Malay Kumar Singh vs The Bihar State Power Holding ...
2021 Latest Caselaw 4197 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8599 of 2017
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Malay Kumar Singh Son of Dhir Narayan Singh Resident of M.I.G. House No. 338, Kankarbagh Colony, P.O. Lohiyanagar P.S. Kankar Bagh, District Patna.

... ... Petitioner Versus

1. The Bihar State Power Holding Company Limited

2. The Secretary, the Bihar State Power Holding Company Limited Vidyut Bhawan, J.L. Nehru Marg, Patna.

3. The Joint Secretary, the Bihar State Power Holding Company Limited Vidyut Bhawan, J.L. Nehru Marg,

4. The Chief Engineer Supply and Distribution, the Bihar State Power Holding Company Limited Vidyut Bh

5. Chief Engineer, Planning, the Bihar State Power Holding Company Limited Vidyut Bhawan, J.L. Nehru M ... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. Manendra Kumar Sinha, Advocate Mr. Anirudha Kumar, Advocate For the Respondents : Mr. Vinay Kirti Singh, Senior Advocate Mr. Bijay Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 21-08-2021

The petitioner is son of one Dhir Narayan Singh, who

retired from the service of erstwhile Bihar State Electricity Board

as Executive Engineer with effect from 01.02.1996. He was

granted monthly pension at the rate of 75 percent, withholding 25

percent, admittedly by way of punishment, in exercise of power

under Rule 43(b) of the Bihar Pension Rules.

2. Petitioner's father had earlier approached this Court

by filing writ petition giving rise to C.W.J.C. No. 694 of 2013. Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

During the pendency of the said writ petition, the petitioner's

father died.

3. It appears from an order dated 01.09.2016 passed in

the aforesaid C.W.J.C. No. 694 of 2013 that the said matter was

adjourned on several dates so as to enable substitution. As learned

counsel for the petitioner, who was representing the petitioner in

that case, did not receive any instructions, the writ petition abated

and stood disposed of accordingly.

4. The petitioner has now filed the present writ

application seeking the same relief, as was sought in C.W.J.C. No.

694 of 2013. He is seeking quashing of punishment order bearing

Resolution No. 208 dated 28.01.2000, whereby it was decided to

withhold 25 percent of pension and 25 percent of gratuity

permanently upon conclusion of a departmental enquiry. Appeal

against the said order was also dismissed by an order

communicated vide Memo. No. 2061 dated 01.10.2012, which is

being challenged in the present writ application.

5. This is to be noted that the Bihar State Electricity

Board has hence been reconstituted and restructured into various

companies including Bihar State Power Holding Company

Limited (respondents herein).

Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

6. There is averment in paragraph 6 of the writ petition

to the effect that the order of punishment was never communicated

to the petitioner's father and, therefore, he could not prefer an

appeal. The petitioner has brought on record a representation filed

by the petitioner's father on 11.02.2010 addressed to the Joint

Secretary, Bihar State Electricity Board for reconsideration of the

order of punishment of withholding of pension. No where, in his

representation, it is mentioned that the order of punishment was

not served upon him. The petitioner's father had made a

representation before the Chairman of Bihar State Electricity

Board on 28.04.2010, wherein also he did not raise any objection

to the effect that the order of punishment was not served upon him.

The said representation dated 28.04.2010, rather discloses that the

petitioner's father raised a grievance that the said appeal was being

preferred belatedly because the pension was sanctioned, few

months ago. For the first time, the petitioner's father, in his

subsequent representation dated 17.08.2012 addressed to the

Chairman, asserted that till that date, the order of punishment had

not been communicated/supplied/handed over to him and,

therefore, he could not prefer any appeal against the order of

punishment.

Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

7. The appeal filed by the petitioner's father was

dismissed by an order issued vide Memo No.2016 dated

01.10.2012 on the ground that the same was belated.

8. This fact is not in dispute that the petitioner's father

was proceeded against departmentally vide a Resolution No. 1542

dated 03.08.1992 on the charge of defalcation of a sum of

Rs.15,000/-. The enquiring authority, in his report, held that the

charges against the petitioner's father could not be said to have

been proved. The disciplinary authority, however, found that

charge No. 3 and 4 against the petitioner's father stood proved on

the basis of materials available on the record of the departmental

enquiry. Accordingly, disagreeing with the finding of the enquiring

officer in respect of charge No. 3 and 4 and after discussing the

reasons why said charges were found to be proved, a second show

cause notice was issued to the petitioner's father asking him to

reply as to why appropriate punishment be not imposed upon him

by withholding 25 percent of pension.

9. It is the case of the petitioner in this writ application

that though his father had been visiting the office of the Board

regularly for payment of his post retirement dues, but he was never

communicated about passing of order under Rule 43(b) of the

Pension Rules. It has been stated, on the other hand, in the counter Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

affidavit filed on behalf of the Board that as the father of the

petitioner had failed to reply to the second show cause notice, he

was regularly reminded in this regard. A copy of the enquiry report

was supplied to the father of the petitioner. After supply of the

enquiry report as demanded by the petitioner's father, reminder

was sent, but he did not reply and accordingly, on the basis of

materials on record, the proposed punishment of withholding of 25

percent of pension was confirmed by Board's Resolution No. 208

dated 28.01.2000, which was communicated to the petitioner's

father.

10. The statement made in the writ petition that the

punishment order was not communicated to the petitioner's father

has been specifically denied in the counter affidavit. A

supplementary affidavit has been filed on behalf of the petitioner,

wherein it has been stated that the deceased employee had two

issues, namely, the petitioner and his brother Kishlay Kumar

Singh, who are living separately and the petitioner has obtained a

family certificate showing his status as the son of deceased retired

employee. It has been stated that there is mutual understanding

between the petitioner and his brother to pursue this matter. Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

11. A reply has been filed to the counter affidavit

reiterating the plea that the final order passed by the disciplinary

authority was never communicated to the petitioner's father.

12. When the matter was taken up on 25.06.2021, this

Court had directed the Power Holding Company to inform whether

the order imposing punishment of withholding of 25 percent of

pension was in fact communicated. In pursuance thereof, a

supplementary counter affidavit has been filed stating therein that

the file of the departmental proceeding could not be located since

the departmental proceeding was initiated in 1994-95 and the order

of punishment was passed on 28.01.2000. It has been asserted in

the writ petition that though the appeal was dismissed on

19.07.2010, the petitioner's father approached this Court more

than two years thereafter.

13. Learned counsel appearing on behalf of the

petitioner has submitted that the action of the imposition of

punishment of withholding of 25 percent of pension on the

petitioner's father is wholly arbitrary and in violation of the

principles of natural justice. He has argued that the disciplinary

authority, after having made up his mind to impose punishment,

issued second show cause notice, disagreeing with the report of the

enquiring authority and recording his own finding that charges No. Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

3 and 4 stood proved. He has submitted that the impugned order of

imposition of punishment of withholding of pension suffers from

prejudice and bias. He has urged that as the order of punishment

was not communicated to the petitioner's father, his appeal ought

not to have been rejected by the appellate authority on the ground

of delay.

14. Mr. Vinay Kirti Singh, learned Senior Counsel

appearing on behalf of the respondents has submitted that the

petitioner's father admittedly did not respond to the second show

cause notice and, therefore, he cannot raise the point of violation

of principles of natural justice. He has further submitted that both,

the petitioner and his father, have not been diligent enough in

pursuing this matter before this Court as is evident from the

records and, therefore, this Court may decline to allow relief as

sought for by the petitioner.

15. Whether the order of the disciplinary authority

imposing punishment of withholding of pension was ever

communicated to the petitioner's father is one of the main issues

involved in the writ petition. This is for the reasons that the appeal

was dismissed on the ground of delay and now the petitioner is

taking a plea that the petitioner's father could not have preferred Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

appeal in the absence of order of punishment communicated to

him.

16. The order of punishment was passed admittedly on

28.01.2000. For the reasons best known to the parties, the pension

was sanctioned in favour of the petitioner's father in 2009. The

petitioner's father had filed representation before the Joint

Secretary of the Board on 11.02.2010. In his representation, he did

not assert that the order of punishment was not served upon him,

rather he wanted the order of punishment to be recalled. In his

representation dated 11.02.2010, in the nature of appeal before the

Chairman, the petitioner's father did not take a plea that copy of

the order was not served upon him. The appeal preferred by the

petitioner's father was rejected on the ground of delay. After

rejection of the appeal, the petitioner's father again submitted

representation on 17.08.2012, wherein he, for the first time, raised

a plea that the order of punishment was never communicated to

him. The belated plea on the part of the petitioner's father of non-

supply of order of punishment for the first time made nearly 12

years after passing of the order of punishment is not acceptable to

this Court.

17. Further, apparently the petitioner's father approached

this Court much after passing of the order by the appellate Patna High Court CWJC No.8599 of 2017 dt.21-08-2021

authority, which was not pursued by his heirs after his death

leading to abatement of the writ petition, as noted above.

18. In the aforesaid circumstances, considering all the

facts and circumstances taken together, I do not find it to be a fit

case for this Court's interference exercising power under Article

226 of the Constitution of India.

19. This application is accordingly dismissed being

devoid of merit.

(Chakradhari Sharan Singh, J) Pawan/-

AFR/NAFR                N.A.F.R.
CAV DATE                N/A
Uploading Date          24.08.2021.
Transmission Date       N/A