ASHA SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application was initially filed by one Arun Kumar Sinha, who retired on 31.7.2001 from the post of Executive Engineer. The prayer of the petitioner was for commanding the respondents to pay all retiral benefits including pension, provident fund, gratuity and leave encashment as also for payment of arrears of full salary for the period of suspension from 7.7.1994 to 31.7.2001 along with statutory and penal interest. Further prayer of the petitioner was to quash the order bearing Memo No. 40 dated 14.1.2002 (Annexure-5) whereby the petitioner was directed to file second show cause in pursuant to the purported punishment passed under Rule 43 (b) of the Bihar Pension Rules.

(2.) The original petitioner died during the pendency of this application and IA No. 4603 of 2002 was filed by his widow namely Asha Sinha for substituting her name in the category of petitioner, on account of the death of her husband. It was also stated in the IA petition that she has been authorised by all other legal heirs for prosecuting this case. The IA application was allowed by order dated 8.10.2002 and Asha Sinha was substituted as petitioner in this case.

(3.) The husband of the petitioner during his service was suspended on 7.3.1994 in respect of certain works done by him during the year 1990-91 while he was posted as Executive Engineer, Faludih Raight Main Canal Division No. II, Musabani, West Singhbhurn. A departmental proceeding under Rule 55 of the Bihar Civil Service (Classification Control & Appeal) Rules was initiated against the husband of the petitioner. The enquiry officer after considering the reply of the husband of the petitioner and other materials available on the record did not find him guilty of the charges levelled against him and submitted enquiry report to the disciplinary authority. A second show cause notice proposing two punishments namely punishment for dismissal from service and non payment of any salary during the suspension period except subsistence allowance was issued and in compliance to the second show cause notice the original petitioner filed his reply to the second show cause notice which was considered at the government level and file was sent to Bihar Public Service Commission under Letter No. 1122 dated 12.6.2001 for its concurrence. The BPSC sought for some necessary information and documents which were made available to BPSC under Letter No. 1553 dated 22.8.2001. While the matter was pending before the B.P.S.C. the original petitioner superannuated with effect from 31.11.2001 and the departmental proceeding remained unconcluded during his service period. The proceeding was converted under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules) and accordingly second show cause notice was issued under Memo No. 40 dated 14.1.2002 (Annexure-5). The original petitioner challenged Annexure-5 and also made prayer for payment of his pensionary benefits on the ground that the order dated 14.1.2002 Annexure-5 is illegal as the respondents authorities have no authority to convert the departmental proceeding in a proceeding under Rule 43(b) of the Rules with regard to an occurrence which took place about 17-18 years ago. He further challenged the proceeding under Section 43(b) of the Rules on the ground that the charges framed against him clearly indicated it to be a case of irregularity. The enquiry officer did not find him guilty of any charge, the department failed to establish any of the charges in course of departmental proceeding before enquiry officer. Even the B.P.S.C. did not agree with the proposal of disciplinary authority for taking any harsh action and punishment against him. There is no allegation of any financial irregularity against him, as such the ingredient for initiating proceeding under Rule 43 (b) of the Pension Rules is missing and the conversion of the proceeding under Rule 43(b) is arbitrary and misuse of the power vested in the authority concerned.