High Court Patna High Court - Orders

Yashwant Kumar vs The State Of Bihar &Amp; Ors on 8 April, 2011

Patna High Court – Orders
Yashwant Kumar vs The State Of Bihar &Amp; Ors on 8 April, 2011
             IN THE HIGH COURT OF JUDICATURE AT PATNA
                             CWJC No 15115 of 2004
             Yashwant Kumar, son of Shri Prabhuchand Munshi, resident of village -
             Barnausa, Police Station - Silao, District - Nalanda      -Petitioner
                                      Versus
         1    The State of Bihar
         2    Secretary, Health Department, Government of Bihar, Patna
         3    Director-in-Chief, Health Services, Bihar, Patna
         4    Director, Health Services, Bihar, Patna
         5    Civil Surgeon, Nalanda at Biharsharif
         6    District Tuberculosis Officer, Nalanda at Biharsharif
         7    Treasury Officer, Nalanda

                                             ***
                 For the petitioner      :         M/s Naresh Chandra Verma &
                                                   Laxmikant Tiwary, Advocates

                 For the S t a t e       :         M/s D K Sinha, AAG II &
                                                   Swapnil Kumar Singh, AC to AAG II

                                             ***

8   08.04.2011                       The petitioner retired from the Health Department on

31.11.1995. When his pension and other retiral benefits were not being

paid, he approached this Court by filing CWJC No 6833 of 1996. This

Court disposed of the writ petition by order dated 02nd May, 1997 fixing a

time schedule to pay the admitted dues of the petitioner. Even this was

not complied with. Petitioner filed MJC No 2573 of 1997 for initiating

contempt proceedings against the opposite parties for not complying the

order of this Court passed in the writ proceedings. During pendency of

this application for initiating contempt proceedings, allegations were

made against the petitioner of certain defalcations. This Court, in those

proceedings, vide order dated 06.04.1999, directed the opposite parties to

file supplementary show cause giving therein the details of proceedings, if

any, initiated with reference to Rule 43 (b) of the Bihar Pension Rules,

1950, first information report, if any, lodged against the petitioner and
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details relating to pension, gratuity etc. The opposite parties filed their

supplementary show cause clearly admitting that neither proceedings

under Rule 43 (b) nor any notice under Section 139 of the Bihar Pension

Rules had been initiated or issued and steps were being taken to pay the

retiral dues. In view of the aforesaid facts, this Court disposed of the said

application on 18.05.1999 for initiating contempt proceedings with a

direction to clear the retiral dues of the petitioner within a period of two

months. Further, liberty was given to the State to initiate proceedings in

respect of any allegation of recent four years within one month from the

order. This order of this Court passed in the contempt proceedings is

Annexure-1 to the writ petition. It appears that after these proceedings

were, thus, terminated, State first quantified the amount that was

recoverable from the petitioner and then as if there was a direction from

the Court to initiate proceedings under Rule 43 (b) read with Rule 139 of

the Bihar Pension Rules, initiated such a proceeding by issuance of notice

dated 29.10.1999 (Annexure-3) for recovery. The petitioner responded.

Thereafter, on 16.06.2000, enquiry report was submitted. Learned

counsel for the petitioner has drawn my attention to the enquiry report to

show that the dereliction alone is of the year, 1993 and 1994 and not

beyond that. It appears that the authority that is the Director-in-Chief,

Health Services, Bihar accepted the enquiry report, issued notice to the

petitioner which, as per petitioner’s allegations, did not contain the

enquiry report and upon petitioner’s response, passed orders in terms of

Rule 43 (b) directing reduction of pension by 10% by order dated

03.10.2002. It is, in effect, challenge to this order that the writ application
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has been filed. It may be noticed here that the petitioner has come to this

Court against the said order but was asked to make a representation to the

Director-in-Chief, Health Services who has ultimately reaffirmed his

earlier order by order dated 02.04.2004 (Annexure-10) and, thus, these

two annexures that is Annexures-6 and 10 are assailed.

Counter affidavits being on record, the matter was heard for

disposal at the stage of admission itself with consent of parties.

Learned counsel for the petitioner, apart from other issues,

has raised a short technical issue. He submits that in view of the specific

provision of Rule 43 (b) that a proceeding in terms of Rule 43 (b) of the

Bihar Pension Rules could not be initiated in the present case in view of

Clause (a) (ii) of the proviso to Rule 43 (b). The said provision, inter alia,

puts a limitation on the right of the State to initiate proceedings against an

employee who has superannuated. The Clause, inter alia, provides that

such a departmental proceeding, if not initiated during service tenure of an

employee, could only be initiated in respect of event which took place not

more than four years before the institution of such proceeding. Thus, we

have to see whether this period of limitation applies or not.

From the facts noticed above and as discussed in detail in

the enquiry report, the dereliction is of the year, 1993 and 1994.

Undisputedly, the proceedings with reference to Rule 43 (b) read with

Rule 139 of the Bihar Pension Rules was initiated for the first time on

29.10.1999 and that too virtually holding that this Court had directed to

initiate the proceedings. I must note and the learned State Counsel fairly

does not contend otherwise that the order dated 18.05.1999 as passed in
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the application for initiating contempt proceedings, as noted above, does

not issue such direction rather it gives liberty to the State to initiate

proceedings under Rule 43 (b) of the Bihar Pension Rules clearly

mentioning in respect of event within four years. The caution is writ

large. The proceedings having been initiated more than five years after

the event and almost four years after petitioner superannuated cannot be

held to be valid in terms of Rule 43 (b) of the Bihar Pension Rules, as

noticed above. The statute of limitation, as provided therein, bars

initiation of any such departmental proceeding.

On this ground alone, the writ petition has to be allowed.

Annexures-6 and 10, accordingly, are set aside. Any amount withheld or

recovered pursuant to orders passed in the said proceedings including

order for withholding pension passed pursuant to the said proceedings are,

thus, annulled and/or quashed. Petitioner would be entitled to receive

back all those amounts within 30 days of production of a copy of order of

this Court before the Director-in-Chief, Health Services whose

responsibility would be to see timely enforcement of the orders of this

Court.

The writ petition is allowed.

M.E.H./                                         (Navaniti Prasad Singh)