STATE OF BIHAR Vs. SACHIDANAND SINGH

JUDGEMENT

(1.) THE State of Bihar and its functionaries, aggrieved by the order dated 14th September, 1999 passed in C.W.J.C. No. 7550 of 1998 allowing the writ application, setting aside the punishment of recovery of Rs. 2.55 lacs and withholding 25% of his pension have preferred this appeal under Clause 10 of the Letters Patent. Short facts, giving rise to the present appeal, are that the writ petitioner -respondent herein, hereinafter referred to as the writ petitioner was posted as Superintending Engineer, Irrigation Circle, Jamui, during the period April, 1988 to October, 1991. He was found prima facie guilty of irregularity in the original work of spill channel and faulty work done under Upper Kiul Reservoir Scheme during 1988 -89. The aforesaid conclusion was arrived at on the basis of spot verification report and the inquiry report of the Flying Squad Wing of the Department. Accordingly, vide Resolution dated 28.6.1996, a departmental proceeding was initiated against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. Writ petitioner superannuated from service on 30th of June, 1996. Notwithstanding the superannuation of the writ petitioner, the State Government continued the said proceeding under Rule 43(b) of the Bihar Pension Rules. Ultimately, in the said proceeding, writ petitioner was found guilty and he was visited with the penalty of recovery of Rs. 2.55 lacs in one instalment from the dues and pensionary benefits and further, withholding of 25% of his pension in future.

(2.) WRIT petitioner challenged the aforesaid order, inter alia, contending that no order for initiating any proceeding under Rule 43(b) of the Bihar Pension Rules was ever taken and therefore, the penalty inflicted is bad in law. It was specifically averred that the order initiating the proceeding under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, hereinafter referred to as ˜the Civil Services Rules ' was put in transmission and sent on 1.7.1996 by registered post but prior to that, the writ petitioner had already superannuated from service on 30th of June, 1996.

(3.) MRS . Neelu Agrawal, Government Advocate -X, appearing on behalf of the appellant, submits that as the departmental proceeding was initiated against the writ petitioner prior to his superannuation, there was no occasion to pass specific order for continuance of that proceeding under Rule 43(b) of the Bihar Pension Rules. She submits that the view taken by the learned single Judge that specific order requires to be passed for continuance of the departmental proceeding in terms of Rule 43(b) of the Bihar Pension Rules is wrong. In support of the submission, reliance has been placed on a Full Bench decision of this Court in the case of Shambhu Sharan V/s. The State of Bihar and Ors. 2000 (1). PLJR 665 and our attention has been drawn to the following passage from paragraph No. 8 of the judgment, which reads as follows: 8. xxxx - Accordingly, in our view, it is open to an authority concerned to continue with a disciplinary enquiry which was initiated before his retirement. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue. No such condition has been laid down in Rule 43 in respect of a case where such a proceeding has already been initiated as required by the three conditions in respect of initiation of a fresh proceeding after such retirement. We cannot import the requirement of such a condition which is not in the rules. This would be against the principle of cassus omissus. If we accept the contention that such an order of the Government is required before such proceeding can be continued, then we shall be introducing a condition in the rule, which the rule does not provide for. xxx xxx (underlining ours)