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Judgment
Heard learned counsel for the petitioner and learned counsel for the State.
Learned counsel for the petitioner submits that the present writ petition has been filed with the following reliefs:-
1). That, this is an application for issuance of appropriate writ, order or direction to set aside the order of I.G., Tirhut Range, Muzaffarpur dated 12.10.21 (Annexure-18) and order of S.P., Nalanda dated 7.6.22 (Ann.-19) and order dated 16.9.22 (Annexure-20) by which punishment of deduction of 50% amount of pension was imposed upon the petitioner and order of Additional Director General of Police Budget, Appeal & Welfare, Bihar, Patna dated 6.7.23 (Annexure-22) by which appeal of the petitioner has been rejected and for grant of all consequential benefits.
Learned counsel for the petitioner submits that the petitioner was appointed on the post of Constable on 08.08.1976. He was promoted on the post of Hawaldar in the year 1987 and subsequently, promoted on the post of ASI in the year 2004 w.e.f., 2002. He further submits that at the relevant period of time, the petitioner was posted as ASI in Ganga Bridge, P.S. Vaishali and during his posting in Vaishali, a case was registered against him on 14.09.2006 bearing Ganga Bridge P.S. Case No.350 of 2006. He further submits that on 03.10.2006, charge was framed against the petitioner for taking bribe of Rs.5000/- from the Manager of “Manas Travels” for releasing Bus. He further submits that by virtue of the above charge, departmental proceeding was initiated and the petitioner was dismissed from service by the S.P., Nalanda in the light of order of DIG of Police, Tirhut Range, Muzaffarpur vide Memo No.385 dated 26.03.2011. Thereafter, the petitioner has preferred appeal before the I.G. of Police, Muzaffarpur Zone, Muzaffarpur on 24.05.2011, which was rejected on 04.02.2012. Subsequently, the petitioner has preferred Memorial before the Director General of Police, which was again rejected on 24.07.2012. He further submits that the petitioner has preferred a writ petition bearing CWJC No.10998 of 2013 and the said writ petition was allowed and disposed of on 01.08.2018 and the order of dismissal, appeal as well as memorial were quashed, but liberty was granted in the said writ petition that this order will not come in the way of the respondent authorities in proceeding against the petitioner after ensuring compliance of the procedural fairness as may be permitted in accordance with law. He further submits that in the light of observation made, the DIG of Police, Personnel, Bihar Patna sent a letter on 21.09.2020 to the I.G. of Police, Tirhut Range, Muzaffarpur to initiate appropriate proceeding against the petitioner in Vaishali District Departmental proceeding No.103 of 2006 under Rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred as “the Rules of 1950”).
Counsel further submits that in the light of the said letter, the I.G. of Police, Tirhut Range vide letter dated 16.10.2020 has communicated to the S.P., Vaishali for initiation of departmental proceeding against the petitioner under the Rules of 1950. He further submits that charge was framed on 26.11.2020 against the petitioner. He further submits that the petitioner has submitted representation before the enquiry officer and denied the charges. After statements of prosecution witnesses, the petitioner submitted last show cause before the enquiry officer on 28.05.2021 and then the Enquiry Officer has submitted his finding on 29.06.2021 holding the petitioner guilty.
Counsel further submits that on 20.07.2021, the petitioner was directed to file second show-cause against the proposed punishment which he has submitted on 23.07.2021. After receiving the second show-cause, the S.P., Vaishali sent letter to the I.G. of Police, Tirhut range, Muzaffarpur and recommended for punishment against the petitioner and I.G. of Police, Tirhut has directed the petitioner to submit second show-cause. Upon submission of second show-cause vide order dated 12.10.2021, the I.G. of Police, Tirhut inflicted the punishment of withholding of 50% amount of pension for 5 years. In this regard, the S.P., Nalanda issued Nalanda District Order No.1207 of 2022 dated 09.06.2022 and District Order No.2062 of 2022 dated 16.09.2022 and passed order to withhold of 50% pension of the petitioner till 5 years against which the petitioner has preferred appeal before Additional Director General of Police Budget, Welfare and Appeal, Bihar Patna on 12.04.2023, which was rejected on 06.07.2023. Thereafter, the petitioner has preferred the present writ petition.
Counsel for the petitioner primarily raised two points before this Hon’ble Court in support of his argument. He submits that from the record, it becomes crystal clear that the event for which the departmental proceeding initiated, is of the year 2006, whereas the charge memo has been issued to him in the year 2020 particularly on 26.11.2020 i.e., more than 4 years from the date of his retirement, which is unfair and illegal and in gross violation of Rule 43(b) of the Rules of 1950. The second point, he has submitted that the departmental proceeding under Rule 43(b) and its proviso (a)(iii) of the Rules of 1950 shall be conducted in accordance with the procedure applicable to the proceeding on which the order for dismissal from service may be made i.e., according to Rule 17 of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005.
Counsel further submits that there is gross violation of the said rule in the departmental proceeding as the statement of manager or owner of the travel clearly indicates that the demand of money was not made by the petitioner. Neither evidence for allegation of taking bribe of Rs.5000/-proved nor DIG of Police gave statement nor he was produced for cross examination of his previous statement. He further submits that there is no legal evidence to proof the charge leveled against the petitioner. The date of alleged occurrence with regard to departmental proceeding has been initiated in the year 2006, the petitioner retired on 28.02.2017, but initiation of departmental proceeding under Rule 43(b) of the Rules of 1950 for which time limit is only 4 years from the date of retirement, has not been taken care of. He further submits that on both grounds, procedural irregularities as well as gross violation of Rule 43(b) of the Rules of 1950, the said order of punishment i.e., deduction of 50% of pension for 5 years is absolutely bad in law and, therefore, the impugned orders may be set aside
Learned counsel for the State, on the other hand, vehemently opposes the contention of the counsel for the petitioner and submits that in the first round of litigation, when the Hon’ble Writ Court has pleased to set aside the order passed by the Disciplinary Authority, Appellate Authority as well as the Memorial passed by the Director General of Police and categorically directed to the respondents to proceed against the petitioner after ensuring compliance of the procedural fairness which the respondent authorities have duly followed and since the petitioner was retired in the year 2017, therefore, it has been decided to proceed against the petitioner under Rule 43(b) of the Rules of 1950. In this regard, proper communication was made to him and charge was framed, written statement was demanded, matter was referred to the Enquiry Officer, due evidence was taken place, Enquiry Officer reached on the conclusion, matter was remanded back to the Disciplinary Authority and the Disciplinary Authority thereafter demanded the show-cause and then only, the order has been passed. Therefore, according to the counsel for the State, there is neither any procedural mistake nor violation of natural justice nor the punishment is exorbitant/ excessive. Therefore, the present writ petition is fit to be dismissed.
After hearing the parties and upon perusal of the documents, this Court deems it appropriate to quote the findings of the Hon’ble Court, which has been passed in CWJC No.10998 of 2013 dated 01.08.2018, whose relevant paragraph Nos.9 to 12 are stated below:-
“9.Another illegality and violation of principal of Natural Justice is that the very same officer, who at the point of time was posted as the Deputy Inspector General of Police and had apprehended the petitioner and had made allegation against him leading to issuance of charge memo against the petitioner, has dealt with and decided the petitioner's case sitting as the Appellate Authority. Order of the Appellate Authority is unsustainable in law as it violates one of basic principles of Natural Justice inasmuch as the authority has acted as a judge in his own cause. Having initiated the proceedings against the petitioner by apprehending him red handed he has decided the appeal against the petitioner, since the very same officer had made the allegation against the petitioner of apprehending him while accepting bribe. The accuser has thus acted as the Appellate Authority to decide the accusation. Such situation, in opinion of this Court gives rise to a reasonable likelihood of bias so as to disqualify the officer from acting as the Appellate Authority and order of the Appellate Authority is thus legally unsustainable as by any stretch of imagination, the appeal of the petitioner can be said to be a fair consideration in view of this grave irregularity/illegality. For the reasons indicated herein above, both the order of punishment dated 4.4.2011 which was communicated to the petitioner under the order of the Superintendent of Police. Nalanda as well as order dated 4.2.2012, passed by the Appellate Authority. i.e.. the Inspector General of Police, Muzaffarpur Zone, Muzzaffarpur, are unsustainable in the eye of law and are quashed.
10.Order dated 24.7.2012, affirming order of dismissal and the appellate order, passed by the Director General of Police, Bihar on the memorial filed by the petitioner, thus "has no leg to stand as he himself has also failed the test of fairness. The order on the memorial has been passed without considering all these irregularities and illegalities and procedural violation. Order dated 24.7.2012 is also quashed.
11.The writ petition is allowed.
12.This order, however, will not come in the way of the respondent authorities in proceeding against the petitioner after ensuring compliance of the procedural fairness as may be permitted in accordance with law.”
whose paragraph 11 of the said order clearly indicates that the writ petition was allowed and the orders passed by the Original Authority, Appellate Authority and the Director General of Police in Memorial, all were set aside with a specific direction that this order, however, will not come in the way of the respondent authorities in proceeding against the petitioner after ensuring compliance of the procedural fairness as may be permitted in accordance with law. The word ‘in accordance with law’ in the said order of paragraph 12, is very fatal for the petitioner as well as the respondents because any process has to be followed in accordance with law. The respondent authorities have switched over the proceeding under Rule 43(b) of the Rules of 1950 because the petitioner was retired in the year 2017 and it has been decided to proceed against him in the year 2020 particularly, on 21.09.2020, so taking decision to initiate proceeding under Rule 43(b) of the Rules of 1950 is correct, but the charge was framed against the petitioner on 26.11.2020 and the petitioner was retired on 28.02.2017.
With a view to decide this question, it is necessary to quote Rule 43(b) of Bihar Pension Rules, 1950 & its proviso reads as under:-
"The State Government further reserve to themselves the 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 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 -
(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 at 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 accordance with sub-clause (ii) of clause (a); and
(c)Bihar Public Service Commission, shall be consulted before final orders are passed."
The explanation for the purpose of the rule clearly states that departmental proceeding shall deem to have been instituted when the charge framed. Herein the present case, charge was framed on 26.11.2020 for an event, which took place in the year 2006 and the proviso (a)(ii) of Rule 43(b) of the Rules of 1950 clearly states that the departmental proceeding shall be instituted in respect of an event which took place not more than 4 years before the institution of the said proceeding. As such, this Court finds that there were already four years lapsed and this Hon’ble Court in its order has clearly indicated that action has to be taken by the respondent authorities, which is permitted in accordance with law.
This Court finds that the action of the authorities is not within the framework of law and, hence, it is due to this technical reason, the order passed by the I.G., Tirhut Range, Muzaffarpur dated 12.10.2021 (Annexure-18), the order passed by the S.P., Nalanda dated 07.06.2022 (Annexure-19), the order dated 16.09.2022 (annexure-20) by which punishment of deduction of 50% amount of pension and the order passed by Additional Director General of Police Budget, Appeal & Welfare, Bihar Patna dated 06.07.2023 (Annexure-22), all are hereby set aside.
With the aforesaid directions and observations, the present writ petition stands allowed.