Patna High Court
Anil Kumar vs The State Of Bihar on 6 August, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4671 of 2022
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Anil Kumar Son of Late Ishwer Sharan Lall Resident of Village - 54A,
Anandpuri, West Boring Canal Road, P.S. Srikrishnapuri, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar Through Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary and Commissioner, Commercial Taxes Department,
Government of Bihar, Patna.
3. Mr. Rajesh Gupta, Additional Departmental Inquiry Commissioner cum
Enquiry Officer, Government of Bihar, Patna.
4. The Under Secretary, Commercial Taxes Department, Government of Bihar,
Patna.
5. The Accountant General, Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Akhilesh Dutta Verma, Advocate
For the Respondent/s : Mr. Vikash Kumar ( SC 11 )
Mr. Sri Ram Krishna, AC to SC-11
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 06-08-2024
The petitioner has filed the instant writ petition
under Article 226 of the Constitution praying for issuance of
writ in the nature of mandamus directing the respondent for
payment of leave encashment and gratuity of the petitioner by
way of his retrial dues with interest on and from 31.01.2014,
the date of superannuation of the petitioner and for an
appropriate direction/order/orders/command/commands as
may be deemed fit and proper in the facts and circumstances
of the case and also for any other relief/reliefs for which the
petitioner may found entitled.
Patna High Court CWJC No.4671 of 2022 dt.06-08-2024
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2. For the purpose of adjudication of the instant writ
application, it is necessary to delineate some facts as
hereunder:-
"The petitioner was posted as an Assistant
Commissioner, Commercial Taxes at Ara. Sometimes in the
year, 2007, following an allegation of acceptance of illegal
gratification, the Vigilance Investigation Bureau constituted a
trap and on 31st March, 2007, the petitioner was allegedly
caught red handed while taking bribe by the trap members of
Vigilance Investigation Bureau. A complaint was lodged
against the petitioner by a competent Police Officer at
Vigilance P.S. and on the basis of the said complaint,
Vigilance Case No. 44 of 2007 under section 7/13(2) read
with section 13(1)(d) of the Prevention of Corruption Act,
1988 was registered. Since the petitioner was arrested and
subjected to a criminal proceeding, a departmental proceeding
was started on 28th May, 2008 on the basis of an information
that the petitioner was arrested in Vigilance P.S. Case No. 44
of 2007 while accepting bribe. The said departmental
proceeding was continuing and in the meantime, w.e.f. 31 st
January, 2014, the petitioner retired from service on
attainment of age of sixty years. On his retirement, the
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departmental proceeding pending against him was converted
to a proceeding under section 43(b) of Bihar Pension Rules.
On 22nd July, 2016, finally the petitioner was awarded major
punishment by virtue of which his full pension was stopped.
He was also denied payment of gratuity and leave
encashment. It is contended by the petitioner that during the
period between 31st March, 2007 and 31st July, 2018, he did
not get any amount except the subsistence allowance."
3. The said order of punishment dated 22nd July,
2016 was challenged by the petitioner in CWJC No. 19030 of
2016. The said writ petition was disposed of by a Co-ordinate
Bench of this Court vide an order dated 28 th February, 2019
with the following observation:-
"There is no statement that
thereafter petitioner was supplied with the
documents which were required by him in
the proceedings. Admitted position that
emerges from the pleadings on record is
that documents requested by petitioner were
not supplied to him. It is also clear that
authorities had not rejected copies of the
documents by assigning any reasons.
For non compliance of the
procedure prescribed under Rule 17(11) of
the Bihar CCA Rules, 2005, order passed
Patna High Court CWJC No.4671 of 2022 dt.06-08-2024
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under Rule 43(b) of the Bihar Pension
Rules stands vitiated. Neither the
documents were made available nor any
opportunity was given to the petitioner to
inspect or examine the same. No issue has
been raised regarding documents being
requested by the petitioner as being
unnecessary or irrelevant for the purpose of
enquiry. In view of such situation,
proceedings against the petitioner suffered
on account of violation of the procedure
prescribed under Rule 17(11) of the Bihar
CCA Rules, 2005.
Learned counsel for the
respondent State in the proceedings today
has objected to the petitioner's
approaching this Court directly without
following the procedure of Rule 24(2) of the
Bihar CCA Rules, 2005. He submits that
this Court may not exercise its jurisdiction
in favour of the petitioner for such matter
where the statutory alternative remedy is
available to him. In the instant case,
procedural lapse stands admitted from the
pleadings available on the record.
The instance of procedural lapse
in the departmental proceedings was taken
note of by this Court in the earlier writ
proceedings arising out of C.W.J.C.No.
12017 of 2010. As such, this Court would
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not consider it appropriate to relegate the
petitioner to the statutory alternative
remedy, more so in view of the fact that the
departmental proceedings remained
pending for such a long time in spite of
specific direction of this Court.
Order dated 22.7.2016 stands
quashed. This Court would observe that it
would be open to the respondents to
proceed against the petitioner afresh after
considering the petitioner's claim for
documents requested for by him.
In view of the delay already
having occurred in the
instant proceedings, this Court
would observe that if the respondents
propose to proceed against the petitioner
after complying with the said requirements,
the same should be done positively within a
period of three months.
The issue of consequential
arrears only, payable to the petitioner
would abide by the proceedings to be
conducted against the petitioner. Current
pension, however shall be paid to the
petitioner within four weeks from the date
of receipt/production of a copy of this order.
If the respondents fail to proceed
in accordance with law within the aforesaid
period, consequential arrears should also
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be paid to the petitioner on lapse of three
months.
Writ petition stands allowed."
4. The instance of procedural lapse in the
departmental proceeding was taken note of by this Court in
earlier writ proceedings arising out of CWJC No. 12017 of
2010. As such, this Court would not consider it appropriate to
relegate the petitioner to the statutory alternative remedy,
more so in view of the fact that the departmental proceedings
remained pending for such a long time inspite of specific
direction of this Court.
5. Order dated 22nd July, 2016 stands quashed.
6. This Court would observe that it would be open
to the respondents to proceed against the petitioner afresh
after considering the petitioner's claim for documents
requested for by him.
7. In view of the delay already having occurred in
the instant proceedings, this Court would further observe that
if the respondents propose to proceed against the petitioner
after complying with the said requirements, the same would
be done positively within a period of three months.
8. The issue of consequential arrears only, payable
to the petitioner would abide by the proceedings to be
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conducted against the petitioner. Current pension, however
shall be paid to the petitioner within four weeks from the
receipt/production of a copy of this order.
9. If, the respondents failed to proceed in
accordance with law within the aforesaid period,
consequential arrears should also be paid to the petitioner on
lapse of three months.
10. It is submitted at the outset by the learned
Advocate for the petitioner that as per the ultimate direction
made in CWJC No. 19030 of 2016, the petitioner was not paid
consequential arrears even after the lapse of three months as
directed by the Writ Court. After the said order having been
passed in CWJC No. 19030 of 2016, the petitioner submitted
a representation on 19th July, 2019 requesting the respondents
for payment of his arrear salary, gratuity and leave
encashment. On 14th June, 2019, a fresh departmental
chargesheet was issued against the petitioner after expiry of
about twelve years from the date of the alleged incident. The
petitioner was directed to submit reply to the show cause. He
duly submitted his reply on 04th July, 2019. The said reply to
the show cause was not accepted and departmental proceeding
was initiated de novo against him.
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11. It is submitted by the learned Advocate on
behalf of the petitioner that the departmental proceeding
suffers from delay and latches on the part of the respondents.
The respondents did not have any authority to institute de
novo departmental enquiry on 14th June, 2019 i.e. after a lapse
of about four months from the date of passing of the order in
CWJC No. 19030 of 2016. The Department was directed to
take step after complying all requirements to initiate
departmental proceeding positively within a period of three
months. On expiry of three months, the respondents cannot
initiate the departmental proceeding.
12. It is also submitted by the learned Advocate for
the petitioner that the memorandum of charge (Annexure-D to
the counter affidavit) does not contain any list of witnesses to
be examined during the departmental proceeding to prove the
documents proposed to be relied upon during the departmental
proceeding. Thus, the impugned memorandum of charge was
formulated in violation of Rule 17(3), 17(4) and 17(5) of the
Bihar Government Servants (CCA) Rules, 2005 (hereinafter
described as CCA Rules, 2005 for short).
13. The learned Advocate on behalf of the petitioner
has also challenged the departmental proceeding on the
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ground that after filing of the chargesheet, the petitioner
submitted his reply to the show cause notice but the said reply
of the petitioner was not considered before initiation of
departmental proceeding on 2nd August, 2019. No objective
observation was made denying acceptance of the reply to the
show cause notice. Under such circumstance, the petitioner
has prayed for issuance of writ of mandamus commanding the
respondents to stop the departmental proceeding which is
vitiated by delay and latches as well as against the rule and
regulations laid down in Bihar Pension Rules.
14. In support of his contention, he first refers to a
decision of the Hon'ble Supreme Court in the case of State of
Bihar and Ors vs Md. Idris Ansari reported in 1995 SUPP.
(3) SCC 56. In paragraph 10 of the said judgment, it is
observed by the Hon'ble Supreme Court that the allegation of
grave misconduct will have to be culled out by the revisional
authority from the departmental proceedings or judicial
proceedings which might have taken place during his service
tenure or from departmental proceeding which may be
initiated even after his retirement. But such departmental
proceeding will have to comply with the requirement of Rule
43(b) of the Bihar Pension Rules. Consequently, a retired
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government servant can be found guilty of grave misconduct
during his service period pursuant to the departmental
proceedings conducted against him even after his retirement,
but such proceedings could be initiated in connection with
only such misconduct which might have taken place within
four years of the initiation of such departmental proceeding
against him (emphasis supplied by me). Thus, plain reading of
the observation of the Hon'ble Supreme Court clearly states
that the departmental proceeding under Rule 43(b) shall have
to be instituted within four years of an event for which the
petitioner was subjected to departmental proceeding. Initiation
of proceeding under section 43(b) is subjected to the
following proviso:-
"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
Patna High Court CWJC No.4671 of 2022 dt.06-08-2024
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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."
15. Thus, as per Rule 43(b)(ii), a departmental
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proceeding under Rule 43(b)(ii) shall be in respect of an event
which took place not more than four years before institution
of such proceedings. In the instant case, the departmental
proceeding under Rule 43(b) was initiated after lapse of about
twelve years. On this Counts, it is submitted by the learned
Advocate on behalf of the petitioner that the departmental
proceeding is bad in law and liable to be quashed.
16. On the application of Rule 43(b) of the Bihar
Pension Rules, the learned Advocate for the petitioner refers
to a Division-Bench judgment in the case of Nityanand
Kumar Singh vs the State of Bihar and Ors reported in 2016
2 PLJR 315. In this report, the Division-Bench of this Court
have the occasion to discuss the essential and inherent
difference of Rule 43(a) and 43(b). It is held by the Division-
Bench that there is a clear distinction between aim and object
of Rule 43(a) and that of Rule 43(b) and both the provisions
operate in different areas having different connotation.
Decision under Rule 43(a) is not on account of any
departmental proceeding or judiciary proceeding. The purpose
of the provisos to Rule 43(b) is to safeguard the pensioners or
superannuated employees from loss of pension on account of
belated disciplinary or judicial proceedings. Rule 43(b) is
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governed by its proviso as it can apply only to initiation of
departmental proceeding by the Government after an
employee has retired. On the same point, the learned Advocate
for the petitioner also refers to the Full Bench decision of this
Court in the case of Arvind Kumar Singh vs. The State of
Bihar & Ors reported in 2018 (2) PLJR 933. It is held by the
Full Bench of this Court that Rule 43(b) is only applicable in
such cases where the employee is convicted or found guilty of
misconduct. It is only after a finding of guilt is recorded in the
departmental or judiciary proceeding that action could be
taken for withholding pension in part or full.
17. In the instant case, the order of punishment
passed by the department against the petitioner was quashed
by this Court in CWJC No. 19030 of 2016. Therefore,
institution of a proceeding under section 43(b) was illegal,
unjust and unfair, especially after expiry of the period granted
by this Court.
18. Lastly, the learned Advocate for the petitioner
refers to an unreported decision of this Court in the case of
Sumit Kumar Bhhatacharya vs State of Bihar and Ors in
CWJC No. 7243 of 2021 decided on 18th July, 2024. In the
aforementioned decision, the Court elaborately discussed the
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applicability of the proviso to Rule 43(b). This Court refers to
its discussion made in CWJC No. 7243 of 2021 in paragraphs
9 to 15:-
"9. Rule 43(b) of the Bihar
Pension Rule is curtailed by the following
proviso:
"(a) departmental proceedings
under Rule 43(b) shall not be instituted
save with the sanction of the State
Government, if not instituted while the
Government servant was on duty either
before retirement or during re-employment.
(ii) such proceeding under Rule
43(b) shall be in respect of an event which
took place not more than four years before
the institution of such proceedings; and
(iii) such proceeding 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."
10. Thus, proviso to Rule 43(b)(a)
(i) clearly states that a proceeding under
Rule 43(b) cannot be initiated except with
the sanction of the State Government. The
sanction of the State Government is a
precondition for initiation of a proceeding
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under Rule 43(b) of the Bihar Pension
Rules.
11. It is needless to say that
conversion of a proceeding under Rule
43(a) to 43(b) cannot be made automatic in
the absence of sanction of the State
Government. Sanction of any proceeding,
be it departmental or judicial implies
application of mind by the sanctioning
authority. The sanctioning authority has the
duty to consider a case objectively before
obtaining sanction for initiation of
departmental proceeding under Rule 43(b).
On his objective satisfaction on the basis of
materials on record, he shall pass the order
of sanction of departmental proceeding
under Rule 43(b).
12. In the instant case, the
respondents fail to produce the order of
sanction for initiating proceeding under
Rule 43(b) of the Bihar Pension Rules
against the petitioner.
13. The factual aspect of the case
shows that the petitioner was prosecuted in
fodder scam in the year 1996. He was held
guilty of charges under different penal
provisions of the I.P.C. and the Prevention
of Corruption Act, details of which has
been narrated herein before. The order of
conviction and punishment passed against
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the petitioner is under appeal before the
Jharkhand High Court and the said appeal
is still pending.
14. The petitioner had been
superannuated w.e.f. 30.09.2014 while he
was serving as Assistant Commissioner,
Commercial Taxes, Bihar at Patna.
Commissioner of Taxes- cum-Secretary,
Department of Commercial Tax Department
issued order of initiation of proceeding
under Rule 43(b) against the petitioner on
26.12.2020
, i.e. after six years of
superannuation of the petitioner. The
alleged incident of fodder scam took place
in the year 1995-96. Thus, the proceeding
under Rule 43(b) was initiated in respect of
an event which took place about 24 years
before the institution of such proceeding.
Therefore, the departmental proceeding
under Rule 43(b) is not maintainable in
view of the provision contained in proviso
(ii) to sub-clause (a) of clause (b) of Rule
43 of the Bihar Pension Rules, 1950.
15. For the reasons stated above,
this Court holds that proceeding under Rule
43(b) is not applicable against the
petitioner under the facts and
circumstances of the case. The order passed
by the respondent Authority on 26.12.2020
and communicated vide Memo No.Con/v-
Patna High Court CWJC No.4671 of 2022 dt.06-08-2024
121/2003/58/C-Patna dated 20.07.2021 are
quashed and set aside."
19. Learned Advocate on behalf of the respondents,
on the other hand, refers to the statement made by him in
paragraphs 5, 6, 7 and 8 of the original counter affidavit
wherein it is submitted on behalf of the respondents that
initially, the respondents filed counter affidavit on 18 th July,
2022 but it was misplaced from the office of the Standing
Counsel 11 and with the permission of the Court, by way of a
supplementary counter affidavit, the original counter affidavit
has been filed. I have perused the entire counter affidavit as
well as the supplementary affidavit. Before initiation of the
departmental proceeding under Rule 43(b), the disciplinary
authority did not consider the proviso to Rule 43(b), no
government's sanction was obtained before initiation of
disciplinary proceeding. The proceeding under Rule 43(b) was
initiated after a lapse of about twelve years of the alleged
incident, no witness was cited to prove the departmental
charge and the departmental proceeding was being continued
by the respondents only to assure that the delinquent officer
may not get his retiral benefits.
20. In view of the above discussion and the finding
of the Hon'ble Supreme Court as well as this Court by the
Patna High Court CWJC No.4671 of 2022 dt.06-08-2024
Division Bench, Full Bench and the present Bench, there is no
other alternative but to quash the departmental proceeding
initiated de novo against the petitioner on 14th June, 2019.
21. Accordingly, the departmental proceeding
against the petitioner is quashed and set aside.
22. The petitioner is entitled to get all pensionary
benefits and consequential reliefs.
23. The respondents are directed to release the same
within forty-five days from the date of this order.
24. However, there shall be no order as to costs.
(Bibek Chaudhuri, J)
kiran/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 08.08.2024
Transmission Date
