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
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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)