UDAI SHANKAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ petition, petitioner is aggrieved by the order dated 2nd November, 1996, contained in Annexure -24 whereby and whereunder his pension has been fixed at zero.

(2.) PETITIONER retired from service of the State Government on 31.5.1994 while posted as Executive Engineer in the Water Resources Department. It appears that before his retirement a departmental enquiry was initiated, but before conclusion of the same he was allowed to superannuate. However, from the impugned order, it appears that on the basis of the findings recorded by the Inquiring Officer in the said proceeding the State Government invoked the power conferred on the sanctioning authority under Rule 139 (a) & (b) of the Bihar Pension Rules for making such reduction in the amount as it thinks proper and the petitioner was called upon to file his show cause. Petitioner filed his show cause and on consideration of the same the impugned order has been passed.

(3.) UNDER Rule 139 (b) of the Bihar Pension Rules, the authority sanctioning the pension is empowered to make such reduction in the amount as it thinks proper only if the service has not been thoroughly satisfactory. It is not disputed that the petitioner earned his promotions at due time. In the present case, the only basis for exercise of power under Rule 139 (a) & (b) is the findings recorded by the Inquiring Officer in the departmental proceeding, which had not attained finality by passing final order in the said proceeding by the disciplinary authority. Under such circumstances, this Court finds it difficult to hold that on that basis alone the power under Rule 139 (a) & (b) can be invoked. Learned counsel for the State, however, ventured to submit that from the impugned order itself it is clear that the entire service of the petitioner has not been found satisfactory. This Court is unable to accept the said submission of the learned counsel for the State. The show cause notice (Annexure -22) also only refers to the charge of the year 1980 -81 during the posting of the petitioner as Assistant Engineer in Tirhut Canal Division, Hajipur from where the proceeding was initiated. It does not at all mention about any other infirmity in the entire service career of the petitioner. In my opinion, in the facts and circumstances aforementioned even the authority is not competent to invoke the power to initiate departmental proceeding in terms of the proviso to Rule 43 (b) which ve power in the State Government to initiate such proceeding even after the retirement of a Government servant as it can be only in respect of an event which took place not more than four years before the institution of such proceeding. In present case, admittedly the proceeding initiated earlier did not finally conclude while the petitioner was in service and thus the State Government could have only initiated fresh action against him in terms of the said proviso. As, such power cannot be exercised by the State Government in view of the rider provided in the proviso, in my opinion, the power under Rule 139 of the Bihar Pension Rules cannot be invoked on the basis of a dead proceeding.