BHUBNESHWAR SHARMA Vs. STATE OF BIHAR THROUGH THE ENGINEER-IN-CHIEF-CUM-SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA

JUDGEMENT

(1.) HEARD learned counsel for both the sides.

(2.) THE writ petitioner -appellant was appointed as an Assistant Engineer in 1965 and was posted in the Minor Irrigation Department in 1989. A criminal case was registered against the writ petitioner under Sections 420, 467, 468, 471, 409 and 120B of the Indian Penal Code. The main allegation against the writ petitioner was that without taking sanction from the competent authority of the Government and without following the procedure of the NREP, purchases of Rs. 10.60 lacs were made and payments were made beyond his power, as the same was not existent. Simultaneously, besides the criminal proceeding, a departmental proceeding was also initiated against the writ petitioner. It is submitted by learned counsel for the appellant that the criminal case is still pending. Meanwhile, since his suspension prolonged very long, he approached this Court by filing a writ application bearing C.W.J.C. No. 4336 of 1994, in which the respondent authorities were directed to dis - pose of the departmental proceeding expe - ditiously and it was also directed that his suspension would stand automatically re - voked after expiry of six months. Conse - quently, the suspension of the appellant was revoked, as the departmental inquiry prolonged. In the departmental proceeding the appellant was found guilty and he was dismissed from service. The writ petitioner approached this Court by filing another writ application bearing C.W.J.C. No. 5451 of 1996. against the order of dismissal in which it was stated that no second show -cause notice was served on the petitioner. In fact, reply to second show -cause notice was absolutely futile. The said writ application was disposed of directing the State Gov - ernment to reconsider the matter and order of dismissal of the writ petitioner was set aside. In the above case, the learned Singie Judge further directed the State Government to examine the propriety of the departmental proceeding. Before passing any further order, the writ petitioner superannuated from the services. By order dated 24.1.1998 he was imposed punishment under Rule 43(b) of the Bihar Pension Rules (hereinafter to be freferred to as "Rules") and hundred per cent pension and gratuity of the writ petitioner were withheld for ever. After the above communication, by Annexure -2, three days thereafter on 27.1.1998 he was informed that since the disciplinary proceeding was not completed during the service period of the appellant, the Government has decided to proceed against him under Rule 43(b) of the Rules.

(3.) RULE 43(b) of the Rules reads as follows: - "43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including, service rendered on re -employment after retirement: Provided that - (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re -employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re -employment, shall have been instituted in accordance with sub -clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed."