IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.314 of 2011 The State Of Bihar &Ors Versus Kedar Paswan & Anr ----------- 5 8-7-2011 Heard learned counsel for the appellant, learned counsel for the Accountant General and learned counsel appearing for the respondent- writ petitioner. The writ petitioner was Director of purchase and transport in the Road Construction Department, Govt. of Bihar during the period 27-1-1994 to 10-8-1994. On account of irregularities and illegalities alleged in respect of huge quantity of Bitumen, seven criminal cases against the writ petitioner and others were lodged. Such irregularities on a large scale came to be popularly known as `Bitumen Scam’. The writ petitioner was suspended during the period of actual custody from 11-1-2000 till some date in 2000 when he was granted bail. He was again placed under suspension under Rule 100 of the Bihar Service Code on 20th November, 2000. That order is available in the records of the proceeding books and show cause. The suspension was only on account of pendency of criminal cases against the writ petitioner. It did not show that the authority proposed to initiate disciplinary proceeding against the writ petitioner on any charges. Such order of suspension was quashed on 8-3-2005 by an order of this Court mainly on account of long period of suspension. After being reinstated the writ petitioner retired from service on 28th February, 2008. After seven months, on 30th September, 2008 a proceeding under Rule 43 (b)) of the Bihar Pension Rules ( hereinafter referred to as `the Rules’) was initiated for 2 charges relating to the Bitumen Scam. The charges in respect of petitioner were admittedly in respect of an incident which took place in the year 1994. The initiation of proceeding under the Bihar Pension Rules was challenged by the writ petitioner through a writ petition bearing C.W.J.C. No. 17299 of 2008 which has been allowed by the order under appeal dated 23-7-2010 after accepting the argument on behalf of the writ petitioner that proviso (a) (ii) of Rule 43 (b) of the Rules mandates that such a departmental proceedings can be initiated only for an incident which took place not more than four years before institution of such proceedings. The writ court did not accept the defence of the State that as per Explanation provided under Rule 43 of the Rules a departmental proceeding shall be deemed to have been instituted on the date the Govt. Servant has been placed under suspension from an earlier date. On behalf of appellant it has been submitted that the explanation to Rule 43 creates a fiction that although ordinarily the departmental proceeding is instituted when the charges are framed but if the Government Servant has been placed under suspension from an earlier date, the proceeding shall be deemed to have been instituted from such date. It has been submitted that explanation will also cover the case of the writ petitioner because he had been placed under suspension earlier on 11-1-2000 when he was in actual custody and then again under Rule 100 on account of criminal cases, on 20-11-2000. Proviso (a) (ii) is one of the safeguards provided to a retired 3 employee and prohibits institution of departmental proceedings under the Rules in respect of an incident which took place not more than four years from the date of institution of the proceeding and it has to be conducted in accordance with the procedure applicable to proceedings on which an order of dismissal, a major punishment can be awarded. In our view, the protection afforded to retired employees must be respected scrupulously unless the deeming clause contained in the Explanation leaves no option but to hold that the proceeding must be deemed to have been initiated from the date of suspension, I,e, from an earlier date. In the present case the Explanation cannot come into play for more than one reason. The suspension contemplated under Explanation must have nexus to the charges ultimately framed against the employee concerned and then only it may be possible to give benefit of such delay to the government on the ground that framing of charges do also take some time. If suspension order shows contemplated disciplinary proceeding, the benefit of delay from the date of suspension till the framing of charge is required to be given to the Government. In the present case the suspension of the writ petitioner was on two occasions and it will create an anomaly if two dates are accepted as the date when departmental proceeding shall be deemed to have been initiated against him. Further the suspension orders were not in contemplation of any departmental proceeding and did not have any nexus to the charges subsequently framed against the writ petitioner on account of proceedings initiated after his retirement. Hence the suspensions can not explain or cover the delay. 4 There may be a situation where the suspension order may not be in operation after the retirement of the concerned employee but that will not deprive the Government from claiming benefit of suspension. However, as indicated above, it must be evident that the government servant was placed under suspension in anticipation and preparation for a departmental proceeding. In the present case there is yet another reason in favour of the writ petitioner for not permitting a belated departmental proceeding . The incident took place in the year 1994 and the proceeding has been initiated in the year 2008 after a gap of about 14 years. The period of suspension was of less than five years and such period in our view cannot dilute the charge made by the writ petitioner that the proceeding under the Rules has been initiated after an unusual delay without any apparent reason and justification. Besides the technicalities in the present case the view taken by the writ court is substantially in accordance with the Rules providing protection to the retired employees. We find no merit in this appeal. It is accordingly, dismissed. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)