STATE OF BIHAR Vs. RAM AWADHESH SHARMA

JUDGEMENT

(1.) The State of Bihar is the appellant against the judgement dated 29th June, 2000 passed in CWJC No. 1757 of 1998 reported in 2000(4) PLJR 83, by a learned Single Judge by which he has allowed the writ application filed by the respondent and quashed the order passed by the appointment State of Bihar withholding 100% pension and gratuity in exercise of power under rule 43(b) read with Rule 139 of the Bihar Pension Rules (hereinafter referred to as the Rules). (Annexure -20 to the writ application).

(2.) THE necessary facts giving rise to the present appeal are that the writ petitioner -respondent was a member of Bihar Engineering Service Class -ll of Water Resources (Irrigation) department, Govt, of Bihar. In 1985, he was sent on deputation in Minor Irrigation Department and he was repatriated to his parent department in the year 1990. On 19.11.1992, he was suspended by the Government with regard to grave misconduct involving misappropriation of several lacs of rupees. On 23.3.1993, he was charge sheet with regard to the said allegations. The allegations related to the period between April, 1985 and March 1988. The respondent filed CWJC No. 5808 of 1995 challenging the order of suspension and initiation of departmental proceeding. This Court disposed of the writ application on 28.8.1995. However, this Court did not interfere with the order of suspension, but directed the concerned authority to conclude the departmental proceeding by 31.12.1995 failing which the order of suspension shall stand vacated. The departmental proceeding was not disposed of within the aforesaid period and accordingly the order of suspension stood withdrawn with effect from 1.1.1996. On 31.1.1997, the respondent superannuated and by that time, no order in the departmental proceeding initiated against him was passed. However, it appears from the record that in a departmental proceeding the respondent was found guilty of misconduct and a second show cause notice was issued to him and a decision was taken to dismiss him from service, but as he retired, no order of dismissal was issued against him. On the other hand, a decision was taken to proceed against him under rule 43(b) of the Rules and accordingly, an order was passed on 13.12.1997 withholding 100% pension and gratuity on the ground of proved misconduct. Thereafter notice under Rule 139(a) (b) of the Rules was served to the respondent as to why his 100% pension and gratuity be not withheld under the aforesaid Rules. Consequently, he filed his show cause and after superannuation on 21.1.1999, a final order was passed withholding 100% pension and gratuity a copy of which has been annexed as annexure -a to the supplementary counter affidavit.

(3.) THE learned Single Judge decided the first point against the respondent and held that if the departmental proceeding has been initiated against the government servant while he was in service, the same will continue after retirement, if not concluded earlier, as a proceeding under rule 43 (b) of the Rules. However, he decided the second point in favour of the respondent and held that even if the departmental proceeding is initiated prior to superannuation and continued after superannuation, no penal order can be passed in respect of an event which took place more than four years before institution of the proceeding under rule 43(b) of the Rules read with Rule 139 of the Rules. No distinction can be made between the proceeding initiated before or after the retirement. In other words, it was held that the bar as incorporated in proviso (a) (ii) to rule 43 (b) of the Rules that the departmental proceeding in respect of an event taking place more than four years before the institution of such proceeding is applicable not only to the proceeding initiated under the rules after the retirement, but also to the departmental proceeding initiated prior to the retirement but continued after retirement for passing an order under rule 43(b) of the Rules.