Patna High Court
The State Of Bihar Through Principal ... vs Binod Kumar Jha on 24 June, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.614 of 2021
In
Civil Writ Jurisdiction Case No.10729 of 2019
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1. The State of Bihar through Principal Secretary, Department of Registration
Excise and Prohibition Govt. of Bihar, Patna.
2. The Commissioner and Inspector General of Registration, Department of
Excise and Prohibition, Govt. of Bihar Patna.
3. The Secretary Department of Excise and Prohibition, Govt. of Bihar, Patna.
4. The Special Secretary, Department of Registration Excise and Prohibition,
Govt. of Bihar, Patna.
5. The Deputy Secretary, Department of Excise and Prohibition, Government
of Bihar at Patna.
... ... Appellant/s
Versus
Binod Kumar Jha S/o Late Hari Lal Jha (Dy. Commissioner, Bhagalpur
Division (Retd.)) Resident of Araria P.S. and District- Araria.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sriram Krishna (A.C. To S.C.11)
For the Respondent/s : Mr.Suresh Pd Singh No.1
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 24-06-2024
The Appellant-State have filed the present LPA No. 614 of 2021
in assailing the order of the learned single judge dated
21.01.2021
passed in CWJC No.10729 of 2019. There is a delay
of about 228 days in filing LPA. In the meanwhile, contesting
Respondent-Binod Kumar Jha has filed MJC insofar as non-
compliance of the order of the learned single judge dated
21.01.2021.
Patna High Court L.P.A No.614 of 2021 dt.24-06-2024
2. Heard I.A. No. 01 of 2024 for condonation of delay in filing
LPA No. 614 of 2021. Even though sufficient cause has not been
shown however, we intend to condone the delay of about 228
days in view of the fact that it is a State LPA and certain
financial implications are involved in the present lis.
Accordingly, I.A. No. 01 of 2024 stands allowed.
3. Heard learned counsel for the respective parties on merit on
LPA. The Respondent-Binod Kumar Jha while working as
Assistant Commissioner he had failed to take responsibility in
curbing certain issues relating to number of people died while
consuming spurious liquor and such incident was occurred in
the year 2012 whereas the departmental enquiry has been
initiated in the year 2015. On 31.01.2015, he has attained age of
superannuation and retired from service.
4. Enquiry officer has exonerated the Respondent in a
departmental inquiry. Resultantly, Sub-Rule 2 of Rule 18 of
Bihar CCA Rules 2005 was required to be exercised by the
disciplinary authority in issuing notice to the Respondent as to
why he shall not disagreeing with the Enquiry officer's report on
particular counts. Such a notice has not been issued. On the
other hand, disciplinary authority proceeded to impose penalty
of withholding of forfeiting of 5 per cent pension under Rule 43
Patna High Court L.P.A No.614 of 2021 dt.24-06-2024
(a) of Bihar Pension Rules on 15.02.2019.
5. In the meanwhile, for non-settlement of retiral benefits
Respondent has invoked the remedy before this Court in CWJC
No. 10729 of 2019. During pendency of the aforementioned
writ petition, Appellant have filed counter affidavit while
pointing out that Respondent was punished with forfeiting of
five percent of pension in a departmental enquiry. Consequently,
Respondent questioned the validity of punishment order dated
15.02.2019.
6. Learned Single Judge proceeded to pass order that the order
of punishment dated dated 15.02.2019 was issued under Rule
43 (a) of Bihar Pension Rules and it is not a relevant provision
and so also it is without jurisdiction. Thereafter, matter has been
remanded to the authority for passing a fresh order. At this
stage, Respondent-Binod Kumar Jha filed MJC contempt
petition during pendency of the MJC State-appellant have
preferred the present LPA.
7. Learned counsel for the Appellants-State submitted that
learned single judge has committed error in quashing the
penalty order dated 15.02.2019 on the score of jurisdiction. No
doubt it is a true, however, authorities quoting a wrong
provision does not vitiate order as held by the Hon'ble Supreme
Patna High Court L.P.A No.614 of 2021 dt.24-06-2024
Court in umpteen number of cases. Therefore, to the above
extent the learned single judge has committed error. Be that as it
may, the impugned order dated 15.02.2019 is not sustainable on
the score that disciplinary authority while disagreeing with the
enquiry officer's report failed to adhere to Sub Rule 2 of Rule
18 of Bihar CCA Rules 2005. On this score, the impugned
penalty dated 15.02.2019 is liable to be set aside. Accordingly,
the order of the learned single judge stands modified.
8. Insofar as granting interest on gratuity amount is concerned,
it is to be noted that departmental enquiry was pending
consideration against the respondent. The respondents have
taken about four years in completing the enquiry. Further, a
defective order has been passed on 15.02.2019 to the extent of
violation of Sub-Rule 2 of Rule 18 of Bihar CCA Rules 2005.
Therefore, granting of 9 per cent interest on gratuity amount
was also unreasonable. Further, the appellants have not
implemented the orders of this Court dated 21.01.2021 passed in
CWJC No. 10729 of 2019 and they have opened their eyes in
filing LPA only as and when respondent has filed MJC contempt
petition insofar as implementation of the order of this Court
dated 21.01.2021 passed in CWJC No. 10729 of 2019. Further,
we have noticed that LPA was filed in the year 2021 as on the
Patna High Court L.P.A No.614 of 2021 dt.24-06-2024
date of filing LPA they are very much aware that there is delay
in filing LPA whereas I.A. for condonation of delay has been
filed after three years. There is a delay on the part of the
appellants at every stage even in disciplinary proceedings as
well as conducting case in the present court. Taking note of
these facts and circumstances, we propose to modify the order
of the learned single judge insofar as quashing the impugned
penalty dated 15.02.2019 on the score that disciplinary authority
failed to follow Sub-Rule 2 of Rule 18 of Bihar CCA Rules
2005 and not on jurisdiction or quoting a wrong provision, it is
not appropriate to remand the matter at this distant of time for
the reasons that subject matter of litigation is pending
consideration from the date of allegation is more than one
decade that apart, the respondent has attained age of
superannuation and retired from service on 31st January 2015
and we are in the year 2024. Therefore, it is not a case for
remanding the matter to the disciplinary authority to pass a fresh
order. Insofar as payment of interest on gratuity is concerned, it
is restricted at 8 per cent and Respondent is entitled to interest
from the date of filing CWJC No. 10729 of 2019 till actual
payment is made the same shall be calculated and disbursed. If
it is already paid any gratuity amount, in that event, interest
Patna High Court L.P.A No.614 of 2021 dt.24-06-2024
shall be calculated and disbursed within a period of three
months from the date of receipt of this order.Withheld or
forfeited 5% pension shall be released forthwith.With the above
observations, LPA stands allowed in part.
(P. B. Bajanthri, J)
( Alok Kumar Pandey, J)
vashudha/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 25.06.2024
Transmission Date NA
