BALDEO RAM Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the captioned writ application, prayer has been made for quashing the notification dated 16.04.2007 pertaining to imposition of punishment of recovery of 50% of the pension of the petitioner and further prayer for quashing the entire departmental proceeding against the petitioner and for direction upon respondents to forthwith release all the retiral dues and for fixation of final and full pension.

(2.) The brief facts as emanated from the writ application is that initially the petitioner was appointed as Assistant Engineer in the department of Water Resources Department, State of Bihar in the year 1972. During course of time, the petitioner was promoted to the post of Executive Engineer and subsequently on the post of Superintending Engineer. After bifurcation of the State of Bihar, the petitioner's services has been allocated to the State of Jharkhand and accordingly, he joined the State of Jharkhand in the Water Resources Department on 30.11.2000. While the petitioner was posted as Secretary Technical to the Chief Engineer, Minor Irrigation at Ranchi with an additional charge of Superintending Engineer, Minor Irrigation Circle, Hazaribagh, District of Chatra, Hazaribagh, Koderma, Giridih and Dhanbad a check Dam in the name of Kodai Bandh Jharna Nala Irrigation Scheme located in Tishi Block of Giridih district was under construction and unfortunately the said Bandh was broken in the year, 2002. The petitioner was put under suspension on 06.07.2002 and thereafter, it was decided to initiate departmental proceeding against the petitioners. Thereafter, in the departmental proceeding, inquiry officer and presenting officer was appointed. The inquiry officer concluded the inquiry on 03.10.2002. After lapse of one year, a second show cause notice was issued to the petitioner vide letter dated 13.03.2004, to give reply against the proposed punishment. The petitioner submitted several representations for supply of the report of the design organization, which has been passed on the administrative approval of the estimate, but the same was not supplied to the petitioner. The petitioner also submitted his representation dated 28.07.2004, ventilating his grievance for conclusion of the departmental proceeding and also for finalization or fixation of pension. In absence of the inquiry report and the relevant documents, the petitioner was not in a position to file reply to the second show cause and finally the punishment order dated 16.04.2007 has been passed imposing deduction of 50% from the pension under the provisions of Rule 43B of the Bihar Pension Rules, vide Annexure-18 to the writ application. Being aggrieved by the aforesaid order, the petitioner left with no other alternative, efficacious and speedy remedy, has been constrained to challenge the impugned order invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India.

(3.) Learned counsel for the petitioner, while assailing the impugned order of punishment dated 16.04.2007 has submitted with vehemence that the entire departmental proceeding initiated against the petitioner with effect from 06.07.2002 could not be culminated within two years till the date of superannuation i.e. 31.01.2004. The impugned order was passed on 16.04.2007 after inordinate delay. Learned counsel for the petitioner has further submitted that though the inquiry report was asked by the petitioner but the inquiry report with the signature of the inquiry officer was not supplied to the petitioner thereby causing prejudice to the petitioner. The petitioner was neither supplied with the inquiry report nor was provided with the document of technical sanction, which would have gone to the root of the charge but the same having not been supplied to the petitioner deprived the petitioner to file second show cause reply, therefore, there has been breach of principle of natural justice. Learned counsel for the petitioner further submits that the Rule 43 B of the Bihar Pension Rules which envisages that before passing of the order, the Public Service Commission is to be consulted. In the instant case, the Public Service Commission having not been consulted the impugned order is liable to be set at naught. Learned counsel for the petitioner further submits that the Executive Engineer and Assistant Engineer against whom the charges were also levelled, have been exonerated from infliction of any punishment and hence the petitioner is entitled to parity of treatment at par with co-delinquents. Learned counsel for the petitioner further submits that illegality and discrimination committed by the disciplinary authority of imposing lesser punishment on one engineer namely Madan Mohan Malviya, against whom also there was proposal of the Secretary level to impose the punishment of withholding of five annual increments with cumulative effect, but subsequently the Hon'ble Chief Minister has differed with the said proposal and has given opinion for imposing punishment of dismissal from services but ultimately Shri Malviya has been imposed with the punishment of withholding of five increments with cumulative effect, meaning thereby the proposal given by the Secretary has been taken into account while imposing punishment upon the said Junior Engineer. But in the instant case, the authority has proposed to impose punishment of withholding of three annual increments with cumulative effect but subsequently it was changed to 20% recovery from pension and again it has been changed and enhanced to withholding of 50% of pension. Thus, on the one hand in the case of Junior Engineer, the opinion/proposal of authorities have been taken into account, while in the case of the petitioner the opinion of the Chief Minister has been taken into account and order has been passed for withholding 50% of pension, which is highly discriminatory. Learned counsel for the petitioner further submits that in case of other similarly situated delinquent officials, the then Chief Engineer, who was appointed as enquiry officer submitted inquiry report where findings has been recorded that none of the charges levelled against the officials have been proved and the officials namely Shri Abdul Queum, Assitant Engineer, Shri Ravibhushan, Assistant Engineer, Shri Binod Shrivastava, Executive Engineer, Shri Anil Kumar Singh, Assistant Engineer and Shri Mahadeo Kumhar, Assitant Engineer have been exonerated from the charges. The same has been brought in the supplementary affidavit filed on behalf of the petitioner dated 22.07.2010.