Md. Jafar Rakib @ Md. Zafar Rakib vs State Of Bihar

Heard learned counsel for the petitioner and learned counsel for the State.

The petitioner in the present case is questioning office order vide Memo No. 27/Charge-01-99/2019/7286/Patna dated 17.05.2022 (Annexure ‘4’ to the writ application) issued under signature of the Special Executive Officer, General Administration Department, Government of Bihar whereby and whereunder an exercise of power under Rule 43(b) and Rule 139(b) and (c) of the Bihar Pension Rules, 1950 (hereinafter referred to as the ‘Pension Rules’), the Disciplinary Authority has been pleased to withhold 20% of the Pension amount of the petitioner for next 5 years.

Brief Facts of the Case

The petitioner was posted on the post of Additional Collector, Katihar. He was subjected to a prosecution giving rise to Nagar Sahayak Katihar P.S. Case No. 318 of 2018 registered under Section 377 of the Indian Penal Code. Later on, vide Resolution contained in Memo No. 9899 dated 25.07.2018, the petitioner was suspended from service.

It is stated that vide Letter No. 2814 dated 11.09.2018 issued by the District Magistrate, Katihar, charges were framed in प्रपत्र ‘क’ upon which a disciplinary proceeding was initiated against the petitioner. It is stated that vide Memo No. 27/6333/Patna dated 30.06.2020 issued under signature of the Additional Secretary of the Government, General Administration Department, Bihar, the suspension of the petitioner was revoked. On the same date, the petitioner attained his age of superannuation. It is his statement that he was earlier promoted to the post of Additional Secretary but had not taken charge of the said post prior to his placement under suspension but on 30.06.2020 i.e. on the last date of his retirement, he submitted an application of joining on the post of Additional Secretary.

It is stated that after the retirement of the petitioner on 30.06.2020, the proceeding was converted in a proceeding under the Pension Rules. In the inquiry, the charges were not proved against the petitioner but the disciplinary authority differed with the inquiry report and recorded a note of difference of opinion. The petitioner was called upon to respond thereon but finally the Disciplinary Authority passed the impugned order dated 17.05.2022 withholding the 20% of the pension amount of the petitioner for next 5 years.

It is submitted that the petitioner filed a review application dated 15.06.2022 before the Special Executive Officer of the Government, General Administration Department, Bihar. A copy of the review application has been enclosed with the writ application. It is further stated that the review application preferred by the petitioner has been rejected vide Memo No. 12128 dated 18.07.2022.

Submissions on behalf of the petitioner

Learned counsel for the petitioner submits that on a bare perusal of the materials available on the record, it would appear that the Inquiry Officer submitted a report saying that the charge against the petitioner was not proved but the Disciplinary Authority differed with the inquiry report. In such circumstance, it was incumbent upon the Disciplinary Authority to serve upon the petitioner a note of difference together with the grounds on which the difference of opinion was formed by the Disciplinary Authority.

It is submitted that the petitioner was though called upon to submit his defence statement and in response the petitioner submitted his defence statement dated 25.08.2021 but the Disciplinary Authority did not consider the same which would be evident from the impugned order passed by the Disciplinary Authority. It is further submitted that exercise of power under Rule 139(b) and 139(c) may be done only after providing an opportunity to the concerned employee but in this case, no such opportunity was granted to the petitioner.

It is submitted that the impugned order of punishment as well as the order passed by the reviewing authority are liable to be quashed and cancelled.

Submissions on behalf of the State

A counter affidavit has been filed on behalf of the State. The Charge Memo against the petitioner is part of Annexure ‘A Series’ to the counter affidavit. The summary of the charge against the petitioner is being reproduced hereunder for a ready reference:-

A statement has been made in paragraph ‘14’ of the counter affidavit that the Disciplinary Authority examined the inquiry report of the Conducting Officer but did not agree with the findings of the Conducting Officer, hence, on the points of disagreement, vide Department’s Letter No. 8914 dated 13.08.2021, he requested the petitioner to file his defence statement. A stand has been taken that the impugned order has been passed by the Disciplinary Authority after examining the entire records, evidences and explanation/defence statement.

It is further submitted that the review petition filed by the petitioner was rejected on good and valid grounds vide Resolution Memo No. 7286 dated 17.05.2022.

Consideration

Having heard learned counsel for the petitioner and the State and upon perusal of the records, this Court finds from the order of the Disciplinary Authority as contained in Annexure ‘3’ to the writ application that the Disciplinary Authority has mentioned that on receipt of the inquiry report and the statement of defence of the petitioner, he had fully analysed the same and by differing with the defence statement, the order has been passed under Rule 43(b) and Rule 139(b) and (c) of the Pension Rules. Paragraph ‘5’ to ‘8’ of the impugned order are as under:-

The Reviewing Authority has passed the order as contained in Annexure ‘6’ to the writ application. The Reviewing Authority has taken note of the facts leading to initiation of the disciplinary proceeding against the petitioner and thereafter proceeded to take a view that the petitioner has not stated any new fact in his review application. Paragraph ‘5’ to ‘10’ of the order passed by the Reviewing Authority are being quoted hereunder for a ready reference:-

From a bare reading of the orders passed by the Disciplinary Authority and the Reviewing Authority, it is crystal clear that both the authorities have done only empty formality. Neither Disciplinary Authority nor the Appellate Authority has considered the statement of defence of the petitioner. Both the orders are non-speaking and unreasoned order.

This Court, therefore, sets aside both the orders and directs the Disciplinary Authority to take fresh steps after the stage of submission of inquiry report, comply with the principles of natural justice and the procedures prescribed under the Bihar Government Servants (Classification, Control and Appeal) Rules/ Pension Rules as may be applicable to the petitioner and pass an appropriate order within a period of four months from the date of receipt/production of the copy of this order.

This writ application is allowed to the extent indicated hereinabove.