Mangal Singh vs The State of Bihar and Others

Navin Sinha, J.—Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 1.7.2009 dismissing him from service retrospectively with effect from 17.7.1992.

In pursuance of the departmental proceeding No. 23/78, the petitioner was dismissed on 6.7.1987 informed by memo dated 10.7.1987. The order of punishment and the appellate order were set aside with liberty to the disciplinary authority for passing a fresh order in accordance with law.

On 17.7.1992, the respondents passed a fresh order for dismissal with effect from 17.7.1992. Appeal was rejected on 17.1.1994. It is crucial to notice that the petitioner superannuated on 30.1.1994. In C.W.J.C. No. 3520/94, it was held that the petitioner had been subjected to hostile discrimination in imposition of the punishment which was not appropriately considered even at the stage of memorial. Noticing his superannuation directions were given to decide the issue in accordance with law by order dated 7.9.1995. It may only be noticed that the order of punishment was not set aside.

The petitioner questioned the fresh order passed by the respondents in C.W.J.C. No. 5698/96. The order of removal from service was set aside on 15.2.2008. On 23.11.2008 the respondents served a fresh memo of charge upon the petitioner in exercise of powers under Rule 43(b) of the Bihar Pension Rules.

The allegations which led to the charges being framed against the petitioner related to 21/22.8.1977.

If the order of punishment was set aside in C.W.J.C. No. 5698/96, the respondents could have proceeded from the stage of irregularity in the conduct of the departmental proceeding. Rather than doing so, they resorted to the more onerous procedure of issuing a fresh memo of charge on 23.11.2008 with respect to an event of the year 1977, clearly beyond the period of four years reckoned from 23.11.2008.

No further discussion is required that the fresh proceeding culminating in the order of punishment was barred under Rule 43(b) of the Bihar Pension Rules as held in State of Bihar and others Vs. Mohd. Idris Ansari, .

The impugned order suffers from a further vice that no order of dismissal can be given with retrospective effect. The order is held to be bad on both counts. The petitioner is held entitled to all consequential benefits in accordance with law. The writ application is allowed.