STATE OF BIHAR Vs. GAURI SHANKAR SINHA

JUDGEMENT

(1.) THE appellants being aggrieved by the judgment dated 20.4.2000, passed in C.W.J.C. No. 9152 of 1998 Gauri Shankar Sinha V/s. The State of Bihar & ors. has filed this appeal under Clause -10 of the Letters Patent of the Patna High Court.

(2.) IN the writ petition, the petitioner assailed the validity of the order contained in Memo no. 2233 dated 17.8.1998 (Annexure -3) issued by the Joint Secretary in the Water Resources Department, whereunder in the purported exercise of the powers under Rule 139(a) (b) of Bihar Pension Rules, the pension of the petitioner has been reduced to 50%. The petitioner contended before the learned single Judge that the order purported to have been passed pursuant to the notice contained in Annexure -4, was never served upon him and as such the same should be quashed. The stand of the State Government before the learned single -Judge was that by some mistake wrong provisions were mentioned in the impugned order while in fact the said order was passed in exercise of powers conferred under Rule 43(b) of the Bihar Pension Rules, pursuant to the departmental proceeding initiated against the petitioner prior to his superannuation from service on 31.1.1993, It was also contended that the proceedings were initiated vide order dated 29.7.92 as contained in Annexure -A to the counter affidavit and the order dated 29.3.1993 contained in Annexure -A/1 pursuant to which the petitioner submitted his show cause, but no final order could be passed and as such the petitioner was given show cause notice in exercise of the powers conferred under Rule 139(a)(b) of the Bihar Pension Rules. The learned single Judge after going through the order Annexure -A observed that even before calling for the explanation from the petitioner, the authority had already formed an opinion that the petitioner was guilty and thereafter called upon the petitioner to submit his explanation pursuant to the chargesheet attached to Annexure -A. The learned single Judge also observed that from perusal of those two Annexures, it does not appear that the authority ever proceeded departmentally against the petitioner before his retirement in terms of the provision of Rule -55 of the Civil Service {Classification, Control and Appeal) Rules. The learned single Judge also found that the Government later decided to take action under Rule 139 (a) (b) of the Bihar Pension Rules, issued show cause notice, but the notices show that the same were issued only with respect to the allegations for which Annexures -A and A/1 were issued and not on the ground that the services of the petitioner has not been thoroughly satisfactory. On the basis of the said findings, the learned single Judge held that reliance could not be placed upon Rule 139(a)(b) of the Rules and the same was patently misconceived. The learned single Judge after holding that no proceedings were ever initiated and further that no final order was passed and that the action of the State Government was illegal, accordingly allowed the writ petition, quashed the order Annexure -3 and further directed the State authorities to issue necessary sanction for payment of his remaining pension. Despite notice, the respondent did not prefer to appear in the Court, therefore, we have heard the appellants only. Learned counsel for the appellants after taking us through Annexures -A and A/1 (annexed to the counter affidavit), submitted that a bare perusal of Annexure -A would clearly show that the writ petitioner was prima -facie found guilty and an explanation was called from him 4/1/2013 Page 203 Karu Mian Alias Md.Karu,Gul Mohammad,Amina Khatoon Versus State Of Bihar and he was also required to submit his show cause to the chargesheet. According to him once the proceedings started then it could not be said nor it could be held against the State that no show cause notice was issued, no chargesheet was served and the State authorities, without holding any enquiry found the petitioner guilty.

(3.) HE also placed reliance upon the judgment of this Court in the matter of State of Bihar V/s. Ganga Bishun Mahto 2001(4) PLJR 435. From a perusal of the chargesheet annexed with Annexure -A, it would appear that the department was requiring the writ petitioner to submit his show cause as according to the department, the writ petitioner was guilty of misconduct.