PATNA, India, July 2 -- Patna High Court issued the following judgment on June 30:

Heard Mr. Dhananjay Mishra, learned Advocate for the petitioner and Mr. Kunal Tiwary, learned Advocate for the North Bihar Power Distribution Company Ltd.

2. The challenge in the present writ petition is made to an order no. 472 dated 14.05.2010 by which the pension of the erstwhile employee (original petitioner) came to be reduced by 25%, with a further direction that the petitioner shall not be entitled to any benefit, except subsistence allowance during the period of suspension.

3. Before parting with the case it would be pertinent to note that during the pendency of the writ petition, the sole petitioner died on 30.07.2022; subsequently an interlocutory application came to be filed on behalf of the wife of the erstwhile employee and her name has been substituted by this Court, who has been pursuing this writ petition.

4. Mr. Dhananjay Mishra, learned Advocate for the petitioner referring to the materials available on record primarily contended that while the (deceased) petitioner was holding the post of Assistant Electrical Engineer in the Bihar Power Holding Company Ltd., he was subjected to a departmental proceeding, which came to be initiated vide resolution no. 2366 dated 05.10.2002 on the alleged negligence in duty, in not detecting the delay in crediting of the amount in the board's account by the cashier (Account Assistant) who is responsible for maintenance of cashbook and cheque register in terms with the Board Circular No. 125 dated 31.03.1962.

5. While assailing the impugned order learned Advocate for the petitioner primarily contended that it is the admitted position, while the departmental proceeding was pending consideration, in the mean while, the (deceased) petitioner superannuated on 31.01.2004 and without converting the departmental proceeding under Rule 43(b), they proceeded further and inflicted the punishment of reducing 25% of the pension, which is wholly without jurisdiction. There is no specific order converting the proceeding under Rule 43(b), hence the punishment inflicted under Rule 43(b) is unsustainable in law. Various other points have been urged to sustain the challenge to the impugned order.

6. On the other hand, at the outset, a preliminary objection has been raised with regard to delay and laches in approaching the Court, inasmuch as, the impugned order of dismissal dated 14.05.2010 came to be challenged in the year 2020.

7. Mr. Kunal Tiwary, learned Advocate for the respondent placed reliance upon a full Bench decision of this Court in the case of Shambhu Saran Vs. The State of Bihar & Ors., (2000) 1 PLJR 665 and contended that no specific order is required to converting the proceeding under Rule 43(b). A supplementary counter affidavit came to be filed and from the averments made in paragraph no. 3 it appears that on being aggrieved with the order of punishment passed by the respondent company, the erstwhile employee had preferred appeal, which also came to be rejected vide order contained in letter no. 271 dated 03.02.2011.

8. Reliance has also been placed on a decision rendered by Apex Court in the case of State of U.P. Vs. Harendra Arora & Anr., (2001) 6 SCC 392. Referring thereto it is contended that every infractions of statutory provisions could not make the consequent action void and/or invalid. The Court observed that in respect of procedural provision other than that of fundamental nature, the theory of substantial compliance would be available and in such cases objection on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing.

9. Learned Advocate for the petitioner refuted the contention and submitted that the order passed by the appellate authority has never been served upon the (deceased) petitioner; had the order been served upon him, he would have certainly assailed the same in the writ petition itself. So far the delay in filing of the present case is concerned, drawing the attention of this Court to averments made in paragraph no. 6 of the writ petition, it is submitted that the petitioner had all along been representing before the authorities concerned, but the concerned authority has never considered the same. Since the copies of earlier representation was lost during the journey, therefore the copy of the same could not be brought on record.

10. Having considered the submissions set forth; while exercising prerogative discretionary writ jurisdiction under Article 226 of the Constitution, the Court must consider the point of delay and laches; and if the same is found, the Court should be reluctant to grant extraordinary relief to those who approach the Court belatedlty. It would be apposite to encapsulate the relevant extract of decisions rendered in the case of Karnataka Power Corporation Limited through its Chairman and Managing Director and Anr v. K. Thangappan and Anr. [(2006) 4 SCC 322] :-

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