Patna High Court
Md. Jafar Rakib @ Md. Zafar Rakib vs The State Of Bihar on 2 May, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.651 of 2023
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Md. Jafar Rakib @ Md. Zafar Rakib S/o Late Abdur Rakib, Resident of
Village - Chhoti Masjid Lane, Hassan Colony Sipahi Tola, Rose Cottage P.S. -
K. Hat, District - Purnea.
... ... Petitioner
Versus
1. The State of Bihar through the Addl. Chief Secretary General Administration
Department, Bihar, Patna.
2. The Additional Secretary General Administration Department, Bihar, Patna.
3. The Joint Secretary General Administration Department, Bihar, Patna.
4. The Accountant General, Bihar, Patna.
5. The Addl. Chief Secretary Finance Department, Bihar, Patna.
6. The Special Executive Officer, General Administration Department Bihar,
Patna.
7. The District Magistrate, Katihar.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Subodh Kumar Jha, Advocate
Mr. Prakash Mahto, Advocate
Mr. Jawed Ahmad, Advocate
For the Respondent/s : Mr. Md. Irshad, AC to SC-1
For the AG : Mr. Dr. Anand Kumar, Advocate
Mr. Rajan Prakash, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date : 02-05-2023
Heard learned counsel for the petitioner and learned
counsel for the State.
2. Petitioner in the present case is seeking payment of
his post-retiral benefits i.e. gratuity, unutilised leave encashment,
differences of salary for the period of suspension, subsistence
allowance from the date of suspension i.e. 25.07.2018 to the date
of revocation i.e. 30.06.2020, earned leave from 27.05.2018 to
02.07.2018 and other consequential benefits with panel interest.
Patna High Court CWJC No.651 of 2023 dt.02-05-2023
3. Learned counsel for the petitioner submits that the
petitioner was a member of the Bihar Administrative Service who
vide Memo No. 27 dated 30.06.2020 issued under signature of
Additional Secretary of the Government, General Administration
Department, Bihar, Patna was proceeded against in a disciplinary
proceeding. He was facing prosecution at the instance of a sub-
ordinate staff who alleged that the petitioner had committed an
offence under Section 377 of the Indian Penal Code and had
lodged Nagar Sahayak, Katihar P.S. Case No. 318 of 2018.
4. It is stated that the petitioner was suspended from
service vide Memo No. 9899 dated 25.07.2018. Admittedly, the
petitioner had been promoted to the post of Additional Secretary
vide Resolution No. 8223 dated 20.06.2018 but till 25.07.2018 i.e.
the date on which he was placed under suspension, he could not
join on the promoted post.
5. Learned counsel submits that the petitioner attained
his age of superannuation on 30.06.2020, his suspension was
revoked in the first half of 30.06.2020 and on the same day, the
petitioner submitted his joining on his promoted post.
6. Learned counsel further submits that in the
disciplinary proceeding which continued after retirement of the
petitioner, the competent authority decided to forfeit/deduct 20%
Patna High Court CWJC No.651 of 2023 dt.02-05-2023
of the pension of the petitioner for five years. The order of
punishment was passed vide Department's Resolution No. 7286
dated 17.05.2022. A review preferred by the petitioner against the
order of punishment failed vide Resolution Memo No. 12128
dated 18.07.2022.
7. Learned counsel submits that the order of punishment
against the petitioner has been set aside by this Court in CWJC
No. 482 of 2023 and the disciplinary authority has been directed to
take a fresh decision within a period of four months.
8. Learned counsel submits that prior to passing of the
order withholding 20% pension of the petitioner, the competent
authority had sanctioned provisional pension to the extent of 90%
on the ground that the disciplinary proceeding was still pending
against the petitioner. It is the grievance of the petitioner that even
though the petitioner had submitted his joining as an Additional
Secretary, the petitioner is not being treated on the said post and
the benefits of the said post is not being made available to the
petitioner.
9. A counter affidavit has been filed on behalf of the
State. According to the counter affidavit, the amount equal to
unutilised earned leave of the petitioner has been sanctioned in his
favour vide Department's Order No. 11650 dated 08.12.2020. An
Patna High Court CWJC No.651 of 2023 dt.02-05-2023
order contained in Department's Letter No. 11652 dated
08.12.2020 has been issued for payment of group insurance in
favour of the petitioner.
10. As regards the treatment of the period of suspension
is concerned, it is stated that the petitioner's application in this
regard has been examined by the disciplinary authority and the
disciplinary authority has vide Resolution contained in Memo No.
19541 dated 03.11.2022 decided to treat the suspension period of
the petitioner in the following manner:-
(i) for the period of suspension nothing would be
admissible to the petitioner save and except subsistence allowance
and (ii) the period of suspension would be referred for the purpose
of pension only.
11. As regards demand of the petitioner for
increment/fixing equivalent pension after his joining on the
promoted post on 30.06.2020 is concerned, it is the stand of the
respondents that the suspension of the petitioner was revoked vide
Department's Resolution Memo No. 633 dated 30.06.2020 w.e.f.
the afternoon of 30th June, 2020 which means that he remained
under suspension till 30.06.2020 i.e. till his date of retirement,
therefore, his joining application dated 30.06.2020 in the
Department was infructuous.
Patna High Court CWJC No.651 of 2023 dt.02-05-2023
12. At this stage, learned counsel for the petitioner has
relied upon the Rule 58 of the Bihar Service Code to submit that
because the petitioner was deprived from submitting his joining
because of the reasons beyond his control, the respondents are
obliged to accept his joining simultaneously with the order of
revocation of suspension of the petitioner.
13. On the other hand, on this point, learned counsel for
the State submits that the monetary benefits of the promotional
post would have been admissible to the petitioner only upon his
submitting joining on the said post and because in this case, the
petitioner had not joined the promoted post between 20.06.2018
and 25.07.2018 and he remained under suspension till the date of
his retirement, he would not be entitled for the benefit of the post
of Additional Secretary.
14. Having heard learned counsel for the petitioner and
the State as also on perusal of the records, this Court finds that so
far as the order of punishment of withholdment of 20% pension for
5 years of the petitioner is concerned, the same has already been
set aside by this Court and the matter has been remitted to the
competent authority.
15. In view of the setting aside of the order of
punishment imposed upon the petitioner, the respondent
Patna High Court CWJC No.651 of 2023 dt.02-05-2023
authorities are liable to consider payment of his pensionary
benefits in accordance with Rules. So far as the other claims of the
petitioner are concerned, the petitioner is at liberty to file a
representation before the competent authority raising his claims
which should be supported by material particulars and the
petitioner would be at liberty to make a submission before the
competent authority on the applicability of Rule 58 of the Bihar
Service Code.
16. This Court, therefore, grants liberty to the petitioner
to file a detail representation before the Additional Chief Secretary,
General Administration Department, Government of Bihar
(respondent no. 1) within a period of one month from today which
will be considered after giving an opportunity of hearing to the
petitioner and an appropriate order shall be passed by respondent
no. 1 within three months from the date of receipt of the
representation.
17. This writ application stands disposed of accordingly.
(Rajeev Ranjan Prasad, J)
lekhi/-sushma/-
AFR/NAFR
CAV DATE
Uploading Date 04.05.2023
Transmission Date
