IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2292 of 2002
Nand Kishore Singh ... ... Petitioner
Versus
The State of Jharkhand & Ors. ... Respondents
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CORAM : HON'BLE MR. JUSTICE AJIT KUMAR SINHA
For the Petitioner: Mr. Ananda Sen, Advocate
For the Respondent: Mr. Ravindra Prasad
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C.A.V. on 19.02.2009 Pronounced on 24. 03.2009.
ORDER
07/24 .03.2009. The present writ petition has been preferred for the
following reliefs:-
1) For an appropriate writ in the nature of Certiorari for quashing
the order dated 13.3.2002 passed by the Commissioner-cum-
Secretary, Department of Labour, Employment & Training,
Government of Bihar, Patna whereby and whereunder the
punishment has been inflicted upon the petitioner whereby it
has been decided that the petitioner will not get his salary for
the period 30.10.1999 to 08.12.1999, i.e. for the period in
which the petitioner was in custody and further it has been
decided that the said period will be treated as a break in his
service and a further punishment has been inflicted that 10% of
his pension be deducted with cumulative effect,
2) For a further writ of or in the nature of mandamus be issued
from this Hon'ble Court directing the concerned respondents to
pay the entire retiral benefits of the petitioner forthwith and
immediately without giving effect to the order impugned.
The facts in brief are stated as under:-
The petitioner joined as Inspector of Factories pursuant to
selection through Bihar Public Service Commission on 1.9.1965 and
his services were confirmed on 1.11.1974. On 30.10.1989 the
petitioner was involved in a criminal case for demand and taking
bribe and he was accordingly arrested and later on 9.12.1999 he
was released on bail. However, on 18.3.2000 final form was
submitted in the criminal case with an observation that the case
was false and accordingly on 24.5.2000 the criminal case was
dropped. On 16.12.1999 the Commissioner-cum-Secretary,
Department of Labour, Employment and Training, Government of
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Bihar, suspended the petitioner under Rule 9 of the Bihar Service
Code from the date of his arrest till further order. On 31.8.2000 the
Hon'ble High Court, Ranchi Bench in C.W.J.C. No. 1036 of 2000
quashed the suspension order with a liberty to pass fresh order of
suspension under Rule 100 of the Bihar Service Code. Petitioner
joined his duty after bail and informed his joining to the authorities
vide letter No. 258/C, dated 10.12.1999 which was received on
14.12.1999
.
It appears that the suspension order was withdrawn on
24.10.2001 but the salary for the period of custody was withheld
and a departmental proceeding was initiated and memorandum of
charge was handed over. The petitioner preferred C.W.J.C. No. 342
of 2001 before this Court and a direction was issued to conclude
the departmental proceeding within three months. On 26.4.2001
the petitioner was informed by letter dated 3.3.2001 that the
departmental proceeding was being converted under Rule 43(B) of
the Bihar Pension Rules.
The main contention raised by the counsel for the petitioner
is that once the criminal case was dropped and closed there was no
need for initiation of disciplinary proceeding. It has further been
contended that the order was illegal, without any reason and
showed a total non-application of mind.
It has also been alleged that no second show-cause notice
was given before inflicting such punishment and further a double
proceeding on the self same charges could not continue in view of
the criminal case having been dropped. More so when the
petitioner has already retired.
The respondent in their counter-affidavit have submitted
that the criminal case was dropped since the informant stopped
taking interest and the department was fully empowered to initiate
departmental proceeding against the delinquent employee for the
charge which has not been decided by the criminal court. It has
also been stated that the full opportunity was given and after
considering the enquiry report the order impugned and memo No.
84 dated 13.3.2002 was passed.
I have considered the rival contention and the submission
and at the very outset it would be relevant to clarify that the law
with regard to parallel proceeding are well settled and both the
criminal proceedings as well as the departmental proceeding can
continue simultaneously.
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In the instant case the departmental proceeding was
initiated against the petitioner before his superannuation on
31.1.2001 and after his retirement the same was converted into a
proceeding under section 43(B) of the Bihar Pension Rules-1950
which has the provisions to deal with the retired employee against
whom the enquiry is pending or even contemplated for the charges
of misconduct causing pecuniary loss to the Government or any
criminal charge. It is also clear that the criminal case was dropped
on technical ground and the petitioner was not honorably
discharged. In any case even acquittal in a criminal case does not
bar domestice /disciplinary enquiry.
The fact remains that proper opportunity was given and
there was full compliance of the principles of natural justice.
However, the petitioner did not cooperate in the departmental
proceeding inspite of orders passed by this Court and it was in
these background that the proceeding was ex-parte.
The impugned order dated 13.3.2002 has been passed after
thorough and careful examination of the facts and after considering
the enquiry report. Even the approval has been obtained from the
Bihar Public Service Commission under Rule 49 of the Bihar Pension
Rules 1950.
Considering the aforesaid facts and circumstance of the
case, I am not inclined to interfere in this writ petition and the
same being devoid of any merit is accordingly dismissed.
(Ajit Kumar Sinha, J.)
Jharkhand High Court, Ranchi
Dated the 24th March, 2009
D.S./N.A.F.R.