Rameshwar Pd.Sinha @ Shrivastava vs The State of Bihar

Seeking exception to an order dated 13.07.2011

passed by the Writ Court in Civil Writ Jurisdiction Case No. 7472 of

2005, this appeal has been filed under Clause-10 of the Letters Patent.

The petitioner was working in the Office of

Collectorate, Sitamarhi as a Head Clerk and was posted in the Office

of Sub-Divisional Officer, Pupri in the Land Reform Section. On

attaining the age of superannuation, he retired on 31.05.2001 and two

years after his retirement, based on certain facts that came on record, a

charge-sheet was issued to him in the year 2003 by the Collector,

Sitamarhi and by an order passed on 19.05.2005, the Collector

imposed punishment of forfeiture of pension to the extent of 50

percent in accordance to the Bihar Pension Rule, 1950.

Challenging the imposition of punishment, the

writ petition in question was filed and the learned Writ Court after

taking note of the procedure and the allegations made, dismissed the

writ petition by holding that there is no illegality in the action taken.

However, while doing so, a legal question with regard to taking action

under Rule 43(b) of the Bihar Pension Rules was lost sight of by the

learned Writ Court. Proviso (a) to Rule 43(b) of the Bihar Pension

Rules stipulates that when a departmental proceeding is not instituted

when the government servant was on duty either before retirement or

during reemployment, it shall not be instituted without sanction of the

State Government. In this case, before the Writ Court and para 13 of

the averments made in the writ petition, it is crystal clear that it was

the specific case of the petitioner that in his case, the proceedings after

his retirement have been initiated under Rule 43(b) of the Bihar

Pension Rules, but sanction of the State Government as contemplated

under Proviso (a) has not been obtained.

The respondents, in their counter affidavit, filed in

the writ petition stated that as the Collector was the appointing

authority, therefore, it was not necessary to obtain the sanction of the

State Government or the Bihar Public Service Commission.

That being so, admittedly, the petitioner is an

employee to whom the Bihar Pension Rules apply and, according to

the said rule, once an employee has retired, for initiating departmental

enquiry, sanction of the State Government is necessary. This issue is

no more res integra as the matter stands settled by the Division Bench

of this Court in the case of Ram Nandan Prasad Sinha versus State

of Bihar reported in 2001(2) PLJR 826, wherein in para 11 the

matter has been dealt with by the learned Division Bench in the

following manner :-

"11. Adverting to the instant case, it is the admitted position that the proceeding was initiated much after the retirement of the petitioner. The proceeding, therefore, was clearly covered by proviso (a) to Rule 43(b) of the Pension Rules. That being so, the petitioner was entitled to the safeguards contained in different clauses of the proviso. There is no dispute about the compliance of clauses (i) and (ii). There is dispute about compliance of clause (iii) alone. In the absence of specific denial of the petitioner''s case that inquiry within the meaning of rule 55 of the Civil Services Rules was not held, that is, opportunity to examine/cross-examine witnesses was not given, copies of the documents were not supplied and so on, it is not possible to accept the bald assertion of the respondents that opportunity was given. The respondents should have produced materials to substantiate the plea. It is evident that only hearing worth the name took place on 30.6.93. While that could be compliance of the requirement of giving opportunity of hearing of the kind mentioned in rule 55A of the Civil Services Rules meant for imposition of minor penalties, that cannot be said to be adequate. The procedure applicable to proceedings in which order of dismissal from service can be passed, laid down in rule 55 of the Civil Services Rules, having not been followed, I have no hesitation in holding that there has been violation of clause (iii) of provision (sic- Proviso ?) (a) to Rule 43(b) of the Pension Rules

rendering the impugned order of the Finance Commissioner dated 5.12.95 and the consequential orders illegal."

Keeping in view the aforesaid, in the present case

also as the impugned action has been taken by the Collector without

taking sanction or concurrence by the State Government or the Bihar

Public Service Commission, the entire action stands vitiated on this

count alone as it is breach of the mandatory requirement as

contemplated under Rule 43(b) of the Bihar Pension Rules.

Accordingly, we allow the appeal, quash the order

passed by the learned Writ Court in C.W.J.C. No. 7472 of 2005 on

13.07.2011 and the impugned order of punishment passed by

Collector, Sitamarhi dated 19.05.2005, Annexure-5. All consequential

benefits accruing to the petitioner shall now be paid to him within a

period of three months. 8. With the aforesaid, the appeal stands allowed.