AWADHESH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the State.

(2.) PETITIONER , who superannuated as Joint Commissioner, Commercial Taxes, has challenged the notification, bearing No. 136 dated 22.3.2005, Annexure -11 to this application, whereunder his pension to the extent of 10% has been withheld with further direction that he shall not be allowed the arrears of salary beyond the subsistence allowance for the period of suspension i.e. 24.11.1997 to 5.4.1999. The order has been passed by the State Government in the purported exercise of powers contained in Rule 43(b) of the Bihar Pension Rules. Learned counsel for the petitioner has challenged the aforesaid order, Annexure -11 on two grounds of violation of natural justice as also lack of materials on records of the proceeding to differ with the findings recorded by the Enquiry Officer as before recording impugned punishment order, departmental proceeding was conducted with respect to the charge -sheet dated 31.10.1998, contained in Annexure - 12 by the Enquiry Officer the Departmental Enquiry Commissioner, who exonerated him of the charges levelled under report dated 12.6.1999, Annexure -2, whereafter without even giving any opportunity to the petitioner, report dated 12.6.1999 was set aside by the State Government and the matter was again remitted back to the another Departmental Enquiry Commissioner, who also after thorough enquiry, submitted report dated 1.7.2004, Annexure -7 exonerating the petitioner. The State Government thereafter considered the second enquiry report dated 1.7.2004 and issued second show cause notice dated 4.11.2004, Annexure -9 and thereunder differed with the findings recorded in the enquiry report dated 1.7.2004 and called upon the petitioner to file show cause reply as to why he be not punished. Petitioner submitted his reply which is dated 16.11.2004, Annexure -10 and thereunder refuted the reasoning formulated for the purpose of differing with the findings recorded in the second enquiry report. It was categorically stated in the reply that reason cannot be supported by the materials available on the records of the departmental proceeding. The State Government considered the second enquiry report reasoning formulated to differ therewith and the second show cause reply and thereafter passed the impugned punishment order, bearing Notification No. 136 dated 22.3.2005, Annexure - 11. withholding 10% of the pension as also the arrears of salary for the suspension period beyond the subsistence allowance.

(3.) FOR better appreciation of the submission raised by the counsel for the petitioner, it is necessary to have a look of the charge -sheet. Charges framed in Form -Ka was appended with the resolution of the State Government dated 31.10.1998, wherefrom it appears that as many as four charges with various sub -charges have been framed, which the second Enquiry Officer in his report has categorized in three categories, namely, Ka, Kha and Ga. Category Ka relates to violation of the different circulars and instructions issued by the State Government dated 8.8.1990, including other circulars for issue of different statutory forms. Category Kha is based on the instructions dated 7.7.1992 issued by the Investigation Bureau of the Department and Category Ga is about failure to complete the assessment for the accounting year, 1986 -87 with promptness.