BINDESHWARI CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) AFTER having heard the learned counsel for the parties and going through the materials on record including the pleadings filed on their behalf, this writ application is being disposed of at the admission stage itself.

(2.) IN this writ application under Article 226 of the Constitution of India, prayer of the petitioner is for quashing the order dated 24.9.1997 whereby the respondent Deputy Secretary, Water Resources Department, Govt, of Bihar, has withheld the gratuity amount and pension of the petitioner, copy of such order is made Annexure -1 to this writ application. By amendment petition, further prayer has been made for quashing the letter dated 17.6.98 issued by the respondent Joint Secretary, Water Resources (Irrigation) Department, Govt, of Bihar, whereby the petitioner has been asked to submit show cause within the time mentioned therein in terms of Rule 139(a)(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the 'Rules '), as to why pension and gratuity be not fixed at zero level on the basis of the charges having been proved in the departmental proceeding, copy of the said letter is made Annexure -19 to the amendment petition.

(3.) IN this case, a counter affidavit has been filed on behalf of the respondents wherein, inter alia, it is stated that the departmental proceeding was initiated vide memo dated 2.5.91 against the petitioner wherein punishment of censure and stoppage of three increments were imposed. The second punishment withholding three increments was quashed by the High Court on the ground that since the punishment withholding three increments with cumulative effect is a major punishment, the same cannot be allowed to stand in view of the fact that no proper opportunity was given to the petitioner. However, the High Court refused to interfere with the first punishment of censure inflicted upon the petitioner, but directed the respondent authority to initiate a departmental proceeding afresh on the same charges and pursuant thereto a fresh proceeding was initiated vide Resolution dated 20.5.95 (Annexure -10). Accordingly, the old proceeding, which was initiated in 1991, was reopened in terms of direction of the High Court and finally the enquiry officer found him guilty, submitted his report on 18.10.96 and on receipt thereof second show cause notice was issued by the disciplinary authority calling upon the petitioner to submit his show cause within the time mentioned therein. It is alleged that the petitioner was aware of the date of superannuation and deliberately submitted his; show cause reply on 7.1.97 (Annexure -12) and before appropriate orders could be passed after approval of the Council of Ministers and the Bihar Public Service Commission, he superannuated on 31.1.97 whereafter the impugned order dated 24.9.97 (Annexure -1) was passed. It is stated that the only order could have been passed after his superannuation must necessarily be under the provisions of the Bihar Pension Rules since after retirement no other punishment could have been imposed on the petitioner. It is further stated that admittedly the proceeding was initiated against the petitioner prior to his retirement which was concluded by passing the impugned order dated 24.9.97 withholding his pension on the proved misconduct in the departmental proceeding. It is further alleged that on a proved misconduct, the Bihar Public Service Commission has approved the proposal of dismissal of the petitioner from the service but since the petitioner retired meanwhile, it saved him from dismissal and instant order under Rule 43(b) of the Rules withholding pension as well as gratuity has been passed.