RAM YATAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) 1. Heard Mr. Awadhesh Kumar Mishra for the petitioner, and Mr. Rajesh Kumar Singh, learned Junior Counsel to AAG II. This writ petition has been preferred for issuance of a writ of certiorari to quash order No. 257, dated 16.3.2002 (Annexure 15), of the Government of Bihar in the Department of Personnel & Administrative Reforms, issued under the signature of Deputy Secretary of the Department, whereby the petitioner's pension to the extent of 100% has been withheld.

(2.) ACCORDING to the writ petition, the petitioner was at the relevant time posted as Registrar in the Department of Excise, and subsequently as Under Secretary in the Department of Minor Irrigation, Govt. of Bihar. He was the Drawing & Disbursing Officer at both the places. On account of huge withdrawals in unauthorised manner Page 0300 during his two postings, the appropriate authority had directed the petitioner to lodge a report prepared by it with the Cabinet (Vigilance) Department, prepared by the appropriate authority and submitted under the petitioners's signature, wherein he was named as an accused. He was thereafter placed under suspension by order dated 2.9.96, in view of initiation of departmental proceedings. He was served with two charge-sheets. The first one was for alleged acts of omission and commission in the Excise Department, a photocopy of which is part of Annexure-5. The second charge-sheet was issued with respect to the affairs of the Department of Minor Irrigation, a photocopy of which is marked Annexure-9A to the writ petition. With respect to Annexure-5, the petitioner had submitted his show-cause before the learned Enquiry Officer on 19.9.97 (Annexure 6). His show-cause with respect to Annexure 9A was submitted similarly before the learned Enquiry Officer oil 18.5.99 (Annexure 10). He denied the charges. The Enquiry Officer submitted his joint enquiry report dated 22.7.99 (Annexure 11), whereby he has held that the Department has not been able to prove anyone of the charges. It. appears that the learned disciplinary authority set aside, the enquiry report and ordered for a De Novo enquiry by a different enquiry officer. Accordingly, a fresh enquiry was conducted wherein the petitioner participated. The Enquiry Officer submitted the fresh report dated 5.9.2001 (Annexure 13A), wherein he found that the Department had been able to prove most of the charges. 2.1) It is relevant to state that the petitioner had in the meanwhile filed a contempt application in this Court bearing MJC No. 1977 of 1999, alleging disobedience of an earlier order of this Court to conclude the departmental proceeding within a specified period. The State Government had filed IA No. 342 of 2000 in the contempt proceeding for extension of time to conclude the departmental proceeding. By order dated 20.2.2002 (Annexure -12), the same was directed to be put up again on 18.3.2002, and the learned Government Counsel was directed to inform the Court on the next occasion whether or not the departmental proceeding had been concluded failing which the Secretary, Department of Personnel X Administrative Reforms, was to be personally present in Court to show cause why a proceeding of contempt be not initiated against him for repeated and wilful disobedience of this Court's direction. 2.2) This was followed by the second show-cause notice dated 6.3.2002 (Annexure 13), calling upon the petitioner to show cause on or before 11.3.2002, as to why punishment to withhold pension to the extent of 100% be not passed. Instead of submitting his reply to the same, the petitioner filed an application dt. 9.3.2002 (Annexure-14) before the Department of Personnel and Administrative Reforms to grant him three weeks time to submit, his reply. It appears that the time was not extended and the impugned under was passed.

(3.) LEARNED Govt. counsel has opposed the writ petition. He first of all submits that a De Novo enquiry was permissible in law. There was adequate justification to set aside the first enquiry report, and order for a De Novo enquiry. He submits that the judgment of the Supreme Court in K.R. Deb v. Collector, Central Excise, Shillong (supra) has been explained and distinguished in its judgment in the case of Union of India v. P. Thayagarajan . He next submits that the opinion of learned Advocate General, if any, was wholly irrelevant in the present context. He next submits that the petitioner has nowhere pleaded in the writ petition as to non-compliance of proviso (c) to Rule 43B of the Bihar Pension Rules. He also submits that proviso (c) to Rule 43B is not mandatory in nature. He relies on the judgment of a learned single judge of this Court in the case of Shambu Nath Bhagat v. State of Bihar reported in 2000 (2) PLJR 394. He also submits that adequate time and opportunity was given to the petitioner to submit his reply to the show-cause. The respondent authorities were bound by the orders of this Court and in due deference to it, sincere attempt had to be made to conclude the departmental proceeding before 18.3.2002. He lastly submits that the impugned order has been passed by the appropriate authority.