ASHOK KUMAR MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for quashing the Resolution dated 24th March, 1999 whereby a proceeding has been initiated against the petitioner under Rule 43(b) of the Bihar Pension Rules.

(2.) SHORN of unnecessary details facts giving rise to the present application are that the petitioner worked in the Building Construction Department of the State Government till 24th of September, 1994 and thereafter transferred to another department. By order dated 24.5.1997 (Annexure -1) he was put under suspension under Rule 49A of the Civil Services (Classification, Control and Appeal) Rules in contemplation of a departmental enquiry. Ultimately, the petitioner retired from service on attaining the age of superannuation on 31.5.98. After his retirement, by the impugned resolution dated 24.3.99 (Annexure -2) a proceeding has been initiated under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules) on the purported ground that while the petitioner was posted in the Building Construction Department of the State Government, in the financial year 1994 -95 in collusion with the suppliers, he fabricated various documents and manipulated the account. It is the stand of the petitioner that he remained in the Building Construction Department till 24.9.94 and hence initiation of departmental proceeding under Rule 43(b) of the Rules is beyond four years from the date the event had taken place and as such proceeding is fit to be quashed.

(3.) AND in paragraph 5 thereof it has been stated that the forgery committed by the petitioner and others came into light vide letter of the Accountant General bearing No. 392 dated 22.11.96 and as such proceeding initiated under Rule 43(b) of the Rules is within the period prescribed. 4. Mr. Pushkar Narain Shahi appearing on behalf of the petitioner submits that Rule 43 (b) of the Rules gives discretion to the State Government to initiate proceeding for withholding or withdrawing the whole or any part of the pension but such a proceeding cannot be in respect of an event which took place more than four years before the institution of the proceeding. He points out that the proceeding has been initiated on 24.3.99 where as the misconduct alleged against the petitioner had taken place prior to 24.9.94 and as such the proceeding initiated against him is beyond the time prescribed under provisio (a) (ii) of Rule 43(b) of the Rules. He submits that notwithstanding the date on which misconduct alleged comes to the notice of the authority, the period of four years has to be counted with reference to the date of event. In support of his submission learned counsel has placed reliance on a decision of the Supreme Court in the case of State of Bihar and others V/s. Mohd. Idris Ansari [1995 (2) P.L.J.R. 51] and my attention has been drawn to paragraph 6 of the judgment, relevant portion of which reads as follows : "A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rules 43(a) and (b), in connection with the alleged misconduct, as it is alleged to have taken place in the year 1986 -87. As the alleged misconduct by 1993 was at least six years old, Rule 43(b) was out of picture."