Chandra Mohan Choudhary vs State Of Bihar

In the instant petition, petitioner has prayed for the following reliefs:-

“For issuance of writ in the nature of Writ of certiorari quashing the Letter issued vide Memo No. 1666 dated 10.02.2011 under the signature of the Officer on Special Duty, General Administration Department, Govern-ment of Bihar, Patna whereby, the Accountant General Bihar, Patna has been communicated about the decision of the State Government to dedcut 25% of the Petitioner’s admissible pension in exercise of the power under Rule 43(b) of the Bihar Pension Rules.”

The petitioner while working as Deputy Develop-ment Commissioner, Supaul he was arrested in Nigrani P.S case No. 05 of 2006 based on the statement of Bachneswar Jha under Section 164 of Cr.P.C, thereafter, he was placed under suspension. Parallel proceedings were launched against the petitioner. In the criminal proceedings petitioner is stated to have discharged. On the other hand, in the disciplinary proceedings charge memo was issued on 12.08.2006 and it was concluded in imposition of penalty of withholding or 25% of the pension while invoking Rule 43(b) of Bihar Pension Rules on 10.02.2011. Feeling aggrieved and dissatisfied with the order imposition of penalty the petitioner has presented this petition.

Learned counsel for the petitioner submitted that presenting officer was not appointed to present the departmental case before the enquiry authority. Therefore, there was violation of subrule (5) of Rule 17 of Bihar Government Servants ( Classifica-tion, Control and Appeal) Rules, 2005 (for short “CCA Rules, 2005”).

Learned counsel for the petitioner submitted that co-delinquent Mundrika Choudhary was also subjected to disciplinary proceedings and concluded in imposition of penalty was subject matter of CWJC No. 15639 of 2010. This Court has set aside the order of penalty.

Per contra, learned counsel for the respondent-state on instruction submitted that it is true that presenting officer was not appointed to present the departmental case before the enquir-ing authority. However, he has sought for remanding the matter to the discplinary authority having regard to the serious alleged alle-gations levelled against the petitioner in the light of the Apex Court decision passed in Civil Appeal No. 1567 of 2019 (The State of Uttar Pradesh & Ors. vs. Prabhat Kumar).

Heard learned counsel for the respective parties.

The petitioner was subjected to disciplinary proceed-ings and it was concluded in imposition of penalty of deducting 25% of the pension on 10.02.2011. The petitioner has questioned the validity of the aforesaid order in the light of the order passed in CWJC No. 15639 of 2010 dated 19.06.2018. He has also submit-ted that presenting officer has not been appointed to present the case on behalf of the department before the enquiring authority and it is violation of sub-rule (5) of Rule 17 of Rules, 2005. Since, the State-respondent counsel has submitted that there is a lacuna in the disciplinary proceedings matter requires for remand, having re-gard to the alleged serious allegations levelled against the peti-tioner. The contention of the petitioner counsel with reference to Mundrika Choudhary case is concerned the Co-ordinate Bench has not taken note off Apex Court decision in the case of MD ECIL vs. Coal India para 46 to 50 reads as under:-

“46. In the last, the delinquent has submitted that this Court must issue directions for his re-instatement and payment of arrears of salary till date. Shri Bandopadhyay, learned Senior Counsel appearing for the appellants, has ve-hemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the princi-ple of “no work-no pay”. The delinquent had been practising privately, i.e. has been gain-fully employed, thus, not entitled for back wages. Even if this Court comes to the conclu-sion that the High Court was justified in setting aside the order of punishment and a fresh en-quiry is to be held now, the delinquent can sim-ply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry.

It is a settled legal proposition that the re-sult of the fresh enquiry in such a case relates back to the date of termination. The submis-sions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punish-ment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer, Punjab Dairy Development Corpn. Ltd. v. Kala Singh and Graphite India Ltd. v. Durgapur Projects Ltd.

In ECIL v. B. Karunakar, this Court held that where the punishment awarded by the dis-ciplinary authority is quashed by the court/tri-bunal on some technical ground, the authority must be given an opportunity to conduct the en-quiry afresh from the stage where it stood be-fore the alleged vulnerability surfaced. How-ever, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.

The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punish-ment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of jus-tice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh , Akola Taluka Education Society v. Shivaji and Balasaheb Desai Sa-hakari S.K. Ltd. v. Kashinath Ganapati Kam-bale.

In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, can-not be entertained and is hereby rejected. In case the appellants choose to hold a fresh en-quiry, they are bound to reinstate the delin-quent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitle-ments would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observa-tions, the appeal stands disposed of. No costs.”

Further, Apex Court has reiterated the principle laid down in the case of MD ECIL in State of Uttar Pradesh and Ors. vs. Prabhat Kumar cited (supra). In the light of these facts and circumstances, this Court cannot simply set aside the order of punishment. On the other hand, it is a case for remand for the rea-sons that there is serious alleged allegations levelled against the petitioner which is required to be enquired into. Since, this Court is setting aside the order of penalty order 10.02.2011 on technical-ity that there is non appointment of presenting officer and in viola-tion of sub-rule (5) of Rule 17 of CCA, Rules.

The disciplinary authority is hereby directed to com-pelete the enquiry proceedings from the defective stage and in ac-cordance with Rule 17 and any other relevant Rules 2005. Both the disciplinary authority and enquiring authority is hereby directed to examine relevant provision of law under CCA Rules and proceed to complete the enquiry proceedings within a period of three months from the date of receipt of this order.

Regulating the intervening period form 10.02.2011 till passing of fresh order is required to be regulated in accordance with law. On this issue, the disciplinary authority is hereby di-rected to pass speaking order if necessary notice shall be given to the petitioner before regulating the aforesaid intervening period as to how it has to be regulated. Such decision shall be taken within a period of three months from the date of passing a fresh order in the departmental enquiry.

Accordingly, order dated 10.02.2011 stands set aside. The present writ petition stands allowed in part.