IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.237 of 2010 1. Krishna Mohan Singh S/O Late Sarzoo Singh R/O Vill Nagwa, P.O. Bahpura, P.S.Maner, Distt-Patna Versus 1. The State Of Bihar Through The Secretary, Co-Operative Society Government Of Bihar, Patna 2. The Registrar, Co- Operative Societies Govt. Of Bihar, Patna 3. The Joint Registrar, Co- Operative Societies Govt. Of Bihar,Patna 4. The Additional Registrar, Co-Operative Societices Patna Division, Govt. Of Bihar, Patna 5. The Assistant Registrar, Co Operative Societies Sasaram Circle ,Sasaram, Distt-Rohtas 6. The District Co- Operative Officer Rohtas At Sasaram 7. The Assistant Registrar Hilsa, Distt- Nalanda 8. The Assistant Registrar Arrah, Distt-Bhojpur 4/ 26/08/2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order of punishment dated 8.4.2009 in a departmental proceeding withholding 25% of his pension from the date of the order and that the period of unauthorized absence shall not be counted as on duty or be reckoned as pensionable service. It was contented that the departmental proceedings have been held ex parte. The petitioner has been denied the opportunity to defend himself. The notices for the proceedings were not sent at his correct address, village- Nagwa, P.O. Bahpura, P.S. Maner, District- Patna. The notice was sent at village Nagma, 2 Nahpura, Maner. The petitioner was on duty during the period of cooperative election evident from the duty chart and declaration certificate of the winning candidates signed by him. The petitioner retired on 1.2.2004. No formal orders converting the proceedings into one under Section-43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules) have been passed. The writ petition was filed on 22.12.2009 after serving two copies in the office of the Advocate General. The second copy was to facilitate the filing of counter affidavit by the respondents. More than one and a half years have gone by. An adjournment was granted on 22.6. 2010 specifically for the purpose, but to no avail. The Court can do no more than to express its extreme disappointment for the manner in which the respondents have for no justifiable reason failed to assist the Court in timely dispensation of justice. The allegations against the petitioner are for unauthorized absence from 7.6.2001 till 31.1.2004. The respondents contend that charges were framed against him on 23.9.2002 before his superannuation on 1.2.2004. Notices of the proceedings and the second show cause with the enquiry report were sent to him at his residential address by registered post which were all returned unserved. The petitioner has himself annexed 3 the paper publication dated 28.6.2010 as a mode of notice given to him. In no uncertain terms it states his name, parentage, his designation in the Cooperative Department and his place of posting. The aforesaid explicit recitals would leave no reasonable person fitting the description in doubt that it was referring to him. Whether the name of the village was Bahpura or Nahpura both at Maner is inconsequential in view of the petitioner being in possession of the paper communiqué. The respondents took every reasonable care by sending him notices by registered post which were returned unserved. They then resorted to paper publication on 26.7.2006 which caught the eye of the petitioner. He has chosen not to disclose the day he became aware of the same. The presumption shall therefore be that he became aware the same day or soon thereafter certainly long before 22.12.2009 when he filed the writ application. If thereafter he did not participate in the enquiry, it is he who took the risk. It is not open for him to now claim violation of principles of natural justice and denial of opportunity to contest. The Supreme Court in (2004) 6 SCC 299 (N.K. Prasada v. Govt. of India) has held : - “24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances 4 of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing……..” Whether the petitioner was on duty or not is primarily a question of fact for him to demonstrate. He denied himself that opportunity in the departmental proceeding voluntarily when his defence could have been considered and he could have led evidence. A deployment on election duty chart from 27.4.2002 to 28.4.2002 does not lead to a presumption of actually being on duty much less for the entire period of absence. The reliance on the declaration certificate after the election annexed to the writ application does not persuade the Court as it does not even bear the seal of the issuing authority. In any event, that explains his absence for two days only out of three years of unauthorized absence. In the entire writ petition there is no assertion by him that he was on duty through out from 7.6.2001 to 31.1.2004 discharging official works. The departmental proceedings are stated to have been initiated while he was in service. If that be so Rule-43(b) proviso itself contemplates conversion of such a proceeding. No formal orders to that effect are required 5 as held in (2006) 13 SCC 460 (State of U.P. v. Harihar Bholenath) : - “12. It is not in dispute that the respondent was placed under suspension before he reached his age of superannuation. A departmental proceeding was not only initiated against him, but an enquiry officer was also appointed. The order of suspension, however, remained stayed by a judicial order. But the same paled into insignificance once the employee reached the age of superannuation. By reason of the same, however, the legal fiction created in regard to the point of time when the enquiry proceeding would be deemed to have commenced was not effaced. 13. Thus, only because the enquiry proceeding was actually started after superannuation of the respondent, the same would not mean that the enquiry proceeding had not been initiated. The right to initiate proceedings which would include a right to continue the proceedings…” What is the ratio of a case depends on the factual background in light of which the ratio came to be laid down. The ratio cannot be deduced out of context, devoid of facts. In the judgment relied upon the enquiry report came to be submitted of exoneration. Nothing transpired thereafter. The petitioner was permitted to superannuate. The proceedings were then converted into one under Rule-43(b). The Court held that the respondents could not take advantage of their own conduct as they had more than enough time to 6 conclude the proceedings during the service tenure, but deliberately allowed it to lapse. The facts in the present case are entirely different. It has already been noticed hereinabove that the petitioner has not even denied the allegation of unauthorized absence in the entire writ application. The writ application is dismissed. KC ( Navin Sinha, J.)