IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3459 of 2010
1. UMESH PANDEY S/O SRI RAMESHWAR PANDEY R/O VILL.- PATHERHA,
P.S.- MAHARAJGANJ, DISTT.- SIWAN
Versus
1. THE STATE OF BIHAR THROUGH THE SECRETARY DEPTT. OF HOME,
GOVT. OF BIHAR, PATNA
2. THE SECRETARY, DEPTT. OF HOME, GOVT. OF BIHAR, PATNA
3. THE DIRECTOR GENERAL OF POLICE BIHAR, PATNA
4. THE DEPUTY INSPECTOR GENERAL OF POLICE (PERSONNEL) BIHAR,
PATNA
5. THE SUPERINTENDENT OF POLICE (B) SPECIAL CELL, BIHAR, PATNA
6. THE STATE TRANSPORT COMMISSIONER, BIHAR, PATNA
7. THE JOINT STATE TRANSPORT COMMISSIONER, BIHAR, PATNA
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02. 14.09.2010 Heard learned counsel for the petitioner and
learned counsel for the State.
The petitioner is stated to have joined
service in the year 1984. As on 11.9.2008, when he
was granted V.R.S. under Rule 74 (b) of the Bihar
Service Code, he fulfilled the conditions for the same.
On 9.2.2003 he was placed under
suspension, while on deputation in the Transport
Department for less revenue collection. Charges were
framed on 11.3.2003 replied to by him on 5.4.2003.
On 14.1.2004 he was sent back to his parent (Home)
department. He represented on 7.2.2007 that the
departmental proceedings were still pending. On
21.4.2008 the order of suspension was revoked by the
parent (Home) department with directions to expedite
the departmental proceedings.
He applied for V.R.S. on 4.8.2008. This
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application was allowed by Letter No. 1577 of 2009 on
11.09.2008 with effect from 30.9.2008.
Learned counsel for the petitioner questions
the continuance of the departmental proceedings even
thereafter affecting his retiral benefits.
Learned counsel for the State prays for time
to seek instruction and/or issuance of directions to
conclude the departmental proceedings expeditiously.
The writ petition raises a pure question of
law. Rule 74 (b) of the Bihar Service Code reads as
follows:-
“74 (b) (i). Notwithstanding
anything contained in the preceding
sub-rule, a Government servant may,
after giving at least three months
previous notice, in writing, to the
appointing authority concerned retire
from service on the date on which such
a Government servant completes thirty
years of qualifying service or attains fifty
years of age or on any date thereafter to
be specified in the notice:
Provided that no Government
servant under suspension shall retire
from service except with the specific
approval of the State Government.”
If the respondents had chosen not to accept
his application for Voluntary Retirement in view of the
pendency of the departmental proceedings, matters
would have been entirely different. If the petitioner was
making a claim for a deemed retirement under Rule 74
(b) on expiry of the period of three months of notice,
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again matters have been very different. But when the
respondents by a conscious executive decision accept
his request for Voluntary Retirement and relieved him,
the master servant relationship stood severed. If the
master servant relationship stood severed by a
conscious act of the respondents, the petitioner
remains no more a Government servant amenable to
proceedings under the service Rules.
The allegations did not relate to any
financial misappropriation or embezzlement or gross
misconduct. The petitioner has been allowed Voluntary
Retirement by a conscious policy decision during the
pendency of the proceedings. A presumption arises
that the respondents themselves did not consider it a
matter serious enough to continue with the master
servant relationship for the purposes of a departmental
proceedings.
The suspension and departmental
proceedings are deemed to have ended by necessary
implication from the date of his voluntary retirement.
The order of suspension dated 9.2.2003 and
the departmental proceedings are therefore held to be
no more sustainable or existing with effect from the
date of retirement. If the respondents have not
initiated any proceedings under 43 (b) of the Pension
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Rules against the petitioner prior to the institution of
the writ application on 17.2.2010 they are precluded
from doing so.
The application stands conditionally allowed
and the petitioner is held entitled to his post
retirement benefits subject to the fulfillment of the
condition.
The application is allowed.
P.K. ( Navin Sinha, J.)