CIVIL WRIT JURISDICTION CASE No.13146 OF 2006 (In the matter of an application under Article 226 of the Constitution of India.) Sheo Shankar Pathak S/o- Late Chunchun Pathak resident of Mohala Gosai Tola P.S. Patliputra District –Patna. ----------------------- PETITIONER Versus 1. The State of Bihar. 2. Secretary Road Construction Department Govt. of Bihar, Patna. 3. Additional Secretary Road Construction Department Govt. of Bihar, Patna. 4. Joint Secretary, Road Construction Department Govt. of Bihar, Patna. 5. Accountant General, Bihar, Patna. -------------------- RESPONDENTS --------- For the Petitioner :- Mr. Ashok Kumar, Advocate. For the State :- Mr. Prabhat Kumar Singh, S.C.12 For the Accountant General:- Mr. Ranjan Kumar, Advocate P R E S E N T THE HON'BLE MR. JUSTICE JYOTI SARAN Jyoti Saran, J. I.A.No.7546 OF 2008 The interlocutory application has been filed for amendment of the relief and prayer portion of the writ petition in view of the subsequent developments. An order of punishment in purported exercise of power under Rule 43 (b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the ‘Rules’) was passed on 8.1.2008, 2 which has been brought on the record of the proceedings by way of Annexure-6 to the supplementary affidavit, as well as Annexure -7 A to the interlocutory application and is sought to be challenged by way of the amendment prayed in the interlocutory application. The Interlocutory Application is allowed in terms of the prayer made therein. Heard learned counsel for the parties. Summary of facts of the case is that the petitioner superannuated while holding the post of Assistant Engineer, Department of Road Construction, Government of Bihar, Patna with effect from 30.9.2002. Although the other post retiral benefits, as found admissible to the petitioner was paid to him but 10% of pension, the entire gratuity and the leave encashment was withheld on pretext of departmental proceedings initiated while the petitioner was in service and continued since after his retirement by conversion thereof to a proceeding under Rule 43(b) of the rules . The said situation led to the filing of the writ petition under consideration. During the pendency of the proceedings the balance 10% 3 pension has been released but an amount of Rs. 3.30 lacs has been recovered from the gratuity and the leave encashment admissible to the petitioner under the impugned order dated 8.1.2008 (Annexure-6) . It so appears that initially vide notification no. 974 (s) contained in memo No. 975 dated 15.2.1997 an order of recovery of Rs. 3.30 lacs was passed against the petitioner. The petitioner challenged the said order through CWJC No. 5726/1997 and which was allowed. The order of recovery was set aside and liberty was granted to the respondents to proceed in accordance with law. The respondents, acting on the liberty aforesaid, vide resolution bearing memo no. 3150 (S) dated 21.5.2001, initiated a departmental proceedings under Rule 55 of the Civil Services (C.C. and A) Rules, 1930 (hereinafter referred to as the Classification Rules’). A memo of charge was served on the petitioner and upon conclusion of the proceedings the Enquiry Officer submitted his report on 27.7.2002. (Annexure-1). None of the charges was found proved against the petitioner. Before any order could be passed in the proceedings the petitioner superannuated 4 on 30.9.2002. Upon submission of the enquiry report (Annexure-1) the petitioner was served with a second show cause notice of proposed punishment dated 28.1.2003 (Annexure-2). The petitioner filed his reply to the second show cause notice on 7.2.2003 (Annexure-3) clarifying the position and praying for exoneration from the charges and for dropping the proceedings in the light of the findings given by the Enquiry Officer in his report. It is at this stage that an order was passed bearing memo no. 7546 (S) dated 6.9.2003 converting the departmental proceeding under Rule 43 (b) of the rules. As already indicated above, during pendency of the present proceedings the disciplinary authority upon purported consideration of the reply (Annexure- 3), has passed the order of penalty directing recovery of Rs. 3.30 lacs from the pending retiral dues admissible to the petitioner and which has been annexed as Annexure-6 and is also sought to be challenged in the present proceedings, which prayer of the petitioner has since been allowed. Another development that took place in the meanwhile is that the BPSC declined to give 5 consent for continuation of the proceedings and which order has also been placed on the record of the proceedings by way of Annexure-6/A . Although the memo of charges has not been brought on record of the proceedings but the contents thereof have been reproduced in the enquiry report placed at Annexure-1. Learned counsel for the petitioner with reference to the charges set out against the petitioner, submits that none of the charges in fact indicts the petitioner either of grave misconduct or of causing pecuniary loss to the Government. He submits that except charging the petitioner of not following the due procedure and of disregarding the directions of senior officer as also of having casual approach, no charge of grave misconduct has been set out against the petitioner. He submits that the charges are of such nature which may have resulted in a punishment as provided under the Classification Rules but did not fulfil the preconditions for continuation of the proceedings under Rule 43(b) of the rules. He submits that the Enquiry Officer performing a quasi judicial function, after examination of the oral and documentary 6 evidence, had arrived at a definite finding of the charges not being proved against the petitioner. He submits that the disciplinary authority without indicating any notes of disagreement to the findings of the Enquiry Officer, has merely reiterated the charges in the second show cause notice. He submits that the premeditated intention and non application of mind by the disciplinary authority, is evidenced from the fact that even while the petitioner again clarified the matter with the support of the findings given by the Enquiry Officer and prayed for dropping the proceeding, the disciplinary authority, in a mechanical manner has passed the impugned order of punishment. He thus submits that the impugned order is not sustainable for reasons; that there is no notes of disagreement evinced by the disciplinary authority; that no reasons have been assigned for rejecting the findings of the Enquiry Officer or the explanation given by the petitioner and/or the materials relied upon for reaching the conclusion. He submits that even where the charges do not allege any embezzlement, misappropriation or causing pecuniary loss by the petitioner, an order of 7 recovery has been passed. He further submits that the opinion of the enquiry officer has also found support from the BPSC who have declined to give consent. He submits that the conversion of the proceedings itself is not proper for the reason that the proceeding relates to an event of 1995-96 i.e. more than four years from the date, the order of conversion was issued. Learned counsel for the petitioner in support of his contention that the impugned order in absence of notes of disagreement by the disciplinary authority, is not sustainable, referred to the Supreme Court judgment passed in the case of Kunj Bihari Mishra reported in 1998(7) SCC 84. On the issue of invalidity of the order of conversion of the proceedings to a proceeding under Rule 43(b), learned counsel refers to a decision reported in 2002 (4)PLJR 80 (SC) (Shyam Sunder Prasad versus State). Mr. Prabhat Kumar Singh learned counsel representing the State supported the impugned action and the orders under challenge. In response to the issue raised by the petitioner regarding invalidity of the order converting the proceedings under Rule 43 (b) proceeding 8 vide Annexure-4, he submits that the said order was not required to be passed in context of a proceeding which had been initiated prior to the retirement of the employee in question. He submits that the bar of four years is only in relation to a proceeding which was not initiated prior to retirement. He submits that the position has been clarified under the Full Bench judgment of this Court in the case of Shambhu Saran versus State reported in 2000(1) PLJR 665 (F.B). He also referred to a Division Bench judgment reported in 2000 (4)PLJR 459 (State of Bihar versus Bipin Bihari Mishra). He submits that as it is a case of recovery which is a minor penalty under the Classification Rules, hence the issue could have been decided on the basis of mere consideration of representation, in terms of Rule 55 (A) of the Classification Rules and that no full-fledged proceeding as provided under Rule 55 thereof, was required to be followed. He with reference to the charges set out against the petitioner, as reproduced in the enquiry report, submits that undoubtedly the petitioner was charged with a role which ultimately resulted in release of 400 M.T of 9 Bitumen in favour of strangers. He submits that there was a proper procedure to be followed for release of bitumen, under which upon orders issued by the appropriate authority for release, being the Superintending Engineer on the requisition placed by the Executive Engineer, the release had to be effected through the Junior Engineer after verification of the release orders. He submits that the petitioner had by-passed this procedure as well as the Junior Engineer concerned and thus caused lifting of the bitumen in question. He submits that the indisciplined and casual approach of the petitioner led to pecuniary loss to the Government and which has since been recovered under the impugned order dated 8.1.2008 as contained in Annexure-A which is also Annexure-6 to the supplementary affidavit. He next submits that the petitioner having responded to the second show cause notice without raising any objections as to the absence of the notes of disagreement, he is estopped from raising the said issue. He further submits that the Disciplinary Authority after considering the enquiry report and the explanation given by the petitioner to the 10 second show cause reply, has passed a reasoned order and which contains no infirmity. He thus submits that the order impugned requires no interference and the petitioner being amongst the persons responsible for illegal lifting of the bitumen to the tune of 400 M.T., he deserves no consideration and the writ petition is fit to be dismissed. Learned counsel for the Accountant General submits that authorizations have been issued in tune with the sanction orders passed by the appropriate authorities of the State Government. I have heard learned counsel appearing on behalf of the respective parties and have perused the materials on record of the proceedings. Undoubtedly, the article of charges as reproduced in the enquiry report, in the least alleges the petitioner of any favouritism, embezzlement/ misappropriation or of causing pecuniary loss to the Government. There are three charges set out against the petitioner. Charge no.1, contains an allegation of having by passed the procedure and also the Junior Engineer in the matter of release of 11 bitumen in favour of strangers. Charge nos.2 and 3 alleged indiscipline and carelessness against the petitioner. The Charge no.1 itself takes notice of the fact that appropriate orders sanctioning and lifting of bitumen was issued by the Superintending Engineer on the request made by the Executive Engineer and which orders were forwarded by this petitioner for implementation thereof. During the course of proceedings the petitioner had submitted that the order for release was passed by him on the request of Sri Birendra Narain Kunwar, Junior Engineer, Kesharia Branch, Road Division, Motihari with instructions to release the truck only after return of the Junior Engineer, Sri Satyabrat Prasad Singh who had gone to some other place on departmental duty. He also submitted that the authorization issued by the Executive Engineer, Motihari Road Division was signed by Sri Kunwar and counter signed by the Executive Engineer. The Enquiry Officer noticed that the explanation given by the Petitioner was not controverted by the Presenting Officer. It is in this background that the Enquiry Officer had held that there was no by passing of the authority of the 12 Junior Engineer by the writ petitioner and that the charges had not been proved. Even the disciplinary authority while issuing the second show cause notice of proposed penalty has simply charged the petitioner of having a suspicious role in the transaction. Law is well settled that suspicion has no role to play in a departmental proceeding and punishment cannot be imposed on the basis of mere suspicion. Reference in this regard is made to the judgment reported in 2009 (2) SCC 570 (Roop Singh Negi versus Punjab National Bank, paragraph 23) and 1999 (7) SCC 409(Z.B. Nagarkar versus Union) (paragraph 42). That the disciplinary authority has merely parroted the article of charges in the second show cause notice without mentioning the notes of disagreement to the findings of the Enquiry Officer, is manifest from the notice itself. The situation aforesaid finds repetition in the order of penalty, which again is sans any reasons and without dealing or rejecting the explanation advanced by the petitioner and despite taking note of the opinion expressed by the BPSC in refusing to give consent for 13 continuation of the proceedings in view of the Enquiry Officer’s report. I was rather surprised to be informed by the learned counsel appearing on behalf of the State that despite there being allegation of illegal lifting of 400 M.T. of bitumen giving rise to the impugned proceedings, no criminal case was initiated by the respondent authorities, in this connection. Although the position with regard to requirement of an order of conversion of a proceedings initiated prior to retirement, to a proceedings under 43 (b) stands settled under the Full Bench judgment (supra) but the same does gain importance in a case like the present, where neither there is any charge of grave misconduct nor there is any specific charge of embezzlement, misappropriation or the like leading to pecuniary loss to the Government. Perhaps it is for this reason that BPSC did not choose to grant consent for conversion of the proceedings in view of the Enquiry Officer’s report. Even the disciplinary authority did not find a clear case against the petitioner rather has proceeded to impose penalty by simply finding the role of the 14 petitioner as being suspicious in the transaction. The Full Bench (supra) in no uncertain terms has held that a proceeding under the pension rules is completely distinct to a proceeding under the Classification Rules and unless the prerequisites as spelt out in Rule 43(b) as satisfied, a proceeding initiated against a delinquent cannot continue after retirement nor can be converted to a Rule 43 (b) proceedings. Having considered the articles of charges, as noted down in the enquiry report and the findings of the enquiry officer placed at Annexure-1, the second show cause notice placed at Annexure-2, the reply given by the petitioner placed at Annexure-3 and the reasons assigned by the Enquiry officer for exonerating the petitioner of the charges coupled with the opinion of the BPSC placed at Annexure-6/A , I am more than convinced that not only the continuation of the departmental proceedings after retirement of the petitioner and conversion thereof to a proceeding under Rule 43(b), was clearly beyond the scope and intent of the said rule rather even assuming that the 15 said proceeding would fall within the parameters of Rule 43(b) proceedings, in view of the clear findings given by the Enquiry Officer which has neither been disagreed by the disciplinary authority nor has been met or dealt in the impugned order dated 8.1.2008 directing recovery, the same cannot sustained. The order impugned is an order manifestly reflecting complete non application of mind. That no criminal case was instituted by the authorities for the alleged lifting of bitumen by strangers, further creates gaping holes in the case of the respondents and which cannot be rectified at this stage. In my opinion, in absence of any direct charge of misappropriation of embezzlement or the like against the petitioner, causing pecuniary loss to the Government, a mere charge of alleged disobedience or of a procedural lapse by the petitioner cannot entail recovery proceedings. The impugned order of the penalty as contained in Annexure-6 has been passed in a most perfunctory manner and in the accompanying circumstances, is manifestly perverse and cannot be sustained and is thus set aside. As a consequence thereof, the petitioner would be 16 entitled to refund of the amount of Rs. 3.30 lacs recovered from his pending retiral dues and to any other admissible dues that have yet remained pending. The writ petition is allowed but in the circumstances there shall be no order as to costs. Patna high Court/ The 12th May,2010/ Bibhash/A.F.R. ( Jyoti Saran, J.)