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Judgment
Heard the learned counsel for the parties.
C.W.J.C. No. 20889 of 2014
The present writ petition has been filed for the following relief(s):
“(i)for issuance of appropriate writ in the nature of certiorari for quashing the resolution dated 04.08.2010 issued through Letter No.3416, Department of Social Welfare, Government of Bihar.
(ii)for issuance of appropriate writ in the nature of certiorari for quashing order contained in Departmental Resolution No.1444 dated 21.3.2013; which was neither served upon the petitioner till date nor the petitioner had knowledge about it. She came to know about it when she received Departmental Resolution contained in Memo No. 4868 dated 20.10.2014 of Department of Social Welfare, Government of Bihar in which there is mention of the above departmental resolution.
(iii)for issuance of any other order, direction which the court may deem fit in the facts and circumstances of the present case for the best interest of justice.”
C.W.J.C. No. 8002 of 2017
The present writ petition has been filed for the following relief(s):
“(i)That this is a writ petition on behalf of the Petitioner for issuance of a writ of certiorari or writs in the nature thereof or any other appropriate writs/orders/directions for quashing Notification contained in Memo No.3373 dated 28.07.2016 of Respondent No.7 whereby and where under 90% of pension of the petitioner has been illegally and with mala fide intent withheld under Rule 43(b) of the Bihar Pension Rules.”
BRIEF FACTS OF THE CASE
The facts which are essential for adjudication of both the writ petitions and are common, therefore, were heard together with the consent and request of the parties. The petitioner was appointed as a Child Development Project Officer (CDPO) on 14.12.1985 under the Department of Social Welfare, Government of Bihar, Patna. The petitioner was posted at different places and while she was posted at Muzaffarpur, on 30.01.2004 an allegation was leveled against the petitioner by some unknown persons, in the Janta Darbar of the District Magistrate, Muzaffarpur. On the basis of the said complaint, the District Magistrate directed the District Public Relation Officer, Muzaffarpur to conduct an enquiry. The District Public Information Officer, Muzaffarpur vide his letter no.18 dated 30.01.2004, submitted his report before the District Magistrate, Muzaffarpur. Pursuant thereto, the memo of charge was issued to the petitioner and the petitioner submitted her reply on 13.10.2007. The District Magistrate, Muzaffarpur, by his letter contained in memo No.9-12/07-519 dated 08.02.2008, addressed to the Director, Social Welfare Department, Government of Bihar, Patna, sent the details of the earlier memo of charge, issued to the petitioner, the reply submitted by her and the enquiry conducted by the then District Public Relation Officer, Muzaffarpur, for taking necessary decision. It is the case of the petitioner that on the letter sent by the District Magistrate, Muzaffarpur, a note sheet was sent by the concerned clerk of the department to the Director, Social Welfare Department, who found the allegations leveled against the petitioner to be not tenable and without any recommendation, closed the file. However, some officials/employees were inimical to the petitioner, who obtained the file from the Secretariat and presented it before the then Minister, Social Welfare, Government of Bihar, however, he agreed with the decision of the Director, ICDS. It is the case of the petitioner that although, the Minister agreed with the decision of the Director, ICDS, but later on the Minister reviewed his decision/own order and reopened the matter on 04.08.2010, which was closed and the allegations against the petitioner was dropped. On 04.08.2010, the petitioner was a Class-I officer and pay fixation of the petitioner was also done on a Class-I post, therefore in terms of Rule 32 of the Rules of Executive Business, the Chief Minister was the competent authority to approve initiation of any disciplinary proceeding against a Class-I officer. It is the case of the petitioner that vide memo no.3416 dated 04.08.2010, a decision was taken to initiate departmental proceeding against the petitioner and the said decision was issued under the approval of the Hon’ble Minister, Social Welfare Department and as such the resolution itself is void ab initio, without jurisdiction, since the initiation of departmental proceeding against the petitioner could have been made on the direction of the Hon’ble the Chief Minister, Bihar. The Additional Collector, Bhagalpur was appointed as the Conducting Officer and he submitted his enquiry report, which was not accepted by the Government. The matter was remitted back to one Deputy Secretary of Social Welfare Department vide letter no.1454 dated 17.03.2012.The departmental proceeding was not concluded by the said Deputy Secretary and thereafter one Joint Secretary was appointed as the Enquiry Officer, however he refused for the same. Thereafter, one another person namely Sri Debkant Diwakar was appointed as the Enquiry Officer vide letter contained in memo no.4678 dated 01.10.2012. The petitioner submitted an application before the Enquiry Officer with a request to remand the departmental proceeding to the Additional Collector, Bhagalpur, who had submitted his report. The petitioner in her letter, referred to the decision of the Hon’ble Supreme Court of India that the departmental proceeding can be remanded, but the Enquiry Authority cannot be changed. It is further case of the petitioner that Sri Debkant Diwakar did not conclude the proceeding and he returned the file to the department on the ground that the petitioner retired in the meanwhile.
It is further case of the petitioner that although she retired on 31.01.2013, however the respondent authorities did not proceed with the conclusion of the departmental proceeding, which was kept pending for almost 10 years, although the petitioner was present on all the dates fixed during the departmental proceeding. Subsequently, one another officer was appointed as the Enquiry Officer vide memo no.3844 dated 05.08.2013 and the Presenting Officer was also replaced. The petitioner submitted an application before the Special Secretary, Social Welfare Department, Government of Bihar on 31.08.2013, wherein she pointed out the illegally in continuing the delayed departmental proceeding, on the basis of the judgment of the Hon’ble Supreme Court of India reported in 2005 (6) SCC 636, wherein it has been held that keeping the departmental proceeding pending for more than 7 years, is in violation of principles of justice. In the petition, she also pointed out that although she retired on 31.01.2013 and proceeding under CCA rules can be carried against the government servant in service, therefore the same may not continue, in violation of the provisions contained in CCA Rules, 2005. The petitioner continued sending one letter/representation after another, before the departmental authorities, pointing out that there is a provision that the Conducting Officer and the Enquiry Officer cannot be changed and the departmental proceeding cannot continue/kept pending beyond a period of 7 years. It is further case of the petitioner that the respondent no.6, who was the Joint Secretary, Department of Social Welfare at the relevant time, is taking personal interest in the departmental proceeding against the petitioner and he himself procured attendance of some so called witnesses through his direct correspondence and therefore, the petitioner filed a representation before the Enquiry Authority, on 22.09.2014. A copy of the same was also forwarded to the Principal Secretary, Department of Social Welfare, however, no order was passed on the letter sent by the petitioner. It is further case of the petitioner that no information was given to the petitioner with regard to the conversion of departmental proceeding under Rule 43(b) of the Bihar Pension Rules, since the petitioner has retired in the meanwhile. The petitioner wrote a letter on 18.10.2014 to the Conducting Officer wherein she stated that no information was given to her with regard to the examination of the witnesses and the same were done behind her back and despite asking for the copy of the examination of the witnesses, the same has not been provided to her. The petitioner came to know about the departmental resolution no.1444 dated 21.03.2013, through departmental resolution contained in memo No.4868 dated 20.10.2014 and the resolution no.1444 dated 21.03.2013 was never communicated to the petitioner. It is further case of the petitioner that despite her repeated request, the departmental proceeding was not completed and therefore, the petitioner was constrained to file the present writ petition i.e. C.W.J.C. No.20889 of 2014. Subsequently final decision was taken in the departmental proceeding and vide memo no.3373 dated 28.07.2016 issued under the signature of the Joint Secretary, Department of Social Welfare, Government of Bihar, Patna, the punishment of stoppage of 90% of the pension of the petitioner was taken in terms of Rule 43 (b) of the Bihar Pension Rules.
The petitioner assailed the said order of punishment by filing C.W.J.C. No.8002 of 2017, which is the subject matter of one of the present writ petition. It is further case of the petitioner that earlier also a departmental proceeding was initiated against her, while she was posted at Runisaidpur vide notification no.6749 dated 30.11.2005. The petitioner had filed a writ petition bearing C.W.J.C. No.15005 of 2005. This Hon’ble court directed that the proceeding against the petitioner be concluded within 9 months. Pursuant thereto, the Enquiry Officer submitted his report in 2006, wherein it was stated that the allegation against the petitioner was not proved. The suspension of the petitioner was revoked on 17.11.2006 and she was posted at Raniganj in Araria district. It is the case of the petitioner that some persons inimical to the petitioner were not satisfied with the said revocation of suspension of the petitioner, therefore, they got initiated the present departmental proceeding against the petitioner. It is further case of the petitioner that the documents relating to deposition of witnesses and their alleged examination in the departmental proceeding, which were made available to the petitioner, were not attested or certified by the competent authority. This fact was brought to the notice of the authority concerned by the petitioner in paragraph no. 15 (1) to 15 (8) of her second show cause reply. The petitioner asked for additional copies of all those papers and also the entire order sheet, the entire examination in chief/cross-examination of the witnesses, cash book of payment of honorarium, cash book relating to adjustment of Poshahar Agrim, bank register, files regarding comments of the District Magistrate, Muzaffarpur on the show cause of the petitioner, the comments on the show cause filed by Subhash Kumar and others, attested/certified copy of Poshahar purchase register, in order to save herself from conspiracy hatched against her. It is further case of the petitioner that the petitioner came to know through RTI that the form K (Prapatra ka) issued to the petitioner was approved by the Minister-in-charge of the department and not by the Chief Minister, however, the punishment order issued against the petitioner was approved by the Hon’ble Chief Minister.
SUBMISSION ON BEHALF OF THE PETITIONER
The learned counsel for the petitioner submits that the Disciplinary Authority, while passing the order impugned, without even considering the reply/second show cause reply filed by the petitioner, came to the conclusion that the petitioner is has been found guilty, during course of enquiry. The Disciplinary Authority did not consider/apply his mind to any of the defence taken by the petitioner in her second show cause reply and without assigning any reason for rejecting the explanation submitted by the petitioner, proceeded to pass the order of punishment against him. He submits that the non discussion or deliberation of the second show cause reply makes the entire procedure of asking the second show cause reply, upon submission of the enquiry report, from the delinquent redundant. The opportunity offered to the delinquent against the inconsistencies committed by the Enquiry Officer during course of enquiry and failure on the part of the Enquiry Officer and/or Presenting Officer in following the procedures, are required to be looked into by the Disciplinary Authority and for the said purpose, a second show cause notice is given in the rules. It is obligatory on the part of the Disciplinary Authority, before inflicting the harshest punishment, to consider the explanation submitted by the delinquent. The learned counsel for the petitioner further submits that the impugned order of punishment or the enquiry report does not disclose about any action taken against one Subhash Kumar, against whom same allegation, like the petitioner was made in the year 2004. Nothing has been done against him and only the petitioner has been targeted for punishment, which shows the malafide intention of the respondent authorities. He submits that from perusal of page 17 of the enquiry report, it would transpire that the petitioner with one Subhash Kumar connived to make illegal demand from the Aanganbadi sevika and sahaika. Despite enquiry report, nothing has been done against SubhashKumar and the doctrine of equality applies to all who are equally placed, even amongst the persons who are found guilty. He submits that the persons who have been found guilty can also claim equality of treatment, if they can establish discrimination, while imposing punishment, when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained, when punishment is being imposed. Punishment should not be disproportionate, while comparing the involvement of co-delinquent, who are parties to the same transaction or incident.
The learned counsel for the petitioner to support the above contention refers to and relies upon a judgment reported in 2013 (3) SCC 73, Rajendra Yadav v/s. State of Madhya Pradesh & Ors., wherein the Hon’ble Supreme Court of India in paragraph no.9 has held as under:
“9.The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.”
The learned counsel for the petitioner submits that the respondents chosen to single out the petitioner, while completely exonerating/ignoring Subhash Kumar, against whom identical allegation of connivance was leveled. The selective prosecution and punishment of the petitioner, constitute hostile discrimination and the same is in flagrant violation of Article 14 of the Constitution. He submits that the manner in which the Enquiry Authority recorded the deposition of witnesses, behind the back of the petitioner and called them personally, acting as a Presenting Officer, without granting opportunity to the petitioner to cross-examine them, is nothing but a colorable exercise of power. The evidence, recorded behind the back of the delinquent cannot be the basis to punish the delinquent. He submits that from perusal of Rule 43 (b) of the Bihar Pension Rules, it would transpire that even after the conclusion of the departmental inquiry, it is permissible for the government to withhold pension etc., only when a finding is recorded either in the departmental inquiry or in a judicial proceeding that the employee had committed grave misconduct in the discharge of her/his duty, while in office. He submits that from perusal of the enquiry report and the impugned order of punishment, it is clear that there is no finding to conclude that the petitioner has committed grave misconduct in discharge of her duty, while in office. Therefore, without coming to such finding in any departmental proceeding or judicial proceeding, no order of punishment, withholding 90% of pension, could have been passed. The learned counsel for the Petitioner further submits that in memo of charge, the allegation was of demand of money from Aanganbadi sevika and sahaika, however, admittedly, there is no single charge that the action of the petitioner caused any pecuniary loss to the government or amounts to grave misconduct, which is necessary for awarding punishment under Rule 43 (b) of the Bihar Pension Rule. He submits that this Hon’ble Court has already settled that for initiation and culmination of proceeding under Rule 43 (b) of the Bihar Pension Rules 1950, two essential ingredients must be satisfied namely, (i) the pensioner must be found guilty of grave misconduct or (ii) he must be found to have caused pecuniary loss to the government by misconduct or negligence. In the present case, neither there is any such allegation nor the same has been proved or any finding given on the same. Therefore, the order of punishment is in teeth of Rule 43 (b) of the Bihar Pension Rules and is required to be interfered with by this Hon’ble Court.
The learned counsel for the petitioner to support his contention above mentioned, refers to and relies upon a judgment of this Hon’ble Court dated 22.01.2026 passed in C.W.J.C. No. 5541 of 2022 (Ganesh Prasad Yadav vs The State of Bihar &Ors.), wherein in paragraph no.15 it has been held as under:
“15.In addition thereto, this Court is of the considered view that for initiation and culmination of proceedings under Rule 43(b) of the Bihar Pension Rules, 1950, two essential ingredients must be satisfied, namely: (i) the pensioner must be found guilty of grave misconduct; or (ii) he must be found to have caused pecuniary loss to the Government by misconduct or negligence. In this regard, a Coordinate Bench of this Court, in the case of Ganesh Prasad Yadav vs. State of Bihar &Ors., decided on 03.08.2021, after considering a catena of decisions of the Hon’ble Supreme Court of India, has held as under:
“20.What amounts to misconduct, has been lucidly explained by the Supreme Court in case of Union of India v. J Ahmed reported in (1979) 2 SCC 286. Paragraph 11 of which reads as under:-
“11.Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster [17 QB 536, 542]). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers [(1959) 1 WLR 698])]. This view was adopted in ShardaprasadOnkarprasad Tiwari vDivisional Superintendent, Central Railway, Nagpur Division, Nagpur [61 Bom LR 1596] , and Satubha K. Vaghela v. Moosa Raza [10 Guj LR 23] . The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
“Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.”
“In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik [AIR 1966 SC 1051 : (1966) 2 SCR 434 : (1966) 1 LLJ 398 : 28 FJR 131] in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India [(1967) 2 SCR 566 : AIR 1967 SC 1274 : (1967) 2 LLJ 249] the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta [AIR 1963 SC 1756: (1964) 2 SCR 104: (1963) 1 LLJ 679: 24 FJR 464] wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinmansignals in a train on the same track where there is a stationery traincausing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see NavinchandraShakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd. [(1978) 19 Guj LR 108, 120]). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." (Emphasis supplied).
“21.In a case of State of Punjab v. Ex-Constable Ram Singh reported in (1992) 4 SCC 54, the Supreme Court had again the occasion of dealing with the term 'misconduct' and laid down in paragraphs 5 and 6 as under:-
"5.Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law: carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
“6.Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order." (Emphasis supplied).
“22.Similar view has been taken by the Supreme Court in its subsequent decision in case of ZunjarraoBhikajiNagarkar v. Union of India and Others reported in (1999) 7 SCC 409, relying on the Supreme Court's decision in case of Ex Constable Ram Singh (supra).”
“23.In a subsequent decision in case of Inspector Prem Chand v. Govt. of NCT of Delhi and Others reported in (2007) 4 SCC 566, the Supreme Court held that an error of judgment per se is not a misconduct and a negligence simpliciter also would not be a misconduct.”
“24.It is culled out on the basis of the tentative notes of disagreement of the Disciplinary Authority itself read with the finding recorded by the Enquiring Authority that the calculation done by the petitioner of the amount of price neutralization was not found to be excessive because of the proper upkeep of the register but because the monthly rates were not obtained from Kudremukh Iron Ore Company Ltd.”
“25.Further, Mr. Shahi has rightly placed reliance on the Supreme Court's decision in case of Rajendra Yadav (supra). The Disciplinary Authority has not dealt at all with the finding recorded by the Enquiring Authority in this regard in his report and has thus admitted that no disciplinary action was initiated against others, who had also submitted the proposals in the same manner in which, the petitioner had done.”
“26.Situated thus, keeping in mind such findings of the Enquiring Authority in respect of which no disagreement had been recorded in the tentative notes of disagreement, as has been discussed hereinabove and the law on 'misconduct' as adjudged by the Supreme Court in its various judicial pronouncements noticed in this judgment, I am of the considered view that no case of grave misconduct has been made out against the petitioner, which is a prerequisite for action under Rule 43(b) of the Bihar Pension Rules in the absence of any pecuniary loss caused to the State; warranting punishment of withholding of pension. Resultantly, the impugned order requires interference. The impugned order dated 12.10.2017 issued vide letter no. 853 is hereby quashed, accordingly.”
The learned counsel for the petitioner further refers to and relies upon a judgment of this Hon’ble Court dated 23.04.2026 passed in C.W.J.C. No.7122 of 2025 (Anil Kumar v/s The State of Bihar &Ors.), wherein in paragraph nos.6, 11 & 18 it has been held as under:
“6.In support of the aforesaid submissions, reliance has been placed on the judgment of this Court in C.W.J.C. No. 4632 of 2020 (Harish Kumar Singh vs. State of Bihar &Ors.), particularly paragraph 10 thereof. Further reliance has been placed on the judgment in C.W.J.C. No. 5541 of 2022 (Ganesh Prasad Yadav vs. State of Bihar &Ors.), reported in 2026 (2) PLJR 170 (paragraph 15), as well as the judgment in C.W.J.C. No. 16576 of 2017 (Ganesh Prasad Yadav vs. State of Bihar &Ors.), reported in 2021 (3) PLJR 805 (paragraphs 18, 19, 20, and 26). Reliance has also been placed on the Division Bench judgment in L.P.A. No. 837 of 2023 (State of Bihar vs. Arun Kumar Dubey), particularly paragraph 21.”
11.After consideration of the arguments of both the parties and upon perusal of the record, it transpires to this Court that for the purpose of reaching on the conclusion with regard to the present case, it is necessary to quote the law and the relevant portion of the judgments on which petitioner has relied.
18.Upon perusal of the impugned order, it transpires to this Court that no pecuniary loss has been caused to the Government by the actions of the petitioner. In light of the applicable judgment, this Court further finds that the allegations made do not constitute gross misconduct.”
The learned counsel for the petitioner submits that the impugned order of punishment has been passed in the proceeding, wherein the Director, ICDS and the Hon’ble Minister had already held the charges to be untenable, however without any power vested under the Bihar CCA Rules 2005, proceeding was initiated against the petitioner. He submits that the petitioner is a retired widow lady and requires sympathetic consideration by this Hon’ble Court. She has not been paid a single farthing by the Department after her retirement in 2013. He submits that the Hon’ble Supreme Court of India in catena of decisions has been pleased to hold that pension is not a bounty or a matter of grace, dependent on the employee's will. Instead, it is a statutory, constitutional and earned right that serves as deferred compensation for past service rendered.
SUBMISSION ON BEHALF OF THE RESPONDENT -STATE
Per contra, the learned counsel appearing on behalf of the State submits that in the departmental proceeding, in which the petitioner participated, after retirement of the Conducting Officer, Mr. Debkant Diwakar on 30.06.2013, Amarnath Mishra, Additional Secretary in the Department was appointed as the Conducting Officer, vide memo no.3844, dated 05.08.2013. The Enquiry Officer fixed numerous dates and the petitioner was communicated the same vide various letters through post and not a single letter was returned unserved. He submits that in the meantime on 24.09.2014, the complainants, on whose complaint the departmental proceeding was initiated against the petitioner, appeared and recorded their statement and supported the allegation, which they had leveled on 30.01.2004, before the District Magistrate, Muzaffarpur in Janata Darbar. All the complainants deposed before the Enquiry Officer and supported the allegation against the Delinquent. The Conducting Officer provided ample opportunity to the petitioner to defend herself and sent all the documents through letter no.4689, dated 10.10.2014, for cross-examination by fixing different dates, however the petitioner did not choose to appear before the Conducting Officer and as such finding no other option, the Enquiry Officer submitted his enquiry report dated 28.04.2014 on 30.04.2015. One departmental proceeding was initiated by resolution contained in memo no.3416, dated 04.08.2010, whereby the allegation was of demanding illegal money, for which proceeding no.15 of 2013 was initiated by the Conducting Officer, in which the enquiry report was submitted on 28.04.2015, wherein all the charges were proved. Vide memo no.368, dated 31.01.2013 another proceeding was initiated for financial irregularities, financial embezzlement and defalcation. Several letters were sent to the petitioner to appear in the proceeding, however she did not choose to appear and left with no other option, paper publication was done, by fixing 28.01.2015 as the date. The petitioner appeared on the said date and thereafter again she did not appear on any other date. Finally, left with no other option, the enquiry report was submitted on 28.04.2015 by finding all the charges to be proved. The departmental proceeding was conducted in terms of the Bihar CCA Rules 2005, however the petitioner did not cooperate in the departmental proceeding and kept on raising the issues, which were not concerned with the proceeding and chose to appear in the proceeding as per her own wish. It is further submitted by the learned counsel for the State that the petitioner superannuated from service on 31.01.2013 and therefore the departmental proceeding was converted under Rule 43 (b) of the Bihar Pension Rules vide notification dated 20.10.2014. The petitioner assailed the said resolution by filing writ petition bearing C.W.J.C. No.22504 of 2014. He submits that after submission of the enquiry report, second show cause notice was issued to the petitioner on 14.05.2015. On 25.06.2015, the petitioner submitted her reply, however, the same was not found to be satisfactory and therefore the impugned order of punishment has been passed on 18.07.2016, whereby it has been directed that 90% of the pension of the petitioner will be forfeited. The proposal for awarding punishment was sent before the B.P.S.C., Patna, for its advice vide letter dated 14.09.2015 and after obtaining concurrence of the B.P.S.C., Patna, the impugned order of punishment has been passed. He submits that every effort was made by the respondent authorities to give opportunity to the petitioner, however she chose to appear as per her wish and therefore there is no procedural irregularity on the part of the respondent authorities. He submits that during her entire service period, the conduct of the petitioner was unsatisfactory and time and again she was proceeded with departmentally for various omission and commission, such as dereliction of duty, defalcation, corruption, which were found correct in the audit report and the inquiry initiated. The learned counsel for the State submits that the entire departmental proceeding conducted against the petitioner was in accordance with law. He submits that the writ petition filed by the petitioner bearing C.W.J.C. No.19980 of 2016, wherein the petitioner had prayed for quashing memo no.3374 dated 28.07.2016, whereby the petitioner was punished with an order of recovery of Rs.50,49,542.50/-, under the provisions contained in Bihar and Odisha Public Demands Recovery Act. The said writ petition was allowed and the order contained in memo no.3374 dated 28.07.2016, whereby the petitioner was punished with an order of recovery of Rs.50,49,542.50/-, has been set aside.
The learned counsel for the State to support his contention refers to and relies upon a judgment of the Hon’ble Full Bench of this Court reported in 2000 (1) PLJR 665, wherein the Hon’ble Full Bench has held as follows:
“It is open to an to an authority concerned to continue with a disciplinary enquiry which was initiated before his retirement. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect it can be allowed to continue. The Hon'ble Court holds as follows:-
(i)In case where a disciplinary proceeding has already been started, even if the person concerns attains the age of Superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary.”
CONSIDERATION
Having considered the rival submissions and after going through the records, it appears that the petitioner was appointed as a C.D.P.O. on 14.12.1985 and was posted at different places. While she was posted at Muzaffarpur on 31.01.2004, an allegation was leveled against her by some unknown persons in the Janata Darbar of the District Magistrate, Muzaffarpur. The District Magistrate directed the District Public Relation Officer, Muzaffarpur to conduct an enquiry and to submit his report. The report was submitted before the District Magistrate on 30.01.2004. Memo of charge was issued to the petitioner and she submitted her reply on 13.10.2007. The District Magistrate, Muzaffarpur vide his letter dated 08.02.2008 submitted/sent the details to the Director, Social Welfare Department, Government of Bihar, Patna, with regard to the earlier memo of charge issued to the petitioner, the reply submitted by her and the report of the enquiry, conducted by the District Public Relation Officer, Muzaffarpur, for taking necessary decisions.
The department/Director found the allegations leveled against the petitioner to be not tenable and the file was closed without any recommendation. Subsequently on the directions issued by the then Minister, Social Welfare, Government of Bihar, Patna, the disciplinary proceeding against the petitioner was initiated on 04.08.2010. So far the contention of the petitioner that since the petitioner was a Class-I officer, the departmental proceeding was to be initiated against her after obtaining permission from Hon’ble the Chief Minister of Bihar and not on the permission of the Minister, Social Welfare Department is concerned, it appears to this Court that the same cannot be sustained in view of the fact that the final order was passed, after getting approval of the Chief Minister, Bihar. The Conducting Officer as well as the Presenting Officer were appointed, however, the proceeding against the petitioner was kept on lingering, on one pretext or the other and the petitioner did not cooperate in the departmental proceeding. She kept on filing one letter or another, to remand the matter to the Additional Collector, Bhagalpur, who had submitted his report. She kept on levelling an allegation against the Enquiry Officer. In the meantime, the petitioner superannuated from service on 31.01.2013 and the departmental proceeding could not be completed for the one reason or another. The petitioner submitted an application/letter wherein she alleged that she has retired on 31.01.2013 and proceeding under CCA Rules can be carried against a government servant in service, therefore the same may not continue in violation of the provisions contained in CCA Rules 2005. The petitioner further submitted a letter that in terms of the judgment of the Hon’ble Supreme Court of India, the proceedings against the petitioner cannot continue beyond a period of 7 years and levelled certain allegations against the respondent no.6, who was the Joint Secretary, Department of Social Welfare at the relevant time, with regard to him taking personal interest in the departmental proceeding against the petitioner. She submitted that the respondent no.6 himself procured attendance of some of the so called witnesses through his direct correspondence and therefore she again submitted a representation before the Enquiry Officer. The departmental proceeding, which was initiated against the petitioner, was converted into a proceeding under Rule 43 (b) of the Bihar Pension Rules, since the petitioner had superannuated on 31.01.2013. She filed C.W.J.C. No.20889 of 2014, wherein she prayed for quashing the resolution dated 04.08.2010 and the resolution dated 21.03.2013, on the ground that the same were never served upon the petitioner. Subsequent to filing of the present writ petition, a final decision was taken in the departmental proceeding and vide memo no.3373 dated 28.07.2016, issued under the signature of the Joint Secretary, Department of Social and Welfare, Government of Bihar, Patna, the punishment of stoppage of 90% of the pension of the petitioner was passed, in terms of Rule 43 (b) of the Bihar Pension Rules. The petitioner assailed the same by filing C.W.J.C. No.8002 of 2017.
Both the writ petitions were heard together, and the judgment was reserved by this Court. It further appears from the records that earlier also a departmental proceeding was initiated against the petitioner, while she was posted at Runisaidpur on 30.11.2005. The petitioner filed a writ petition bearing C.W.J.C. No.15005 of 2005. This Hon’ble Court directed for conclusion of the departmental proceeding within a period of 9 months and pursuant thereto, the suspension of the petitioner was revoked on 17.11.2006. In the present proceeding, the petitioner kept on asking for one document or the other and she did not participate in the enquiry proceeding. After retirement of the Enquiry Officer, the respondent no.6 was appointed as the Conducting Officer on 05.08.2013. The Enquiry Officer fixed numerous dates and the petitioner was communicated the same by various letters through post. Not a single letter was returned unserved and the petitioner did not participate in the proceeding. The complainants, on whose complaint the departmental proceeding was initiated against the petitioner, appeared and recorded their statement on 24.09.2014. They supported the charge/allegation of receiving illegal gratification against the petitioner, which they had alleged on 30.01.2004 in the Janta Darbar of the District Magistrate, Muzaffarpur. All the complainants deposed before the Enquiry Officer. The petitioner was granted an opportunity vide letter dated 10.10.2014 for cross-examination of the witnesses, by fixing different date, however the petitioner did not choose to appear before the Conducting Officer and in absence of the appearance of the petitioner, the Enquiry Officer, left with no other option submitted his enquiry report on 28.04.2015. The petitioner had earlier also filed a writ petition bearing C.W.J.C. No. 22504 of 2014, by which she had assailed memo no.4868 dated 2014, by which the proceeding, which was converted under Rule 43 (b) by Department Resolution No.4736 dated 23.09.2013 was clubbed with Department Resolution No.1444 dated 21.03.2013. The said writ petition was disposed of as not pressed vide order dated 16.08.2023. The second show-cause notice was issued to the petitioner on 14.05.2015. She submitted her reply on 25.06.2015, however the Disciplinary Authority did not find the same to be satisfactory and proceeded to pass the order of punishment, whereby it has been directed that 90 % of the pension of the petitioner will be forfeited. The proposal for awarding punishment was sent before the B.P.S.C., Patna, for its advice vide letter dated 14.09.2015 and after obtaining concurrence of the B.P.S.C., Patna, the order of punishment dated 28.07.2016 has been passed. It appears from the record that during course of departmental proceeding, opportunity was granted to the petitioner to participate in the same, however for the reasons best known to her, she chose to appear as and when she desired to appear. This Court after going through the enquiry report finds that there is no infirmity in the enquiry report, since witnesses were examined and opportunity was granted to the petitioner to cross-examine the witnesses, however she did not do so. It appears from the record that while passing the impugned order of punishment, the Disciplinary Authority did not consider the second show-cause reply submitted by the petitioner and the defence taken by the petitioner in the second show-cause reply, which was elaborate one.
During course of hearing of the case, the learned counsel for the petitioner had made two fold submissions with regard to passing of order of punishment under Rule 43 (b) of the Bihar Pension Rules. The first submission was that since the punishment against the petitioner has been passed under Rule 43 (b) of the Bihar Pension Rules, therefore, it was incumbent upon the authorities concerned to come to the conclusion that the petitioner has committed grave misconduct in discharge of her duty, while in her office and without coming to such finding in any departmental proceeding or judicial proceeding, no punishment order, withholding of pension could have been passed. The second submission was that for initiation of departmental proceedings/conversion of departmental proceeding under Rule 43 (b) of the Bihar Pension Rules, two essential ingredients must be satisfied, namely (i) the petitioner must be found guilty of grave misconduct or (ii) he/she must be found to have caused pecuniary loss to the government by misconduct or negligence. It has been submitted that in the present case, neither there is any such allegation, nor the same has been proved or any finding has been given to that respect.
This Court upon careful examination of the records finds that the allegation against the petitioner is of taking bribe from Aanganbadi sevika and sahaika, which amounts to corruption and it comes under the definition of grave misconduct. Therefore, there is no infirmity in conversion of the proceeding under Rule 43 (b) of the Bihar Pension Rules.
In a recent decision of the Hon’ble Supreme Court of India reported in 2026 INSC 639 (Surekha Domaji Bele Vs The Executive Engineer, Testing Division, MSEDCL), the Hon’ble Supreme Court of India in paragraph no.106 to 110 has held as under:
“106.Dismissal from service is the severest form of penalty which can be inflicted on a delinquent employee in service jurisprudence. It brings the relationship of employer and employee to an end permanently, and ordinarily deprives the employee of the incidents of past service, including retiral benefits. It does not lead merely to the loss of the existing source of income for the employee but also for the dependent family members. Thus, it will have a devastating effect not only on the dismissed employee but also on all those who are dependant on the employee. Because of the severity of its impact not only on the employee but also to his dependents, the disciplinary authority must be very careful in seeking to impose the severest form of punishment of dismissal. It further carries consequences beyond immediate cessation of employment. It leaves a permanent stigma on the service record of the employee concerned, and may impair future employment prospects, particularly in public employment, statutory bodies, public sector undertakings and other regulated establishments where antecedents and service record are material. For this reason, dismissal must remain reserved for cases where the misconduct is of the most serious nature where elements of synthetic consideration would be undesirable and inappropriate.
107.The misconduct found proved against the Appellant relates to indiscipline, insubordination, and the consequent tampering with documents. We are not minimizing the importance of discipline in an office establishment. However, the material presently noticed does not show corruption, illegal gratification, moral turpitude, misappropriation of funds, proved pecuniary loss to the employer, public scandal, or conduct bringing the institution into public disrepute. The allegations substantially appear to arise out of internal office functioning and service-related conflict and did not play out in the public domain.
108.In the present case, we do not find that the competent authority undertook such an exercise of evaluating various relevant factors. The order does not reflect consideration of the Appellant's long service, past record, age, absence or presence of dishonesty, or absence or presence of actual loss as also commended by the Labour Court.
109.Even where the Regulations include dismissal as one of the permissible punishments for acts of misconduct, the authority is not relieved of its duty to consider all relevant factors to see whether the facts of the case truly warrant the most extreme form of penalty. The mere fact that a proved act falls within the broad category of "misconduct" under the Regulations does not mean that dismissal must follow as a matter of course.
110.Dismissal is ordinarily justified where the misconduct is of such gravity that continuance of the employee would be wholly incompatible with discipline, trust or institutional functioning. Cases involving corruption, illegal gratification, moral turpitude, misappropriation, acts causing substantial loss to the employer, or conduct showing complete unfitness for continued service stand on a different footing. (However, where the misconduct does not involve corruption, moral turpitude, financial misappropriation or proved loss to the employer, and where there is long service without much blemish, the disciplinary authority must carefully examine whether any lesser punishment would meet the ends of justice.”
From reading of the decision of the Hon’ble Supreme Court of India in the case of Surekha Domaji Bele (Supra), this Court finds that the Hon’ble Supreme Court of India has held that where the misconduct is of such gravity that continuance of the employee would be wholly incompatible with discipline, trust or institutional functioning. Cases involving corruption, illegal gratification, moral turpitude, misappropriation, acts causing substantial loss to the employer or conduct showing complete unfitness for continued service stand on a different footing. In the present case, the charges against the petitioner are with regard to accepting illegal gratification from Aanganbadi sevika and sahaika, which comes within the purview of grave misconduct. Therefore, this Court does not find any infirmity with regard to conducting the proceeding under Rule 43 (b) of the Bihar Pension Rules. However, from a bare perusal of the impugned order of punishment dated 28.07.2016, it would transpire that the Disciplinary Authority did not take into account the defence taken by the petitioner in her reply to the second show cause notice. The Disciplinary Authority proceeded to pass the order without any consideration of the said reply and therefore, in the considered opinion of this Court, the matter deserves to be remitted back to the Disciplinary Authority from the stage of passing fresh order, after consideration of the reply, which was submitted by the petitioner on 25.06.2015. Accordingly the order impugned contained in memo no.3373 dated 28.07.2016 passed by the Joint Secretary, Department of Social Welfare, Government of Bihar, Patna, whereby punishment of deduction of 90% of pension of the petitioner has been imposed, is set aside.
The matter is remitted back to the Disciplinary Authority for taking fresh decision, after considering the reply to the second show cause notice dated 25.06.2015, filed by the petitioner and to pass fresh order in accordance with law. This Court is conscious of the fact that the petitioner has superannuated from service on 31.01.2013 and the departmental proceeding against her was kept pending for a long time, however the allegation against the petitioner is grave in nature and the decision to remand has been taken after considering the Judgment of the Hon’ble Supreme Court of India passed in the case of Surekha Domaji Bele (Supra), wherein in paragraph no.111.10, the Hon’ble Supreme Court of India has held as follows:
“111.10.Since the Appellant has already crossed the age of superannuation, no direction for reinstatement can be issued at this stage. The monetary and retiral consequences, if any, shall abide by the fresh order to be passed by the competent authority in terms of this judgment and the applicable Regulations."
Accordingly, in view of the directions given above, the writ petition is allowed to the extent mentioned above. The Disciplinary Authority is directed to pass fresh order after considering the reply dated 25.06.2015, submitted by the petitioner within a period of three months from the date of receipt/production of a copy of the order. The fresh order to be passed by the Disciplinary Authority will be always open to challenge by the petitioner in accordance with law. The decision with regard to payment of entire pension to the petitioner, will abide by the fresh decision to be taken by the Disciplinary Authority.
Pending application(s), if any, shall also stand disposed of.