The State of Bihar and Others vs Serajuddin Ahmad

We have heard counsel for the Appellant on the point of limitation.

We are satisfied with the grounds made out in the limitation petition. The delay in filing the appeal is therefore condoned.

We have heard counsel for the parties, and we are satisfied that no charge or charges were framed against the Respondent at any stage. At best, an explanation was called for. For the purpose of Rule 43(b) of the Bihar Pension Rules, as provided in the explanation of the rule, the departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date.

In the instant case since no charge was ever framed against the Respondent, it cannot be said that a departmental proceeding has been instituted against him while he was in service.

Even if it is assumed that the departmental proceeding was instituted on 18.9.1997, the same cannot be sustained on two grounds:

Firstly, the misconduct was committed in the year, 1989 and therefore a proceeding u/s (sic-Rule) 43(b) of the Bihar Pension Rule could not be instituted, if the misconduct alleged was committed four years or more before the date on which proceeding had been instituted.

Secondly, under the proviso to Rule 43(b), such proceeding has to be conducted in accordance with the Procedure applicable to a proceeding in which an order of dismissal from service may be passed. It is not disputed that before an order of dismissal can be passed by the appropriate authority, a regular enquiry should be conducted.

In the instant case, admittedly, no such enquiry was ever conducted, and only on the basis of the explanation furnished by the Respondent a decision was taken to curtail his pension under Rule 43(1)(b) of the Pension Rules.

We may only record that we permitted the Additional Advocate General No. III to go through the entire record and to show us if a charge was framed at any stage. He has not been able to satisfy us that a charge was ever framed at any stage.

This appeal is therefore dismissed.