YASHWANT KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner retired from the Health Department on 31.11.1995. When his pension and other retiral benefits were not being paid, he approached this Court by filing CWJC No 6833 of 1996. This Court disposed of the writ petition by order dated 02nd May, 1997 fixing a time schedule to pay the admitted dues of the petitioner. Even this was not complied with. Petitioner filed MJC No 2573 of 1997 for initiating contempt proceedings against the opposite parties for not complying the order of this Court passed in the writ proceedings. During pendency of this application for initiating contempt proceedings, allegations were made against the petitioner of certain defalcations. This Court, in those proceedings, vide order dated 06.04.1999, directed the opposite parties to file supplementary show cause giving therein the details of proceedings, if any, initiated with reference to Rule 43 (b) of the Bihar Pension Rules, 1950 , first information report, if any, lodged against the petitioner and details relating to pension, gratuity etc. The opposite parties filed their supplementary show cause clearly admitting that neither proceedings under Rule 43 (b) nor any notice under Section 139 of the Bihar Pension Rules had been initiated or issued and steps were being taken to pay the retiral dues. In view of the aforesaid facts, this Court disposed of the said application on 18.05.1999 for initiating contempt proceedings with a direction to clear the retiral dues of the petitioner within a period of two months. Further, liberty was given to the State to initiate proceedings in respect of any allegation of recent four years within one month from the order. This order of this Court passed in the contempt proceedings is Annexure-1 to the writ petition. It appears that after these proceedings were, thus, terminated, State first quantified the amount that was recoverable from the petitioner and then as if there was a direction from the Court to initiate proceedings under Rule 43 (b) read with Rule 139 of the Bihar Pension Rules, initiated such a proceeding by issuance of notice dated 29.10.1999 (Annexure-3) for recovery. The petitioner responded. Thereafter, on 16.06.2000, enquiry report was submitted. Learned counsel for the petitioner has drawn my attention to the enquiry report to show that the dereliction alone is of the year, 1993 and 1994 and not beyond that. It appears that the authority that is the Director-in-Chief, Health Services, Bihar accepted the enquiry report, issued notice to the petitioner which, as per petitioner's allegations, did not contain the enquiry report and upon petitioner's response, passed orders in terms of Rule 43 (b) directing reduction of pension by 10% by order dated 03.10.2002. It is, in effect, challenge to this order that the writ application has been filed. It may be noticed here that the petitioner has come to this Court against the said order but was asked to make a representation to the Director-in-Chief, Health Services who has ultimately reaffirmed his earlier order by order dated 02.04.2004 (Annexure-10) and, thus, tnese two annexures that is Annexures-6 and 10 are assailed.

(2.) Counter affidavits being on record, the matter was heard for disposal at the stage of admission itself with consent of parties.

(3.) Learned counsel for the petitioner, apart from other issues, has raised a short technical issue. He submits that in view of the specific provision of Rule 43 (b) that a proceeding in terms of Rule 43 (b) of the Bihar Pension Rules could not be initiated in the present case in view of Clause (a) (ii) of the proviso to Rule 43 (b). The said provision, inter alia, puts a limitation on the right of the State to initiate proceedings against an employee who has superannuated. The Clause, inter alia, provides that such a departmental proceeding, if not initiated during service tenure of an employee, could only be initiated in respect of event which took place not more than four years before the institution of such proceeding. Thus, we have to see whether this period of limitation applies or not.