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arbitrary and malacious departmental proceedings U/R 43(b)
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2946 of 2009
Vinay Sharma
Versus
The State Of Bihar & Ors
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11/08/2011
Heard learned counsel for the petitioner and learned counsel for the State.
The petitioner while holding the post of Executive Engineer in current charge was placed under suspension on 17.3.2006. A memo. of four charges followed thereafter on 20.4.2006. The allegation was that notwithstanding the orders of this Court in C.W.J.C. No.15455/04 preferred by the contractor M/s. Shambhawi Constructions for payment of its contractual dues in respect of works done in the years-2002-2003 the petitioner unnecessarily delayed the same leading to contempt proceedings notwithstanding departmental directions to make the payment. The petitioner filed his reply to the same in detail which was not accepted. He then filed C.W.J.C. No.4140/06.
A Bench of this Court on 21.7.2006 at paragraph-8 arrived at the conclusion that none of the concerned functionaries passed appropriate orders on the representation of M/s. Shambhawi Constructions directing the petitioner to make payment. The Chief Engineer directed the petitioner to make the payment, but simultaneously forwarded the matter to the
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government for further approval which never came. The Court therefore held that in absence of procedural approval for payment by the departmental functionaries, the resolution of the State Government initiating departmental proceedings and the memo. of charges for failure to comply departmental instructions in making payments was wholly misconceived and it was quashed. The judgement attained finality and was not questioned by the respondents. In C.W.J.C. No.15455/04 this Court gave no positive directions for payment, but only observed to consider and dispose off the representation of the contractor and pay the admitted dues.
The petitioner then superannuated on 31.1.2008. Taking a queue from the judgment of this Court in C.W.J.C. No.4140/06 the respondents construed it as a carte blanche to them, contrary to the law to devise a procedure of their own to again chase the petitioner at a period of time after his superannuation when he should have been left in peace. On 21.7.2006 when the order in C.W.J.C. No.4140/06 came to be passed, the petitioner was still in service. Had the memo. of charge been issued against him after that date but before his superannuation, entirely different considerations may have arisen. The
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respondents did no such thing and allowed him to superannuate. On 22.5.2008 they commenced a fresh enquiry purporting to be under the orders of this Court in C.W.J.C. No.4140/06 and lodged a First Information Report against the petitioner, but subsequently withdrew his name from the list of accused. Departmental proceedings were then initiated against the petitioner on 22.5.2008 under Rule-43(b) of the Bihar Pension Rules. The earlier memo. of charge dated 20.4.2006 questioned his conduct in not releasing payments. The fresh memo. of charge under Rule-43(b) now questioned why he recommended payments. The Court is at a complete loss to understand what were the respondents alleging against the petitioner. Did he commit a mistake by a delayed recommendation for payment or did he commit a mistake in recommending payment. It appears that the respondents were fishing for grounds to hound the petitioner. The writ application is raising a pure question of law with regard to the validity of a memo. of charge dated 22.5.2008 under Rule-43(b) of the Pension Rules with regard to an event much beyond a period of four years from that date, relating to the year-2002-2003.
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The Supreme Court in AIR 1995 S.C. 1853 (State of Bihar & Ors. Versus Md.Idrish Ansari) has held at paragraph-7 of the judgment as follows:-
“7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27-9-1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17-10-1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition No. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17-10-1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17-10-1987 but initiated fresh departmental inquiry by the impugned
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notice dated 27-9-1993. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17-10-1987.” It is the State of Bihar which had suffered the judgment. The least that was expected of those in whom the State of Bihar has placed trust to protect its interest, was to contest a genuine case in the interest of the State and not to fritter away the resources of the State in an indefensible case. The Court refrains from any reference to the State Litigation Policy as that has been promulgated in the year-2011. The need for the same is more than amply demonstrated by the manner in which the respondents have proceeded in contesting what was essentially an indefensible case. The Court does not consider it necessary to go into the additional ground raised on behalf of the petitioner that the promulgation under Rule-43(b) of the Bihar Pension Rules was not in accordance with the Rules of Executive Business. That question is left open.
Learned counsel for the State from the counter affidavit filed by the Deputy Secretary of the Water Resources Department, submits that this Court in C.W.J.C. No.4140/06 at paragraph-9 had given directions to look into the matter and take appropriate remedial measures not only to recover the amount
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which has been unauthorizedly paid, but also take civil and criminal actions against those who are responsible for the payment. The submission therefore is that the departmental proceedings are but in compliance of the orders of the Court. The counter affidavit at paragraph-11 urges that the departmental proceedings had been initiated against others also, but did not disclose their names or the date on which the memo. of charges had been issued. Applying pure common sense, the Court finds that in the writ petition filed by the petitioner the memo. of charge against him for delay in release of payments was quashed on the ground that necessary approval never came to be given by those who were required to do so. In view of this finding, it is very difficult to understand by what logic the respondents purported to initiate departmental proceedings against the petitioner for making a wrong recommendation for payment. The incongruousness in the conduct of the respondents is too apparent to be ignored.
This Court in C.W.J.C. No. 11 of 2010 has already observed the seriousness of a proceeding under Rule-43(b) of the Bihar Pension Rules and how it affects the employee concerned, the caution to be exercised by
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the respondents after careful analysis of the ultimate success that may or may not be achieved and after considering all of which, to resort to this extra ordinary power. In conclusion, the Court holds that the memo. of charge dated 22.9.2008 under Rule-43(b) of the Bihar Pension Rules have been issued with regard to an event of the year-2002-2003 much beyond the period of four years permissible under the Rules. The proceedings under the memo. of charge dated 22.9.2008 are therefore quashed. It is expected that the respondents shall now for all purposes treat the petitioner as a clean superannuated employee and deal with him accordingly. The writ application stands disposed.
KC
( Navin Sinha, J.)
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