MD FAKHRUDDIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE prayer made in this writ application is to quash the impugned order contained in Annexure -1 dated 30 -3 -2001 by which a punishment of withholding 10% of pension for a period of two years had been awarded to the petitioner, who is a retired Superintending Engineer of the Department of Water Resources, Government of Bihar.

(2.) THE relevant facts for decision in this case are that petitioner took charge as Superintending Engineer in Eastern Kosi Embankment Circle, Saharsa on 7 -6 -1996 and continued in charge till 3 -2 -1997. Therefore, in April 1998 a Flying Squad inspected some of the work sites which were previously under the charge of the petitioner during the periods mentioned above and made a report. On that basis, on 12 -8 -1998 a show -cause notice was given to the petitioner, a copy whereof has been annexed as Annexure -3. The charge pointed out in the show -cause notice was to the effect that 13 estimates had remained pending and were forwarded to the Chief Engineer on 18 -2 -1996 after delay and that petitioner had not made sufficient inspection. Thus, the substance of the allegation against the petitioner right from the beginning is that he caused delay in sending the estimates and was indifferent in his duties. Petitioner submitted his show cause on 18 -8 -1998 and superannuated from service on 31 -1 -1999. Thereafter, the proceeding was converted into one under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as 'the Rules') through Annexure -5 dated 25 -2 -1999. Ninety per cent of pension of the petitioner was released and 10% was temporarily withheld on account of pendency of proceeding.

(3.) ON behalf of the petitioner, two submissions have been advanced to assail the correctness and legality of impugned order dated 30 -3 -2001. Firstly, it has been submitted that in view of proviso to Rule 43(b) of the Rules, the procedure of the inquiry had to be one on which an order of dismissal could have been passed. In other words, the procedure had to be one envisaged under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and not under Rule 55 -A because an order like dismissal could only be passed after following the procedure laid down in Rule 55. According to learned Counsel for the petitioner, a perusal of the inquiry report itself shows that no evidence was led b y the authorities to support the allegation contained in the report of the Flying Squad and the finding in the inquiry to the effect that petitioner was responsible for delay in despatching six estimates to the Chief Engineer was based merely upon a perusal of the report given by the Flying Squad which was the basis of allegation which had been denied by the petitioner in his show cause. The second submission is that under Rule 43(b) of the Rule any order for withholding or withdrawing a pension or any part of it, permanently or for a specified period or for recovery from a pension of the whole or part of any pecuniary loss caused to the Government can be passed only if the employee concerned is found to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence and such finding must be in a departmental or judicial proceeding. According to learned Counsel for the petitioner, neither the inquiry officer nor the disciplinary authority has found the petitioner guilty of grave misconduct or of having caused pecuniary loss to Government by misconduct or negligence.