Patna High Court
The State Of Bihar vs Kumar Ajit Singh on 6 February, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1682 of 2018
In
Civil Writ Jurisdiction Case No.18055 of 2018
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1. The State of Bihar, through Chief Secretary, Old Secretary, Govt. of Bihar,
Patna.
2. The Secretary, General Administration Department, Govt. of Bihar, Patna
3. The Additional Secretary, General Administration Department, Govt. Of
Bihar, Patna
4. The Accountant General, Bihar, Patna.
... ... Appellant/s
Versus
Kumar Ajit Singh S/o Late Indradeo Singh R/o B-304, Ssanjana Apartment,
Ara Garden Road, Near Jagdeo Path, Patna-14, P.S.- Danapur, District- Patna
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Gopal Krishna AC To GA-7
For the Respondent/s : Ms. Kalpana, Advocate
For State : Mr. Gyan Prakash Ojha (GA-7)
Ms. Sushmita Ojha, Advocate
Mr. Abhishek Singh (AC to GA-7)
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 06-02-2023
The present L.P.A is preferred by the State of Bihar
against the order of the learned Single Judge dated 21.06.2018
passed in C.W.J.C. No. 18055 of 2010.
2. Brief facts of the case are that respondent - Kumar
Ajit Singh was subjected to disciplinary proceedings on the
alleged allegations that he had committed misdeeds while
holding the post of Executive Magistrate, Pakur in the Treasury
Patna High Court L.P.A No.1682 of 2018 dt.06-02-2023
Office. It is alleged that while handling certain bills matter, he is
stated to have violated various provisions of Bihar Finance
Rules which has resulted in loss of Rs. 3.5 Lakhs. In this regard,
parallel proceedings were initiated like holding of a
departmental inquiry as well as criminal proceedings. In the
criminal proceedings, he is stated to have been acquitted. On the
other hand, departmental inquiry was concluded in imposition
of penalty of cutting in pension to the tune of 20%.
3. Feeling aggrieved by the penalty, respondent is
stated to have filed Review Petition before the Government. The
State Government modified the disciplinary authority's order to
the extent of cutting of pension from 20% to that of 10%. Both
the orders were subject matter of C.W.J.C. No. 18055 of 2010.
The learned Single Judge has taken note of the disciplinary
authority's order and gave a finding that there is non-
compliance to Rule 43(b) of Bihar Pension Rules, 1950 to the
extent that disciplinary authority has not analyzed and given
finding whether charges are grave misconduct or not?
4. Rule 43(b) of Bihar Pension Rules, 1950 reads as
under:-
"The State Government
further reserve to themselves the right
of withholding or withdrawing a
pension or any part of it, whether
Patna High Court L.P.A No.1682 of 2018 dt.06-02-2023
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:
(Underline Supplied)
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) Bihar Public Service
Commission, shall be consulted before
final orders are passed."
Patna High Court L.P.A No.1682 of 2018 dt.06-02-2023
5. Perusal of the disciplinary authority's order, it is
crystal clear that disciplinary authority's order is not in
consonance with the aforementioned provision. Accordingly,
learned Single Judge has set aside the order of punishment dated
17.09.2009 and appellate authority's order dated 08.06.2010.
Feeling aggrieved by the learned Single Judge's order, State has
preferred the present L.P.A.
6. Learned Counsel for the appellant vehemently
contended that having regard to the alleged charges levelled
against the respondent, it is a case for imposition of penalty.
Financial irregularities would fall under the definition of grave
misconduct. Therefore, order of the learned Single Judge is
liable to be set aside.
7. Learned counsel for the appellant on instruction
submitted that during pendency of the present L.P.A., the State
has withdrawn the order of penalty on 03.02.2020 in the light of
M.J.C. No. 5317 of 2018 proceedings, such withdrawal is
subject to L.P.A. decision.
8. Per contra, learned counsel for the respondent
resisted the aforesaid contentions and supported the order of the
learned Single Judge to the extent of disciplinary authority's
order is not in consonance with Rule 43(b) of Bihar Pension
Patna High Court L.P.A No.1682 of 2018 dt.06-02-2023
Rules, 1950. Hence, no interference is invited from the L.P.A.
bench.
9. Heard learned Counsels for the respective parties.
10. Core issue involved in the present lis is whether
order of the disciplinary authority is in order or not and further
whether L.P.A. bench could interfere with the order of the
learned Single Judge or not? From perusal of the disciplinary
authority's order, it is evident that there is no discussion relating
to grave misconduct by the disciplinary authority to the extent
that there is a non-application of mind and so also in
consonance with spirit of Rule 43(b) of Bihar Pension Rules,
1950. Further, we noticed that there is no determination about
amount of loss caused to the State Exchequer by the acts of
respondent. Unless and until loss of any financial nature is
caused by a particular employee and such determination is not
forthcoming in the preliminary inquiry or in the departmental
inquiry, one cannot draw inference that concerned employee
caused financial loss to the State Exchequer. It is only on
presumption that there is loss to the tune of Rs. 3.5 Lakhs as is
evident from the records. Therefore, in the absence of any
finding that respondent has caused financial loss to the State
Exchequer and it has been proved in the departmental inquiry.
Patna High Court L.P.A No.1682 of 2018 dt.06-02-2023
One cannot draw inference that it is a grave misconduct.
Moreover, disciplinary authority has not analyzed whether
proved charge amounts to grave misconduct or not?
11. Question of withdrawing the punishment on
03.02.2020 vide Memo No. 1700 was not warranted for the
simple reason that learned Single Judge has already set aside the
order of penalty dated 17.09.2009 read with 08.06.2010. Orders
which were set aside by this Court cannot be withdrawn by the
State Government, since penalty orders were not existing in the
eye of law as on 03.02.2020.
12. In the light of these facts and circumstances, the
appellants have not made out a case so as to interfere with the
order of the learned Single Judge dated 21.06.2018 passed in
C.W.J.C. No. 18055 of 2010.
13. Accordingly, present L.P.A. stands dismissed.
(P. B. Bajanthri, J)
(Arun Kumar Jha, J)
shoaib/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.02.2023.
Transmission Date NA
