IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1535 of 2001 UMA SHANKAR PRASAD Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr R.K.Rajan, Advocate For the State : M/s Kameshwar Pd. Gupta, SC V & Binod Kumar, JC to SC V ----------- 4 23.9.2008 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner was temporary clerk in Registration office, Jehanabad. On the charge that he had indulged in fraudulent and unauthorized entry into certain documents and on other charge of unauthorized absence, he was subjected to a disciplinary proceeding and dismissed from service. His first writ petition was disposed of with a direction to the appellate authority to dispose of his appeal. The appellate authority confirmed the order of dismissal of 1986. The appellate order and the order of dismissal were again challenged through a writ petition of the year 1990 and this Court by judgment contained in Annexure-3 dated 7.3.1994 remanded the matter back to the appellate authority to reconsider petitioner’s second show cause notice and came to a fresh finding regarding his guilt. The appellate authority was also directed to decide about punishment of petitioner in respect of balance salary for the 2 period of suspension till the date of his superannuation. By Annexure-3, the original order of dismissal was also quashed and hence, the appellate authority to whom the matter was remanded, was directed to pass order in respect of petitioner’s guilt only in terms of Rule 43(b) of Bihar Pension Rules under which disciplinary action is permissible against a superannuated employee also. By the impugned order the concerned authority has again given a finding against the petitioner holding him guilty of the charge. In terms of Rule 97 of the Bihar Service Code he has held that petitioner is not entitled to anything beyond subsistence allowance and by way of punishment as permissible under Rule 43(b) of Bihar Pension Rules it has been held that petitioner is not entitled to any pensionary benefits because he has been found guilty of grave misconduct. As a special concession since petitioner has received 75 per cent of his pension till the passing of the impugned order dated 6.3.1997 (Annexure-6), he was allowed to retain that 75 per cent of pension which he had already received. On behalf of the petitioner it has been submitted that since no subsistence allowance was actually paid to the petitioner during suspension hence the impugned order of punishment is illegal. This plea was not taken earlier and not 3 considered in any of the orders passed by this Court, much after his crossing the age of superannuation. No prejudice has been shown on account of non-payment of subsistence allowance as petitioner appears to have taken part in the disciplinary proceeding and even his second show cause was considered by the authorities. Hence, this Court finds no merit in this submission. It has been next submitted that two other employees were also subjected to different departmental proceedings on similar charge but they were exonerated and, therefore, petitioner should also be exonerated of the charge. In support of this submission reliance has been placed upon two judgments of the Supreme Court- (2006) 6 SCC 549, Anand Regional Cooperative Oil Seed Growers’ Union Ltd. V. Shailesh Kumar Harshadbhai Shah and (1998) 2 SCC 407, Director General of Police & others v. G.Dasayan. In both the aforesaid judgments the Supreme Court has taken the view that in similar circumstances if more than one employee is found guilty of same charge, the punishment should be similar in nature. That principle does not help the petitioner as the other two persons were not found guilty of the charge leveled against them. It has been lastly submitted that pension once 4 authorized to an employee cannot be withdrawn during his life time. In support of this submission some judgments were cited but they need not be noticed because the proposition is well accepted. In the present case pension was never sanctioned in favour of the petitioner and he was given only 75 per cent of the pension by way of provisional arrangement during the pendency of the disciplinary proceeding which has continued even under orders of this Court. Hence, the disciplinary authority at the time of passing of final orders was well within legal limits to hold that petitioner will not be entitled to any pension as he has been found guilty of grave misconduct. In the facts of the case, this Court finds no good ground to interfere with the impugned order. The writ petition is dismissed. (Shiva Kirti Singh, J.) sk