PATNA, India, July 30 -- Patna High Court issued the following judgment on July 14:
Heard learned counsel for the petitioner and learned counsel for the State.
2. The present writ petition has been filed for quashing of the order dated 04.11.2013 contained in Memo No.5438 passed by the Respondent no.2 (annexed as Annexure11), by which withholding of 50% pension and entire gratuity of the petitioner has been forfeited.
3. Learned counsel for the petitioner submits that the order impugned is absolutely illegal and in gross violation of Rule 43(b) of the Bihar Pension Rules, 1950. Counsel submits that the Annexure-10 is the letter contained in Memo no.1486 dated 19.03.2012 about which the entry has been made in the final order also. Counsel submits that the said letter contained in Memo no.1486 dated 19.03.2012 is itself bad in law and not sustainable and since, Annexure-10 i.e. initiation of proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 is itself bad in law, therefore, the final order which is annexed as Annexure11 contained in Memo No.5438 dated 04.11.2013 is also bad in law and petitioner is entitled for all his pension and retiral dues including the gratuity etc. Counsel submits that admittedly, the petitioner was retired from the service on 31.10.2010 and the order passed relating to continuation of departmental proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 has been passed on 19.03.2012. Counsel further submits that the departmental proceeding has been initiated for the period 1998 to 2008. Counsel has raised the plea that according to the Bihar Pension Rules, 1950, no proceeding with respect of an event which took place not more than four years before the institution of the proceeding shall continue. Counsel submits that the petitioner has retired in the year 2010, the proceeding is of the year 1998 to 2008 and four years have already been lapsed.
Therefore, such proceeding cannot continue. And therefore, granting permission of continuation of the proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 is absolutely bad in law and not sustainable in the eye of law.
4. Learned counsel for the petitioner further submits that the petitioner is an unfortunate person and due to illness of his wife and marriage of his daughter, he could not attend the office for few months. Counsel submits that the petitioner is basically victim in this case as he was not permitted to the place of his posting and therefore, he continuously represented himself before the authority concerned. Counsel submits that during entire service period of the petitioner, there were two departmental proceedings initiated against him. In the second departmental proceeding, petitioner submitted his showcause on 15.04.2010. Counsel submits that the petitioner has submitted his show-cause and in the show-cause, he has only stated that no pecuniary loss has been caused to the Government. It has also been submitted that in the different offices, the allegation that loss has been caused due to his inaction is not correct and he has denied the same.
5. Learned counsel for the State on the other hand submits that the orders which are annexed as Annexures-10 & 11, both have been passed completely in accordance with law. Counsel submits that the State has already filed counter affidavit and in the said counter affidavit, the stand has been taken that the departmental enquiry has been initiated against the petitioner by virtue of Memo no.3006 dated 12.08.2008 following Prapatra-K has been issued. The petitioner remained absent from his duty since 17.07.1998 to 28.08.2008 and he submitted his joining on 28.08.2008 and thereafter, he was suspended by notification No.90 dated 09.01.2009. The Enquiry Officer submitted his report on 20.06.2009 whereby it appears that the petitioner did not choose to appear and did not filed any reply. The paper publication has been made on 17.05.2008 but, inspite thereof, the petitioner did not co-operated and as such, the Enquiry Officer proceeded ex-parte and charges have been found proved against the petitioner. Counsel further submits that after considering the entire facts and circumstances, the second show-cause notice was issued to the petitioner by letter no.1400 dated 26.03.2010. Counsel further submits that in the present departmental proceeding, neither any procedural mistake has been taken nor violation of natural justice has been made nor any exorbitant punishment has been imposed and therefore, there is no need of any interference in this matter.
6. After hearing the parties, it transpires to this Court that the most fatal question raised by counsel for the petitioner in this case that the violation of Rule 43(b) of the Bihar Pension Rules, 1950 has been made at the time of passing the order contained in Memo no.1486 dated 19.03.2012. It transpires to this Court that the petitioner was retired from the service on 31.10.2010 and both the departmental proceedings have been initiated prior to his retirement.
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