NAWAL KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ application, the petitioner has prayed for issuance of an appropriate direction commanding upon the respondents to pay the amount of pension, gratuity leave encashment and arrears of salary for the period 27.12.91 and 31.8.94 as the petitioner retired on 31.8.94.

(2.) SOME undisputed facts are as under: The petitioner retired from service on 31.8.94 while he was working on the post of Executive Engineer, Water Resources Department, Advance Planning, Patna. On 27.2.91, the petitioner was put under suspension in a contemplation of a departmental proceeding while he was posted as Executive Engineer Minor Irrigation, Simdega. On 4.9.91 the petitioner was served with a charge -sheet and in pursuance thereto he filed his detailed show cause/reply. The inquiry officer proceeded with the enquiry and submitted his inquiry report on 9.3.93. On submission of the enquiry report second show - cause notice was issued by the respondents on 26.4.94 and a reply thereto was filed by the petitioner on 9.5.94. The petitioner then retired from service on 31.8.94. The petitioner 'sfurther case is that before his retirement, the departmental proceeding was not concluded and it was only after expiry of long period of four years since his retirement that a show -cause notice under Rules 139(a) and (b) of the Bihar Pension Rules has been served upon him asking him to file show -cause as to why his pension be not withheld. It is worth to mention here that after retirement the petitioner was paid 90% provisional pension vide order dated 12.9.95. The petitioner represented before the authority concerned for payment of gratuity amount, leave salary as well as balance amount of salary but in spite of several representations no tiling was paid. It is contended that the respondents have no authority to withhold the retiral dues of the petitioner only on the ground of pendency of the proceeding under the Pension Rules, During the pendency of the writ application, the respondents issued order dated 19.2.99 under Rule 139(a) and (b) of the aforesaid Rules by which the petitioner 's pension and gratuity has been nulled down to zero. The petitioner has challenged this order also by filing amendment petition.

(3.) MR . A.K. Sinha, learned Sr. Counsel assailed the impugned order dated 19.12.99 as contained in Annexure 5 to the writ application as being illegal and wholly without jurisdiction. Earned Counsel firstly submitted that the respondents -authority have no jurisdiction to pass the impugned order under Rule 139(a) and (b) of the said Rules. According to the learned Counsel, the word 'pension ' includes gratuity also and it cannot be nulled down to zero in an arbitrary manner under the aforementioned Rules. Earned Counsel then submitted that while the petitioner was in service, no adverse remark was ever communicated to him and no departmental proceeding was ever initiated against him except the instant one and, therefore, the aforesaid Rule cannot be made applicable in the case of the petitioner as admittedly, the service of the petitioner was not unsatisfactory throughout. Learned Counsel further submitted that the charges were not proved because the second show cause/reply filed by the petitioner was not rejected nor the Disciplinary authority, on the proof of alleged charges, passed any final order while the petitioner was in service. Learned Counsel further drawn my attention to the enquiry report and submitted that even the charges have not been proved in the departmental proceeding.