IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.41 of 2010 1. NARENDRA NATH MISHRA S/O LATE NILAMBAR MISHRA R/O VILL &P.O. GANDHWAR,P.S. SAKARI, DISTT-MADHUBANI,AT PRESENT RESIDING IN BIMLA TOWER FLAT NO.14, A HANUMANNAGAR, NEW PUNAICHAK, PATNA-23, AND OFFICE IN THE PRINCE CHAMBER TABLE NO.1 TO 2 IN FRONT OF ADVOCATE ASSOCIATION LIBRARY OF PATNA HIGH COURT……………………………………….Appellant Versus 1. THE STATE OF BIHAR 2. COMMANDANT GENERAL BIHAR HOME GUARDS H.Q.CHAJUBAGH, PATNA 3. DEPUTY COMMANDANT GENERAL BIHAR H.G.H.Q. CHAJUBAGH, PATNA 4. COMMANDANT BIHAR HOME GUARDS H.Q. CHAJUBAGH, PATNA 5. DISTRICT COMMANDANT BIHAR HOME GUARDS DHANBAD 6. COMMANDANT C.T.I. BIHTA 7. SECRETARY HOME (SPECIAL) BIHAR, PATNA 8. ACCOUNTANT GENERAL BIHAR, PATNA…………….Respondents ----------- 2. 11-01-2010 I.A. No. 171 of 2010 This application is for condonation of delay of 39 days. Having heard Mr. Satish Chandra Jha, learned counsel for the appellant and Mr. Prabhat Kumar Sinha, SC- 21 for the respondents, the delay in filing the appeal stands condoned and the I.A. is accordingly allowed. L.P.A. No.41 of 2010 As we have condoned the delay, we are inclined to take up the appeal for admission. In this intra court appeal there is challenge to the 2 order dated 18th of September, 2009 passed by learned Single Judge in CWJC No. 4849/2006 whereby he has declined to interfere with the imposition of punishment by the disciplinary authority wherein it had directed recovery of a sum of Rs.1400/- in fourteen installments. It is submitted by Mr. Jha, learned counsel for the appellant that the department could not have proceeded in the departmental proceeding and imposed the punishment in view of the order passed by this Court on an earlier occasion in CWJC No.5227/02. That apart, it is contended by him that no loss had been caused to the State Government and therefore the initiation of the proceeding was not warranted. Learned counsel for the State supported the order passed by the learned Single Judge. It is worth noting that the appellant was imposed with the punishment dated 13.7.1999 by the Deputy Commandant General, Bihar Home Guards which was affirmed by the appellate authority by order dated 24.11.2001. The punishment was imposed after due enquiry, for forfeiture of six months’ increment. The said order was assailed in 3 CWJC No.5227/02 wherein this Court placing reliance upon judgment of Hon’ble Supreme Court in the matter of Managing Director, ECIL Vs. B.Karunakar reported in AIR 1994 SC 1074, quashed the order of punishment and eventually directed as follows: “However, the matter is remitted back to the disciplinalry authority to proceed in the matter afresh, if so advised” It is submitted by Mr.Jha, learned counsel for the appellant that when this Court had quashed the order of punishment by that time the appellant was superannuated, hence the proceeding could not have been initiated against him in view of language employed in Rule 43 of Bihar Pension Rules, 1950. To appreciate the said submission, we may refer to Rule 43 in its entirety. On a perusal of aforesaid rule it appears that the said rule is conditioned by certain preconditions but the question that emanates for consideration is whether any of such conditions gets attracted to the case at hand. It is not in dispute that the proceeding was initiated when the appellant was in service. This Court had passed the order on the ground that there had been violation of principle of natural justice and the matter was remitted to be proceeded 4 afresh. It is contended by the learned counsel for the appellant that the said direction has to be understood to ensure that the proceeding be initiated afresh, if so advised. In our considered opinion the said order could not be so understood as submitted by learned counsel for the appellant. Learned Single Judge had remitted the matter to the disciplinary authority to proceed in the matter afresh and the term “afresh” as we are inclined to understand has to be in the contextual backdrop, i.e. from the stage the enquiry report was submitted. Since the order of punishment was quashed because the enquiry report was not furnished to the appellant hence the proceeding is relegated to that stage since doctrine of relegation gets attracted to the case in hand. In view of the aforesaid, the submission put forth by the learned counsel for the appellant that proceeding is barred by limitation for fresh proceeding mentioned in Rule 43 does not commend acceptance. It is not in dispute that the proceeding was initiated on the bedrock that the appellant had submitted T.A bills which were false and for amount beyond payable. In our considered opinion there is an allegation that excess amount 5 had been claimed through T.A bills. The learned Single Judge in the order impugned has averted to the relevant facts and there is no justification or reason to differ with the same. On the aforesaid analysis the contentions raised by the learned counsel for the appellant are found to have no substance and accordingly the appeal is dismissed but without any order as to costs. perwez (Dipak Misra, C.J.) (Shiva Kirti Singh, J.)