MAHENDRA NARAIN PATHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD the parties. Petitioner was a clerk at Sikrahna in the district of East Champaran at Motihari and retired as such on 31st December, 1990, This writ petition was filed in December, 1999 when payment of pension to the petitioner was stopped by an order of District Magistrate, East Champaran, Motihari in 27th October, 1997 on the ground that petitioner and one Ram Vilas Choubey a retired veterinary doctor of Turkaulia were in unauthorised occupation over Government property. This order contained in Annxure--6 was brought on record through an amendment petition filed in September, 2001 after a copy of such an order was disclosed to this Court as Annexure-A to the counter-affidavit of Respondent Nos. 2 and 3. This order was challenged subsequently through the amendment petition along with challenge to an order dated 1.11.1993, contained in Annexure-2 passed by the District Magistrate, East Champaran, Motihari whereby on the basis of enquiry report submitted in a detailed departmental proceeding and after considering petitioner's show cause, 15% of his pension was reduced on the ground of several proved charges. By the said order it was also decided that for the period of suspension between 18th December, 1976 to 21st September, 1979 petitioner would be entitled only for subsistence allowances but the period of suspension shall1 be counted towards his service period for the purpose of pension etc. The order contained in Annexure-2 was directed to be entered into his permanent character roll and service book. A representation against the order dated 1.11.1993 (Annexure-2) had been filed before the Divisional Commissioner, Tirhut Division, Muzaffarpur on 19.10.1994. The same was submitted without proper Chanel and much beyond the period of six months prescribed for preferring an appeal against such order of punishment. On these grounds the representation/appeal was rejected by the Commissioner through an order dated 28.4.2000 which has also been challenged by annexing the same as Annexure-5 to the amendment petitioner. The main ground for challenge to the order of punishment contained in Annexure-2 is that proceeding initiated prior to retirement could not have been treated as a proceeding under the Bihar Pension Rules without passing of a specific order converting the proceeding under Bihar Pension Rules. This ground was, however, not pressed because of a Full Bench Judgment of this Court in the case of Shambhu Sharan v. The State of Bihar 2000 (1) PUR 665, much after filing of counter-affidavit, through a supplementary affidavit filed in November, 2001 petitioner has tried to plead and make out a case that the departmental proceeding was vitiated because after submission of report by first enquiry officer another enquiry officer was appointed and on report of such enquiry officer order of punishment has been passed when to the knowledge of the petitioner, no charge was found proved by the enquiry officer. It has also been contended that at no point of time the enquiry report was given to the petitioner so the impugned order is illegal.

(2.) IT is not in dispute that in the year 1976 on charge of misappropriation of Government articles, besides criminal case a departmental enquiry was also initiated against the petitioner. He was placed under suspension on 18.12.1976 but the suspension was subsequently revoked. The final order of punishment contained in Annexure-2 was passed after affording opportunity of show cause to the petitioner. Petitioner has no brought on record the show cause notices given to him on more than one occasion nor he has annexed a copy of his show cause pursuant to which the impugned order was passed by the District Magistrate. From his representation/memorandum of appeal before the Commissioner, which is Annexure-3 to the writ petition it appears that petitioner had objected to the deduction of 15% of his pension only for the period from 1.1.1991 to 1.11.1993 on the ground that reduction should be effected from the date of the order and not from the date of retirement. Besides this he had prayed for payment of salary for the period of suspension. No ground was taken in the representation as is sought to be introduced through a belated amendment petition. These grounds are not supported by materials on record and are being raised after filing of counter-affidavit.

(3.) IN the facts and circumstances, the impugned order contained in Annexure-6 is quashed. The matter relating to stoppage of petitioner's pension is remitted back to the District Magistrate, East Champaran for a fresh decision within two months from the date of production/communication of a copy of this order and after considering petitioner's representation in this regard which should be filed along with a copy of this order, the District Magistrate would be well advised to keep in mind that there is well defined procedure for eviction of encroacher from Government property or Government building which should be resorted in case petitioner's defence is found to have substance so as to raise a bona fide dispute fit to be decided in ah appropriate proceeding permitted by law for acting encroachers from Government property/premises. It is made clear that till a fresh order is passed or till proceedings for eviction are concluded, petitioner should be paid his pension as he was getting prior to impugned order contained in Annexure-6. The writ petition is dismissed in respect of Annexures-2 and 5 but is allowed in respect of Annexure-6 to the afore extent.