IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10287 of 2010 1. Kusheshwar Prasad Singh S/O Late Gore Lal Singh R/O Tulsi Bhawan, Radha Devi Lane, Near Shiv Flour Mill, Moh-Mundichak, P.S. Kotwali, Distt-Bhagalpur Versus 1. The State Of Bihar Through The Commissioner -Cum-Secretary, Department Of Labour Resources Government Of Bihar, Patna 2. The Labour Commissioner, Department Of Labour Resources Government Of Bihar, Patna 3. The Joint Secretary, Labour Resources Government Of Bihar, Patna 4. The Deputy Secretary-Cum-The Presenting Officer, Department Of Labour Resources Government Of Bihar, Patna 5. The Deputy Labour Commissioner Muzaffarpur ----------- For the Petitioner:- Mr. Purushattam Kr. Jha, Adv. For the State:- Kumar Ravish, Adv. ------------ 3. 03.11.2011 Heard learned counsel for the petitioner and the State. The petitioner has superannuated on 31.8.2007, and is aggrieved by the order dated 6.5.2010 purporting to continue the departmental proceeding stated to have been initiated during his service tenure by a charge memo dated 23.12.2006 under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the „Pension Rules‟) Learned counsel for the petitioner submits that the charge memo dated 23.12.2006 was never served upon him while in service, but was so done after superannuation on 11.5.2010. It relates to alleged occurrences of 19.3.1982. The issue being more than four years old from the date of superannuation the proceedings are not permissible 2 under Rule 43(b) of the Pension Rules. Counsel for the State contended that the charges were framed on 23.12.2006 while the petitioner was in service. The proceedings having the commenced in service, the bar of four years under Rule 43(b) of the Pension Rules shall not apply. It is contended that what is crucial, is the framing of the charge during service and not the actual service of the charge. It is fairly acknowledged that there is no material on record to demonstrate that the charge stated to have been framed on 23.12.2006 was put in transmission for service on the petitioner while he was in service. In fact, the materials on record demonstrate that the memo of charge was first put into transmission after his superannuation on 11.5.2010. The reliance by the respondents on (2001) 9 SCC 171 (State of M.P. Vs. Onkar Chand Sharma) that the departmental proceedings can be said to have been initiated on the day that the charge sheet was prepared and signed by the competent authority, an indisputable proposition, is of no help to them. If they frame the charges and then decide to keep it within their lockers, allowing it to see the light of the day for the first time after his superannuation, the 3 answerability lies with the respondents. It is for them to explain why if the charges had been framed on 23.12.2006, it was not put into transmission. Had it been put into transmission for communication to the petitioner while in service matters may have been entirely different and mere delayed communication may not have been beneficial to the petitioner. The proposition that the crucial date is the framing of the charge cannot be extended as an absolute proposition to the limits of permitting the respondents to claim having framed charges at an earlier point of time when their own conduct does not appear commensurate with the claim. It is not the case of the respondents that the charges were framed on 23.12.2006 and issued before the petitioner‟s superannuation. On the contrary the counter affidavit in no uncertain terms acknowledges its issuance only on 11.5.2010, after superannuation. A charge allegedly framed, never put into transmission before the crucial date shall tantamount to no framing of charge at all. The theory that the date of framing of charge is the crucial date evolves in the background of the thinking that otherwise it may facilitate a delinquent to avoid service of the charge sheet and then claim that no charges were framed. 4 But if the charges were never put into transmission, the occasion for the respondents to make any such claim does not arise. To uphold the contention of the respondents may facilitate a back dated claim for having framed charges. Rule 17(4) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 reads as follows :- “17(4). The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.” The Rule, even if it is to be read down as excluding actual service of the charges to prevent successful evasion of service, nonetheless issuance of the charges is a necessary concomitant to the initiation of the proceeding. A departmental proceeding has been held to have been initiated when charges are framed and issued. The actual service of the charge upon the 5 delinquent is not a precondition to the commencement of the proceedings. Thus where the charge is claimed to have been framed but never came to be issued it cannot be held that the departmental proceedings had commenced. In (1993) 3 SCC 196 (Delhi Development Authority v. H.C. Khurana):- “9…..The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings”. 14. „Issue‟ of the charge-sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge- sheet and taking of the necessary action to despatch the charge- sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge-sheet on the employee. 15. The meaning of the word „issued‟, on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used. Meanings of the word „issue‟ given in the Shorter Oxford English Dictionary include : „to give exit to; to send forth, or allow to pass out; to let 6 out; ... to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation‟. The issue of a charge-sheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement.” Similar view has been taken in (1994) 4 SCC 468 ( State of M.P. v. L.P. Tiwari) : - “4…… It is thereby clear that service of the article of charge is not a condition precedent. Putting it in transmission within the period is sufficient compliance. No doubt every endeavour has to be made to have the charge-sheet served on the delinquent, but the delinquent who evades receipt of it, cannot be allowed to take advantage of such evasion.” In (2007) 9 SCC 625 (Coal India Ltd. v. Saroj Kumar Mishra) it has been held : - “18. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.” The proposition laid down in H.C. Khurana (supra) has been reiterated in (2007) 6 SCC 694 (UCO Bank v. Rajinder Lal Capoor) : - “21……The departmental 7 proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued (see Union of India v. K.V. Jankiraman). This aspect of the matter has also been considered by this Court recently in Coal India Ltd. v. Saroj Kumar Mishra wherein it was held that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto…...” The issuance of the charge sheet for the first time upon the petitioner on 11.5.2010 with regard to an occurrence as far back as 19.3.1982 is clearly hit by the bar of Rule 43(b) of the Pension Rules, as the charges relate to an event over four years from the date of the charge. The order dated 6.5.2010/11.5.2010 is accordingly quashed. The application is accordingly allowed. P. Kumar ( Navin Sinha, J.)