The Patna High Court reviewed a writ petition challenging an order withholding 25% pension. The court held the initiating order lacked State Government sanction and the enquiry violated procedural requirements for major punishment.
The impugned order of 29.11.2013 was set aside, and the writ petition was allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5728 of 2014
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Md. Islam Son Of Late Md. Shafique Resident Of Village- Sakri Sarahiya, P.S.Kundandi, District- Muzaffarpur
.... .... Petitioner/s Versus
.... .... Respondent/s =========================================================== Appearance : For the Petitioner : Mr. Chakrapani, Advocate. Mr. Dipak Kumar, Advocate. Mr. Sanjay Kumar Singh, Advocate. For the Respondents : Mr. Rishi Raj Sinha, SC-19 Mr. Birendra Pd. Singh, AC to SC-19. ===========================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL JUDGMENT
Date: 10-10-2017
Heard both sides.
Patna High Court CWJC No.5728 of 2014 dt.10-10-2017
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Officer, Bihar, Patna on 18.01.2011, but after retirement of the petitioner the Director, Agriculture, Bihar, Patna decided to initiate a proceeding under Rule 43 (b) of the Bihar Pension Rules (hereinafter referred to as the ‘Pension Rules’) vide order dated 13.12.2012, as contained in Memo No. 2194 (Annexure-1). The Deputy Director, Administration was appointed as Presenting Officer on behalf of the disciplinary authority. The enquiry officer submitted his report. The Director, Agriculture, Bihar, Patna asked second show cause vide Letter No. 1293 dated 16.08.2013. The petitioner submitted his second show cause. Thereafter, the Director passed the order withholding 25% pension of the petitioner vide Letter No. 1932 dated 29.11.2013 (Annexure-5).
Patna High Court CWJC No.5728 of 2014 dt.10-10-2017 3
grave misconduct or to have caused pecuniary loss to Government by his misconduct or negligence during his service including the service rendered after retirement, but the Director is not the State Government. There is nothing on record to show that decision for initiation of proceeding under Rule 43(b) of the Pension Rules is taken by the State Government. Learned counsel for the petitioner further submits that the enquiry officer did not hold the enquiry in accordance with the rule 17 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as the ‘CCA Rules, 2005’). The enquiry officer simply asked the petitioner to submit his show cause and also direct the presenting officer to file his opinion with regard to the charges made against the petitioner. The enquiry officer thereafter submitted his report. Rule 17 of the CCA Rules, 2005, prescribes the procedures for inflicting major punishments. Withholding of 25% pension of the petitioner is admittedly a major punishment and therefore, the order is illegal and not sustainable.
Patna High Court CWJC No.5728 of 2014 dt.10-10-2017 4
given any reply on the point that whether the proceeding under rule 43(b) of the Pension Rules was ordered to be initiated by the State Government. Rule 43 (b) of the Pension Rules clearly says that only the State Government reserved its right to initiate proceeding for forfeiture of the entire or any part of the pension of the pensioner, on the ground that if the pensioner was found in departmental proceeding or in judicial proceeding guilty for grave misconduct or the pensioner has committed negligence and caused pecuniary loss to the department, but it appears from perusal of Annexure-1, the order by which proceeding under Rule 43(b) of the Bihar Pension Rules is initiated, is passed by the Director, Agriculture, Bihar, Patna that it has not been issued in pursuance of the order of the State Government.
Patna High Court CWJC No.5728 of 2014 dt.10-10-2017 5
upon the proceedee to examine his witness or adduce evidence in his defence, but the enquiry report, itself, shows that the enquiry officer did not hold the enquiry in accordance with the procedure laid down in Rule 17 of the CCA Rules, 2005 and submitted the report on the basis of explanation and the opinion of the presenting officer. Therefore, the enquiry report is not a report in the eye of law under sub-rule 23 of the CCA Rules, 2005. On such enquiry report, I find that any punishment inflicted upon the petitioner cannot be sustainable.
(Prabhat Kumar Jha, J)
KKSINHA/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 23.10.2017 Transmission NA Date
3 issues framed by the court
Whether the order initiating proceedings under Rule 43(b) of the Bihar Pension Rules was validly issued by the State Government as required.
Whether the departmental enquiry was conducted in accordance with the mandatory procedure under Rule 17 of the CCA Rules, 2005 for major punishments.
Whether the punishment of withholding 25% pension imposed on the retired petitioner is sustainable in law.
2 provisions across 2 enactments
Md. Islam Son Of Late Md. Shafique
The State Of Bihar
The Principal Secretary, Department Of Agriculture
The Director, Department Of Agriculture
The Joint Director, Department Of Agriculture
The Deputy Director, Department Of Agriculture
Prabhat Kumar Jha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
