GANESH PRASAD YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This matter has been taken up for hearing online because of COVID-19 pandemic restrictions.

(2.) Aggrieved by a resolution of the Public Health Engineering Department, Government of Bihar issued vide Memo No. 853 dtd. 12/10/2017 whereby, in exercise of power under Rule 43(b) of Bihar Pension Rules, 1950 punishment of withholding of 25% pension has been imposed on the petitioner, the petitioner has approached this Court by filing present writ application under Article 226 of the Constitution. Short facts relevant for adjudication of the present case, as culled out from the pleadings, on record are that the petitioner at the relevant point of time was posted as the Executive Engineer, Public Health Engineer Division, Muzaffarpur. In the meeting of a Tender Committee held on 8/4/2010 at the departmental headquarter under the Chairmanship of Departmental Principal Secretary, it emerged that the petitioner had recommended for irregular payment of Rs.2,20,54,120.00 on a claim made by the contractor Ms. Jusco Ltd., Jamshedpur by way of price neutralization without any examination and proof. The Tender Committee, on careful consideration of the claim of the Firm, recommended payment of Rs.1,14,13,628.00 only. It was accordingly alleged against the petitioner that had the amount recommended by the petitioner by way of price neutralization been accepted and paid, the Government would have suffered a loss to the tune of Rs.1,00,64,492.00. The basis for calculation done by the petitioner for recommending price neutralization was found to be defective and it was alleged in the charge memo that without proper and comprehensive enquiry on the claim of the contractor regarding price neutralization and any reliable and legal proof, the petitioner made the recommendation, which was not proper and was rather objectionable.

(3.) Evidently, for the occurrence of April, 2010, the departmental proceeding was initiated with the issuance of charge sheet on 31/1/2014 under Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the BGS (CCA) Rules) which coincided with the date of the petitioner's superannuation. By a subsequent order dtd. 18/7/2016, the departmental proceeding was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules. By the said resolution dtd. 31/1/2014, the Departmental Enquiry Commissioner was appointed as the Enquiring Authority. A Presenting Officer was also appointed by the same resolution dtd. 31/1/2014. The petitioner submitted his written statement of defence and participated in the departmental enquiry. The Enquiring Authority submitted its report on 2/3/2016 with the findings that none of the charges against the petitioner could be established. A copy of the report of the Enquiring Authority has been brought on record by way of Annexure-3 to the writ application. The Disciplinary Authority, however, disagreed with the enquiry report and asked the petitioner to submit his response to the tentative notes of disagreement with the report of the Enquiring Authority. The said tentative notes of disagreement contained findings/reasons for disagreeing with the enquiry report. The petitioner submitted his response to the Disciplinary Authority on 19/8/2016, to the said notes of disagreement. The petitioner's explanation that findings recorded by the Enquiring Authority were correct, was not acceptable to the State Government and accordingly it was proposed to impose punishment of withholding of 25% of pension permanently. The department thereafter sought concurrence of the Bihar Public Service Commission on the proposed punishment through letter dtd. 9/1/2017 issued by the department. The Bihar Public Service Commission, however, refused to concur with the proposed punishment of withholding of 25% of pension. The opinion of the Bihar Public Service Commission was, however, found not acceptable by the Disciplinary Authority and accordingly, disagreeing with the report of the Enquiring Authority, punishment of withholding of 25% of pension has been imposed by the impugned resolution dtd. 12/10/2017.