jha son of Late Umesh Chandra Jha, resident of C/o Sri Kailash Chandra Jha, Road No.1/30, Shiv Puri, P.S. Shashtri Nagar, Patna …Petitioner Versus 1. The Bihar State Financial Corporation, Frazer Road, Patna through its Managing Director 2. Managing Director, Bihar State Financial Corporation, Frazer Road, Patna …Respondents For the petitioner :Mr. Manik Vedsen :Mr.Subhash Chandra Bose For the Respondent: Mr.V.V.Giri, Sr. Advocate :Mr. Raju Giri ----------- 04. 05.09.2011 Heard learned counsel for the petitioner and learned counsel for the Respondent-Bihar State Financial Corporation (for short „the Corporation‟). Petitioner prays for issuance of appropriate writ/order to quash the office order as contained in memo no. 2358 dated 25.03.2011 passed by the Managing Director of the Corporation (Annexure-9), whereby a de novo enquiry is sought to be initiated against the petitioner for which the conducting officer was appointed. A further prayer has been made for a direction upon the respondents to pay the petitioner the interest @ 18% per annum on the amount of arrears of salary and consequential benefits/dues payable to the petitioner in terms of the order dated 26.03.2008 passed in CWJC No. 13529 of 2005. Learned counsel for the petitioner submits that for non-compliance of the order dated 26.03.2005 passed in 2 aforesaid CWJC No. 13529 of 2005, petitioner has already filed a contempt application being MJC No. 415/09 which is pending consideration in this Court and, as such, he would not press the second relief prayed for in the present writ application which relates to payment of interest on the admissible dues payable to the petitioner pursuant to the order passed in the writ petition on 26.03.2008. Back ground facts leading to the present case are as follows: Petitioner was serving the Corporation when by order dated 22.08.2001 he was afflicted with punishment of dismissal from service. Aggrieved thereat, he filed appeal which was also considered and rejected by order dated 6.09.2005. Both the said orders were impugned by the petitioner in CWJC No. 13529 of 2005. On hearing both sides, this Court by a proceeding dated 26.03.2008 (Annexure-1) allowed the writ petition. Paragraph 12 of the said order reads as under: “Considering the decisions cited by the petitioner and the facts of the present case, it can not be held that in the instant case there has been a fair enquiry against the petitioner. In absence of a fair inquiry the order of dismissal was passed which has been affirmed by the appellate Court. In this view the enquiry report submitted by the conducting officer the order passed by the disciplinary authority as well as the appellate order are quashed. Petitioner is entitled for all consequential relief, including arrears of salary. In case petitioner has not reached the age of superannuation, he should be reinstated. Petitioner if has already reached age of superannuation, he is entitled for pensioner benefits, as per rule.” 3 Aggrieved by the aforesaid order, a writ appeal was preferred 132 days beyond the period prescribed for filing such appeal. A Division Bench of this Court by a proceeding dated 16.02.2010, disposed of the said appeal whereby no substantive relief was granted to the appellants (Respondent-Corporation). Paragraphs 9 and 10 of the aforesaid order read as under: “At this juncture, it is apposite to note similar orders were passed in C.W.J.C. no.1718 of 2006 which was challenged in L.P.A. No.475 of 2008 (Bihar State Financial Corporation & ors Vs. Jai Prakash Sinha) and the Division Bench by order dated 04.02.2009 after referring to paragraph 12 of the impugned order therein while declining to interfere with the impugned order had passed the following order:- “The learned Single Judge, while setting aside the order of dismissal had not stopped the appellants from proceeding with the enquiry denovo and in that situation, we are of the opinion that nothing prevents the appellants to proceed against the respondent denovo in accordance with law.” In our considered opinion, the view expressed in Jai Prakash Sinha (supra) shall apply on all fours to the case at hand and, accordingly, with the said observation, the appeal stands disposed of. There shall be no order as to costs.” Unrelenting respondents thereafter approached the Apex Court by filing special leave petition which was heard and dismissed in limine by a proceeding dated 07.07.2010 (Annexure-8). Petitioner, in the meanwhile, on attaining the age of superannuation retired from the service of the Corporation with effect from 31.07.2009. Approximately nine months thereafter, the respondents came out with office order dated 23.03.2011 (Annexure-9) whereby they decided to initiate the departmental enquiry de novo. The said order is made impugned 4 in the present writ petition. A counter affidavit has been field on behalf of the respondents which is on record. Learned counsel for the petitioner while assailing the aforesaid action of the respondents submits that there is no rule-provision enabling the Respondent-Corporation to initiate an enquiry de novo and/or continue with pending departmental proceeding. It is contended that services of the employees of the Corporation, like the petitioner, are non-pensionary. In absence of any provision enabling the Respondent-Corporation to continue with the pending proceeding, the respondents were wholly unjustified in passing the impugned order referring to the observation made by this Court (Annexure-3). In this context, learned counsel relied upon a Division Bench judgment of the Apex Court in the case of Bhagirathi Jena vs. Board of Directors, O.S.F.C. & Ors. since reported in 1999 3 SCC 666. Particular reliance has been placed on paragraphs 6 and 7 thereof which read as under: “It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation. In view of absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellate and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had 5 retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” It is contended that rules/provisions of the Orissa Financial State Corporation are the same or in pari material with the rule-provision of the Corporation. Learned counsel further referred to the judgment of this Court rendered in CWJC No. 11476 of 1998 (Annexure-10) whereby similar view has been taken. Relevant portion of the said judgment in penultimate paragraph thereof is quoted hereinbelow: “Thus, in absence of any Rule authorising and/or vesting power in the Managing Director to take punitive action after retirement of the petitioner, the impugned order, contained in Annexure-7 cannot be sustained.” Per contra, learned counsel for the Respondent- Corporation states that impugned action has been taken in view of liberty granted by this Court while disposing of the writ appeal as contained in Annexure-3. Having heard the parties and on perusal of the materials on record, it appears that the petitioner was allowed to superannuate in the year 2009. The respondents have not placed any rule-provision to show that such departmental proceeding can be initiated and/or continued after the delinquent is superannuated from services of the Corporation and relationship of master and servant stands severed. This Court as well as the 6 Hon‟ble Supreme Court in facts situation akin to this case, have taken a view that in absence of rule-provision permitting such continuance of the proceeding no order initiating proceeding can be passed. Mr. Giri, learned counsel for the Respondent- Corporation has only submitted that impugned action has been taken in the light of the observation/liberty granted by this court. Any such liberty has to be in accord with the rule-provisions. If the relevant regulations/service conditions permit continuance of such proceeding, then only the respondents could have initiated a de novo enquiry against the petitioner. I have already noticed that no such rule-provision has been brought to the notice of the Court. On the contrary, a learned Single Judge of this Court has already held dealing with the case of the Corporation in question that after superannuation/retirement, the Corporation cannot proceed and/or continue with the pending departmental enquiry. The Hon‟ble Supreme Court having noticed the relevant regulations has also held to that effect. In view of the aforesaid facts and circumstances, this Court is persuaded to quash the order dated 25.03.2011 as contained in Annexure-9. I order accordingly. There shall be no order as to costs. hr ( Kishore K. Mandal )