MITHILESH KUMAR SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ petition the petitioner is aggrieved by withholding of 10% of his pension and 10% of his gratuity.

(2.) IT appears that vide Government notification dated 15.10.1998, contained in Annexure A/3, an order has been passed only for withholding of 10% of pension pursuant to the departmental proceeding instituted against the petitioner in purported exercise of the power contained in proviso to rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as 'the Rules '), vide Government resolution, contained in Annexure A/5 to the supplementary counter affidavit filed on behalf of respondent no.1. No order for withholding of 10% of gratuity has been brought on record on behalf of the respondents, still the same has been kept withheld though he retired from the service of the State Government long back on 28.2.1991 while posted as Director, Public Health Institute, Patna. The Government resolution initiating the aforementioned departmental proceeding was issued on 1.7.1991 i.e., after the retirement of the petitioner with respect to the charges relating to the period 28.5.1990 to 8.6.1990 when he was posted as Civil Surgeon -cum -Chief Medical Officer, Madhubani.

(3.) IT has rightly been submitted that it is not the case of the respondents that the petitioner was placed under suspension from an earlier date. Bare perusal of the Government resolution, contained in Annexure A/5 shows that the said resolution containing the charges framed against the petitioner was issued to the Deputy Director, Darbhanga Division and not to him. Learned counsel for the State has failed to show from the averments made in the counter affidavit that the said Government resolution was ever issued to the petitioner within four years of the events relating to the charge. Under such circumstances, this Court finds that the departmental proceeding purported to have been initiated under proviso to rule 43(b) of the Rules, vide Government resolution, contained in Annexure A/5, was barred by the provisions, contained in sub -clause (ii) of clause cA proviso to rule 43(b) of the Rules and, thus, the impugned order of punishment is also vitiated. Moreover, learned counsel for the petitioner has also submitted that the impugned order also suffers from infirmity because it is a cryptic order and not a speaking order. This Court finds substance in the said submission of the learned counsel for the petitioner. Bare perusal of the order, contained in An -nexure A/3, shows that no reason has been recorded for holding the petitioner guilty of the charge. Thus, in view of the principle decided by the Apex Court in the case of Nand Kishore Prasad vs. The State of Bihar, reported in AIR 1978 S.C. 1277, the said order cannot be sustained.