Patna High Court
Baidya Nath Dubey vs State Of Bihar And Ors. on 22 July, 2005
Equivalent citations: 2005(3)BLJR1761
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. Heard Dr. M.P. Shukla for the petitioner, Mr. Navendu Kumar, JC to Standing Counsel No. VI, and Mr. Ajay Tripathi for the Accountant General, Bihar, Patna.
2. According to the writ petition, the petitioner had joined the services of the Bihar Government as a Class III employee on 14.11.1962, and superannuated with effect from 31.7.2001, while functioning as an Upper Division Clerk from the office of the Employment Exchange, Oarbhanga. He was implicated in criminal case at his village home wherein allegations were levelled against him, inter alia, under Section 307 of the Indian Penal Code. He was taken into custody from 25.9.1986 to 1.10.1986. He was under suspension for the period 25.9.1986 to 2.5.1996. He was convicted by the trial Court, inter alia, under Section 307, IPC. The petitioner had preferred Criminal Appeal No. 495 of 1986 (Baidya Nath Dubey v. State of Bihar, which was disposed of by the judgment dated 8.5.1996 (Annexure 6) of a Division Bench of this Court whereby the appeal was allowed in part, the petitioner's conviction was converted to one under Section 304 read with Section 34, IPC, and the sentence was reduced to the period he had already undergone. It is further stated in the writ petition that the petitioner had challenged the order of suspension by preferring CWJC No. 11274 of 1995 Baidyanath Dubey v. State and Ors., which was disposed of by order dated 13.5.1996 (Annexure 5), whereby the order of suspension was quashed, he was directed to be reinstated in service on the same day itself, and the respondent authorities were directed to pass necessary orders within a period of one week. The petitioner in the meanwhile superannuated with effect from 31.7.2001. He preferred CWJC No. 15767 of 2001 (Baidya Nath Dubey v. The State of Bihar and Ors.), which was disposed of by order 6.12.2001 (Anneuxre 2), whereby this Court held that his involvement in the criminal appeal was not in discharge of official duties and, therefore, would not be treated to be a misconduct so as to come in the way of the petitioner's post-retirement benefits. The respondent authorities were directed to pass appropriate orders, inter alia; on two issues, namely, the amount of Rs. 87,000/- which was allegedly embezzled by the petitioner, (out of which the amount of Rs. 26,000/-had already been recovered) could be recovered from him and, secondly, as to the manner in which the period of suspension be treated.
3. In due observance and obedience of the order of this Court, the respondent authorities have passed the order dated 30.3.2002 (Annexure 3), whereby it has been decided that the period of custody, namely, 25.9.1986 to 1.10.1986 shall be treated as break in service and the post-retirement benefits of the petitioner shall accordingly by computed. It has further been decided that the petitioner shall be entitled only to subsistence allowance during the entire period of suspension. The respondent authorities have passed the further order dated 22.2.2001 (Annexure 1), whereby the entire period of suspension, namely, 25.9.1986 to. 2.5.1996 shall not be taken into account for purpose of computation of pension. The petitioner impugns the two orders.
4. While assailing the validity of the impugned orders, learned counsel for the petitioner submits that the respondent authorities are completely unmindful of the two orders of this Court which have become final. In his submission, the High Court by its order dated 13.5.1996 (Annexure 5) quashed the order of suspension and directed that the period shall be treated as on duty because the findings in the criminal case did not amount to misconduct, the findings being beyond the discharge of official duties. He, therefore, submits that the respondent authorities are bound in law to treat the entire period of suspension except the period of custody as on duty. He next submits that the next order of this Court of 6.12.2001 (Anneuxre 2) clearly held, that no misconduct was involved and," therefore,, the respondent authorities were directed to compute the pensionary benefits accordingly.
5. The State of Bihar and its functionaries have placed on record their counter affidavit. Learned counsel for the two sets of respondents have opposed this writ petition.
6. I have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the petitioner is right in his submission that the two orders of this Court have become final and have, therefore, to be read as they stand. In my view, this Court in its order dated 13.5.1996 (Annexure 5) quashed the order of suspension with immediate effect, but did not state that the entire period of suspension was invalid. In so far as the order dated 6.12.2001 (Annexure 2) is concerned, this Court held that the finding of this Court in the judgment of Criminal Appeal (Annexure 6) did not amount to misconduct as it related to a private dispute and had nothing to do with the discharge of official duties. Therefore, this Court directed the respondent authorities to compute the post-retirement benefits after taking into account the following aspects:
(i) The respondent authorities should decide whether or not any amount has to be recovered from the petitioner,
(ii) The manner in which the period of suspension has to be treated.
It is thus manifest that the High Court recorded certain findings in the two writ petitions which have become final and left the remaining aspects indicated hereinabove for the consideration and decision of the authorities. It is elementary to state that the respondent authorities are bound by the findings of this Court and cannot pass the consequential orders inconsistent thereto.
7. In this background it appears to me that the respondent authorities have computed and decided to make certain recoveries from the post-retirement benefits admissible to the petitioner. No exception can be taken to the same. Secondly, the period of custody has been treated to be tantamount to break in service and, therefore, the pensionary benefits has to be accordingly computed. No exception can once again be taken to the same. It has further been decided that the petitioner shall be entitled only to subsistence allowance for the entire period of suspension is consistent with the provisions of Rule 97 of the Bihar Service Code, and cannot be faulted.I am, therefore, not inclined to interfere with the impugned orders dated 30.3.2002 (Annexure 3), and 22.2.2002 (Annexure 1). There is no merit in this writ petition.
8. The writ petition is accordingly dismissed.