RAJ KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THERE is a chequered history of the case. Once this writ petition was allowed by a Bench of this Court on 16.2.2000 by setting aside the order of punishment imposed on the petitioner on the ground that no proceeding had been initiated under Rule 43B of the Bihar Pension Rules after supeannuation of the petitioner and as such all subsequent actions are without jurisdiction. The State of Bihar went on appeal in L.P.A. No. 597 of 2000. A Division Bench of this Court vide order dated 5.9.2001 had set aside the order of the single Bench basing on the decision of the Full Bench as reported in 2000 (1) PLJR 665 Shambu Saran v. The State of Bihar and Ors. that if a proceeding has been started during the service period then the same can be continued under Rule 43B of the Bihar Pension Rules even after supeannuation without any formal order (sic) being passed. But before the L.P.A. Bench it was submitted that besides that ground of jurisdiction other grounds were also there challenging the proceeding and the punishment thereof and, as such, the L.P.A. Bench had remanded the case to consider and dispose of the writ petition after giving fresh hearing according to law.

(2.) THE admitted position remains that the petitioner was in service of Water Resources Department and retired as Executive Engineer on 30.6.1995. Before his retirement the Water Resources Department had issued a show cause notice to the petitioner on 24.5.1997 vide Annexure-1/1 with allegations that according to the inquiry report of Flying Squad and Twenty Point Committee's report it was found that 1.65 lac cubit fit soil was dug in the Canal bed and for that work Rs. 10 lac as eyes money was paid to the contractors and for that excess payment along with others the petitioner was also responsible. Such work related to western Sone Canal and at the relevant time the petitioner was the Executive Engineer In-charge. In that show cause notice it was also mentioned that from that excess payment made to the contractors while Rs. 50,000/- towards loss to the Government could be realised from the petitioner. THE petitioner in response to the letter as contained in Annexure-1 sent his show cause to Respondent No. 4 on 15.8.1997 the copy of which has been annexed as Annexure-2. In that letter he had requested for giving him all documents relating to the report of the Twenty Points Committee. But without complying so the impugned order dated 19.9.1997, as contained in Annexure-3 was passed inflicting punishment of realisation of Rs. 50,000/- from the petitioner. All these processes have been done after the petitioner has superannuated. But it appears from different Annexure of the writ petition and that of the counter affidavit that while the petitioner was Executive Engineer In-charge of the Western Sone Canal, from zero mile to 4.5 mile long a work was taken up for digging soil from the bed of the Canal and for that purpose an amount of Rs. 10. 94 lakh was paid to the contractors. During the period of this service the petitioner was served with a show cause notice dated 23.11.1991 along with the charge-sheet and the petitioner had replied to that show cause notice vide annexure 6 dated 28.3.1992 and after that the department kept mum till the petitioner retired on 30.6.1995. THEn on 24.5.1997 vide Annexure-1 show cause notice was issued as to why the petitioner should not be punished for realisation of Rs. 50,000/- towards the loss to the Government and, hence, this writ petition was filed.

(3.) LET me first of all take up the legal aspect of the matter. For and against a delinquent employee the disciplinary authority can proceed under Rule 55A of Civil Services (Classification control and Appeal) Rules, 1930 and in such proceedings no detailed procedure for departmental proceeding is required to be followed. On the basis of the reply to the show cause the disciplinary authority can inflict punishment of minor nature. Realisation of loss to the department may not come as a major punishment and it might be a minor one. In that way, in the present proceeding if it is construed that the respondent authorities had proceeded with the petitioner under Rule 55A of the CCA. Rules then infliction of punishment could have been alright if such punishment had been awarded while the petitioner was in service. But after the petitioner had superannuated the whole scenario has been changed. Although if a proceeding is started during the service period of the employee and has not been concluded within the service period and then superannuation comes in then such proceeding can be continued construing the same to be a proceeding under Rule 43B of the Bihar Pension Rules but while proceeding under Rule 43B of the Bihar Pension Rules even if the proceedings were under Rule 55A of the CCA. Rules, the authorities must proceed with the procedure (applicable to proceedings of which an order of dismissal from services may be made). This has been clearly mentioned in Rule 43B(a) of Sub-Rule III. Thus, in the present case, even it is construed that the authorities were proceeding under Rule 55A of the CCA. Rules during the service period of the petitioner then also after his retirement they shall have to go through the detailed procedure of the disciplinary proceedings as required under Rule 55 of the CCA. Rules and other rules subsequent thereafter. In the present case, on the face of it, from Annexure-1 and Annexure-3 it is clear that no detailed departmental proceedings have been initiated at any point of time against the petitioner. The inflictment of punishment as has been done against the petitioner vide Annexure-3 could have been justified legally if the same would have been passed after the first reply to the show cause vide Annexure-6, dated 28.3.1992. But thereafter the petitioner had retired on 30.6.1995 such infliction of punishment without going through the departmental proceeding, an contained in Annexure-3 dated 19.9.1997, is definitely without jurisdiction. This has already been held by a Division Bench of this Court as reported in 2000(3) PLJR 150 State of Bihar and Ors v. Sirajuddin Ahmad. Thus, legally the order contained in Annexure-3 cannot be sustained.