JUDGMENT
Barin Ghosh and Samarendra Pratap Singh, JJ.
1. If a disciplinary proceeding has already been initiated against a government employee before his superannuation, the same can be concluded after his superannuation by taking recourse to Rule 43B of the Bihar Pension Rules.
2. Rule 43B authorizes withholding of a part or full pension payable to the employee concerned as also recovery of loss sustained by the government by reasons of negligence or misconduct on the part of the employee concerned from the pension payable to the employee concerned.
3. In the instant case a notice dated 1.12.1992 was issued to the appellant whereby and under it was held out that he has not returned a measurement book as particularized in the said notice. The notice directed the appellant to return the subject measurement book within a period of 15 days. The notice threatened that on failure on the part of the appellant to return the measurement book a departmental proceeding would be initiated. The said notice was replied by the appellant, when he stated that the subject measurement book was submitted by him to his superior officer, namely the Executive Engineer. The appellant was then working as Assistant Engineer. The matter rested there.
4. A disciplinary proceeding against a government employee can be initiated either under Rule 55of the Central Government (Classification, Control and Appeal) Rules or under Rule 55A thereof. While Rule 55of the Disciplinary Rules requires conclusion of a disciplinary proceeding, initiated by invoking the provisions contained therein by a full fledged enquiry, Rule 55A authorizes conclusion of the disciplinary proceeding initiated there under without a full fledged enquiry.
5. On 11.8.1994 a charge sheet was issued to the appellant and thereby a disciplinary proceeding was initiated against him. The said charge sheet did not indicate that the same is being issued under Rule 55 A of the Disciplinary Rules. The charge sheet dated 11.8.1994 suggests that the disciplinary proceeding initiated there under was initiated under Rule 55 of the Disciplinary Rules.
6. The appellant retired on 28.2.1997. Prior to 28.2.1997 no enquiry was held to conclude the disciplinary proceeding initiated pursuant to the charge sheet dated 11.8.1994. Prior to 28.2.1997 no disciplinary proceeding was initiated against the appellant in terms of the threat spelt out in the notice dated 1.12.1992 either under Rule 55 or under Rule 55A of the Disciplinary Rules. After the appellant retired no enquiry was conducted to conclude the disciplinary proceeding initiated by issuing the charge sheet dated 11.8.1994. After the appellant retired no proceeding under Rule 43B was initiated either in respect of the matter dealt with in the notice dated 1.12.1992 or in relation to any other matter.
7. However, by two orders dated 29.12.1997 and 7.4.1998 the appellant was purported to be punished under Rule 43B of the Pension Rules. A look at Rule 43 of the Pension Rules would amply demonstrate that a disciplinary proceeding, if initiated before the employee concerned has retired, can be concluded by awarding punishment as are permissible by the said Rules. The disciplinary proceeding initiated by issuing the charge sheet dated 11.8.1994 could entail a punishment as provided in Rule 43B of the Pension Rules, provided the same had been concluded in terms of the provisions contained in Rule 55 of the Disciplinary Rules. In order to conclude such a disciplinary proceeding as is the mandate of Rule 55 of the Disciplinary Rules, an enquiry was must. Admittedly no such enquiry has been conducted and accordingly the said disciplinary proceeding could not be concluded by any of the orders dated 29.12.1997 and 7.4.1998.
8. As aforesaid, as on the date of retirement of the appellant no other disciplinary proceeding was pending against him and after his retirement no proceeding under Rule 43B was initiated against him. In the circumstances, the conclusion would be that both the orders dated 29.12.1997 and 7.4.1998 are bad in law.
9. In the writ petition it was contended by the appellant that the notice dated 1.12.1992 was a show cause issued under Rule 55A of the Disciplinary Rules. It was the contention of the appellant that he was served with no notice converting the said disciplinary proceeding into a proceeding under Rule 43B of the Pension Rules. In opposition to the writ petition it was contended on behalf of the State that the subject disciplinary proceedings were duly initiated against the appellant and the same were concluded on the report of the Flying Squad. A learned Single Judge of this court, who dealt with the writ petition, felt that a proceeding initiated under Rule 55A of the Disciplinary Rules could be concluded in the manner as it was concluded by one of the impugned orders. The learned Judge further felt that the disciplinary proceeding pursuant to the charge sheet dated 11.8.1994 could also be concluded on the basis of the findings of the Flying Squad.
10. The fact remains that under no stretch of imagination the notice dated 1.12.1992 can be considered to be a notice by which a disciplinary proceeding under Rule 55 A of the Disciplinary Rules could be initiated. The fact remains that the charge sheet dated 11.8.1994 was issued on the basis of the report of the Flying Squad. As aforesaid, the charges contained in the said charge sheet were required to be enquired into. By issuing the said charge sheet, the disciplinary authority had invoked the provisions contained in Rule 55 of the Disciplinary Rules. The fact as stands admitted no enquiry was conducted apart from the enquiry made by the Flying Squad before the charge sheet was submitted.
11. In those circumstances, the appeal is allowed. The order under appeal is set aside and at the same time the writ petition is allowed and the impugned orders dated 29.12.1997 and 7.4.1998 are quashed.
