Patna High Court
Kamal Kishor Prasad Singh vs The State Of Bihar And Ors on 2 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4529 of 2018
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Kamal Kishor Prasad Singh S/o Late Siya Sharan Singh, resident of Mufti
Muhala Nakhas, Hajipur, District- Vaishali.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Engineer-in- Chief, Road Construction Department, Government of
Bihar, Patna.
3. The Deputy Secretary Vigilance, Road Construction Department,
Government of Bihar, Patna.
4. The Deputy Secretary, Road Construction Department, Government of
Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Rajeev Kumar Singh
For the Respondent/s : Mr.M.K.Ambastha -Sc26
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 02-01-2024
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The present writ petition has been filed for quashing
the Notification No. 218 (S) dated 24.03.2017 and 54(S) dated
03.01.2018
by which the pension of the petitioner has been
deducted to 5% per month in most arbitrary and illegal manner
and in utter violation of natural justice. Further prayer has been
Patna High Court CWJC No.4529 of 2018 dt.02-01-2024
made to declare the order of the Departmental Inquiry passed in
proceeding no. 42/15 dated 17.08.2015 as void and illegal and
further for issuance of any other appropriate writ/order as this
Court deems fit in fact and circumstances of the case.
3. Counsel submits that the petitioner joined as Research
Assistant in Public Works Department, Government of Bihar on
07.07.1981, and superannuated with honesty and integrity on
30.11.2014. Counsel further submits that he was promoted on
05.10.2009 to the post of Assistant Director (National Highway
under Sub-Division, Quality Control) at Kochas, Et, Mohaniya
in Kaimur.
4. Counsel submits that after his retirement, vide
departmental order 6001(S)WE dated 03.07.2015, he was
sanctioned 90% provisional pension. Executive Engineer Sub-
Division No. 2 inspected the road constructed during the tenure
of the petitioner on 12.08.2013 and 13.08.2013 and forwarded
the report vide his letter no. 131 dated 08.10.2013 to the Deputy
Secretary Vigilance, containing the report of the collected
sample of material used in the construction and accordingly
made allegations through show-cause which is Annexure-2.
5. Counsel further submits that he has replied to show-
cause with respect to all the allegations made against him vide
Patna High Court CWJC No.4529 of 2018 dt.02-01-2024
Annexure-3. Further, samples were collected and tested in the
laboratory in which construction was found fit and proper as per
Annexure-4.
6. Counsel further submits that five member committee
including Engineer-in-Chief (Chairman) inspected the matter
and upon re-verification found that road was under tolerance
limit of "coal tar" and charges against the petitioner was not
proved.
7. Counsel submits that the petitioner retired in the year
2014, particularly on 30.11.2014 then he received information
that a departmental proceeding was initiated against him vide
Resolution Bearing No. 4977 Dated 21.05.2015 passed by
departmental enquiry under Rules 43(b) of the Bihar Pension
Rules, 1950. Counsel submits that charge has been framed,
petitioner had contested but punishment order not passed in
which direction was made about the permanent deduction of 5%
amount out of pension of the petitioner.
8. Counsel for the petitioner has raised three technical
points. First point is that the charge memo issued is itself bad in
law as it is in gross violation of Rule 17(3) of Bihar Government
Servant (Classification, Control and Appeal) Rules, 2005.
Second is that for applicability of initiation of proceeding under
Patna High Court CWJC No.4529 of 2018 dt.02-01-2024
Rule 43(b) of the Bihar pension Rule, 1950 there are two
ingredients which are necessary to be present i.e. the grave
misconduct or to have caused pecuniary loss to the Government
by the said misconduct.
9. Counsel submits that Annexure-7 is the order by virtue
of which Section 43(b) has been initiated and in the said letter
there is no wishper of grave misconduct or pecuniary loss or
negligence. Counsel further submits that not only the enquiry
report but also the disciplinary report have no such findings.
10. Counsel further submits that Bihar Pension Rules
139(c) clearly indicates that the power of revising pension has to
be exercised only after providing reasonable opportunity of the
show-cause to the pensioner and in the present case, there is
gross violation of this fact.
11. Counsel submits that all the three points raised by the
petitioner are in favour of petitioner.
12. Counsel for State on the other hand vehemently
opposes the prayer of the petitioner and submits that Vide
Annexure-1 order has been passed under Rule 43(b) of the Bihar
Pension Rules, 1950 and then only proceeding has been initiated
which is absolutely lawful.
13. Counsel further submits that prior to passing final
Patna High Court CWJC No.4529 of 2018 dt.02-01-2024
order, opportunity has been granted to the petitioner. On the
point of violation of Rule 17(3) of the Bihar Government
Servant (Classification, Control and Appeal) Rules, 2005 there
is no such violation.
14. After going through the pleading of the parties as well
as the documents, it transpires that in charge memo, name of
witnesses has not been mentioned in accordance with Rule
17(3) of the Bihar Government Servant (Classification, Control
and Appeal) Rules, 2005 it also transpires to this Court that the
basic ingredients for initiation of proceeding under Section
43(b) i.e. the presence of grave misconduct or pecuniary loss of
negligence is also not present vide Annexure-7 or in the enquiry
report or in the disciplinary order. It also transpires to this Court
that prior to passing order on deduction of pension no
opportunity has been granted to the petitioner to show-cause i.e.
the pension is going to be deducted.
15. As such, the order under challenge i.e. notification
No. 218 (S) dated 24.03.2017 and 54(S) dated 03.01.2018 and
Departmental Inquiry passed in proceeding no. 42/15 dated
17.08.2015 is hereby set aside.
16. Counsel for State is directed to rectify the deduction
of pension within 90 days from the date of production of the
Patna High Court CWJC No.4529 of 2018 dt.02-01-2024
order.
(Dr. Anshuman, J)
Sunnykr/-
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