Patna High Court
Ram Binay Tiwary vs The State Of Bihar And Ors on 16 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.751 of 2019
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Ram Binay Tiwary, Son of Late Sukhdeo Tiwary Resident of Village- Paroo
Mathiya, P.O.- Paroo, P.S.- Paroo, District- Muzaffarpur, the retired Panchayat
Secretary Gram Panchayat Raj, Belahi Lachhi, Block- Minapur, District-
Muzaffarpur
... ... Petitioner/s
Versus
1. The State Of Bihar through the Chief Secretary, Government of Bihar, Patna
2. The Principal Secretary, Revenue and Land Reforms Department,
Government of Bihar, Patna
3. The Divisional Commissioner, Tirhut Division, Muzaffarpur
4. The District Magistrate, Muzaffarpur, District- Muzaffarpur
5. The Block Development Officer, Minapur, District- Muzaffarpur
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mrs. Anita Kumari, Adv.
For the Respondent/s : Mr. Raj Kishore Roy, Adv.
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 16-01-2024
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The present writ petition has been filed for
quashing of the order dated 13.06.2018 passed by the District
Magistrate, Muzaffarpur (respondent no.4) and communicated
to the petitioner under Memo No. 1184 dated 14.06.2018
annexed as Annexure-8 issued under the signature of the
respondent no.4, whereby and where under, the punishment of
withholding 40% pension of the petitioner for five years has
Patna High Court CWJC No.751 of 2019 dt.16-01-2024
2/7
been awarded. Further prayer has also been made to quash the
aforesaid impugned order dated 13/14.06.2018 passed by the
respondent no.4.
3. Learned counsel for the petitioner submits that
the order under challenge dated 13.06.2018 has been passed on
13.06.2018
contained in Memo No. 1184 dated 14.06.2018
which has been passed by the District Magistrate, Muzaffarpur.
Counsel also submits that the petitioner was admittedly retired
on 31.03.2016 and the punishment order has been passed on
13/14.06.2018 i.e. after petitioner's retirement. Counsel further
submits that for passing order in the departmental proceeding
after retirement, it is necessary to convert the departmental
proceeding under Bihar Government Servants (Classification,
Control & Appeal) Rules, 2005 (hereinafter referred to as 'CCA
Rules, 2005) into proceeding under Rule 43(b) of the Bihar
Pension Rules, 1950.
4. Learned counsel for the petitioner submits that
from the said order dated 14.06.2018, there is no whisper by
which it transpires that the said order has been passed under
Rule 43(b) of the Bihar Pensions Rules, 1950. Counsel further
submits that the provision of Rule 139 of the Bihar Pension
Rules, 1950 has been quoted in the said order. Counsel also
Patna High Court CWJC No.751 of 2019 dt.16-01-2024
submits that even it has been assumed that the said order has
been passed under Rule 43(b) of Bihar Pension Rules, 1950,
then also this order passed by the District Magistrate,
Muzaffarpur is not sustainable due to the reason that under Rule
43(b) of the Bihar Pension Rules, 1950, the order has to be
passed by the State Government and not by the Collector.
Counsel for the petitioner relied on the judgment of this Hon'ble
Court in case of Uday Sharma Vs. The State of Bihar & Ors.
passed in Letters Patent Appeal No. 1473 of 2019 arising out
of Civil Writ Jurisdiction Case No. 17311 of 2019.
5. Learned counsel for the State on the other hand
submits that the punishment order has been passed vide Memo
No.08 dated 06.01.2017 annexed as Annexure-3 by the
Collector against which the petitioner has preferred service
appeal which was remanded back vide order dated 30.03.2017
by the Commissioner and upon remand, the collector passed the
order on 14.06.2018 which has been challenged before this
Hon'ble Court. Counsel also submits that the petitioner ought to
prefer appeal before the Commissioner again and due to this
reason alone, the writ petition may not be entertained.
6. In the light of the submissions made above and
upon perusal of the case record, it transpires to this Court that
Patna High Court CWJC No.751 of 2019 dt.16-01-2024
contention of the State is correct up to that extent that the
present order under challenge has been passed by the Collector
and therefore, appeal has to be preferred, but this is not a normal
circumstance, rather, there is a jurisdictional error in passing the
said order due to the reason that District Magistrate has passed
the order of punishment after retirement under CCA Rules, 2005
which is not permissible. Rather, after retirement, the
disciplinary proceeding must have to switch over according to
Bihar Pension Rules, 1950 whose Rule 43(b) categorically
states that order ought to be passed by the State Government,
but here, there is a lacking of that.
7. As such, this Court is of the opinion that there is
jurisdictional error in passing the order dated 14.06.2018 which
is challenged here in the present case.
8. The order passed in the case of Uday Sharma
(supra), it is relevant to quote paragraph nos. 10 and 11 which
are quoted here as under:-
"10. Further, we notice that the
District Magistrate is not the
competent authority to impose the
penalty while invoking Rule 43(b) of
the Bihar Pension Rules, 1950. Rule
43(b) of the Bihar Pension Rules,
reads as under:-
"43(b): The State Government
further reserve to themselves the
Patna High Court CWJC No.751 of 2019 dt.16-01-2024
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
service including service rendered on
re-employment after retirement:
Provided that -
(underline supplied)
(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 as 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
Patna High Court CWJC No.751 of 2019 dt.16-01-2024
accordance with sub-clause (ii) of
clause
(a); and
(c) the Bihar Public Service
Commission, shall be consulted
before final orders are passed."
(underline supplied)
"11. Reading of the aforementioned
provision, it is evident that State
alone is the competent authority to
impose the penalty under Rule 43(b)
of Bihar Pension Rules, 1950 for the
reasons that there is no
delegation/sub-delegation of power
is vested with any other authorities
so as to District Magistrate stepping
into shoe of the disciplinary
authority insofar as invoking Rule
43(b) of Bihar Pension Rules, 1950,
even on this count, impugned order
of the District Magistrate is liable to
be set aside. These two issues would
go to the root of the matter so as to
interfere with the District Magistrate
order dated 26.02.2019 insofar as
imposition of penalty. The learned
Single Judge has not taken note of
the provision of Rule 43(b) of Bihar
Pension Rules, 1950, explanation of
the appellant on the Inquiry Officer's
report read with show cause notice
and it is not a speaking order.
Moreover, Bihar Public Service
Commission has not been consulted
in the light of the aforementioned
provision, as it is mandatory."
Patna High Court CWJC No.751 of 2019 dt.16-01-2024
9. In this view of the matter that the order passed by
the District Magistrate suffers from defect of jurisdiction and
hence, this Court set aside the Memo No. 1184 dated 14.06.2018
annexed as Annexure-8 passed by the District Magistrate,
Muzaffarpur (respondent no.4) with liberty to the respondent to
take fresh decision in the light of the law of the land within 90
days from the date of production of the order.
10. With the aforesaid observations, this writ
petition is hereby disposed off.
(Dr. Anshuman, J.)
Divyansh/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 18 /01/2024
Transmission Date NA
