Patna High Court - Orders
Nityanand Kumar Singh vs The State Of Bihar & Ors on 30 November, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.2527 of 2009
NITYANAND KUMAR SINGH
Versus
THE STATE OF BIHAR & ORS
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5 30.11.2010Whether limitation prescribed in second proviso to Rule 43(b) shall govern any action under Sub-Rule (a) also, is the precise question which is being raised by learned senior counsel for the petitioner in the case.
The relevant facts required to be noticed for the present are that the petitioner superannuated from the post of Budget and Accounts Officer in the Animal Husbandry Directorate, Government of Bihar on 31.12.1997. After superannuation his pension was finally approved on 12.5.1998. Subsequently, he was promoted as under
Secretary, vide order dated 17.8.1998, with effect from 1.12.1995. During this period he was made an accused in one of the cases related to the infamous animal husbandry scam. By judgment dated 7.8.2006 he along with others were convicted by Special Judge-V (CBI), Ranchi.
After his conviction petitioner received a notice to show cause through 2 letter dated 18.1.2007 (Annexure-1) as to why action may not be taken against him under Rule 43(b) of the Bihar Pension Rules and his pension may not be withheld in view of his conviction in the criminal case. Petitioner filed a reply to the same through his letter dated 19.2.2007 (Annexure-2), in which, he, inter alia raised the question of limitation for any such action against him under Rule 43(b) of the Bihar Pension Rules, referring to the Supreme Court judgment in Idrish Ansari's case (1995 (2) PLJR (SC) 51). Thereafter, the petitioner received another show cause notice from the respondents through letter dated 7.3.2008 (Annexure-3), this time in reference to Rule 43(a) of the Pension Rules. Petitioner filed his reply to this also through his letter dated 31.3.2008 (Annexure-4). Finally the impugned order contained in notification dated 19.12.2008 (Annexure-5) was issued by which, in exercise of the powers under Rule 43(a) of the Bihar Pension Rules, and in view of his conviction in the criminal case, his pension was withheld permanently.
Mr.Shivaji Pandey, learned counsel 3 appearing for the petitioner submits, first of all, that Rule 43(a) is prospective in nature and it is applicable only in respect of future good conduct of a pensioner and does not operate in the case of past conduct of the period prior to superannuation which may have been taken care of by the Department earlier. He further submits that, in terms of Sub-Rule (a), pension of a pensioner could be withheld permanently or otherwise, only if he was convicted of serious crime or guilty of grave misconduct. He submits that Sub-Rule
(b) also provided for withholding of pension in case a pensioner is found guilty of grave misconduct in a departmental or judicial proceeding. He points out that the judicial proceeding as defined in the explanation of the Rule includes both criminal proceeding as well as civil proceeding. Hence, he submits that both judicial proceeding and departmental proceeding are governed by the proviso (ii) of Rule 43 which prescribes a time limit for initiation of departmental proceeding. Thus, as per his submissions, the said Clause (ii) of the proviso governs a criminal proceeding as well as civil 4 proceeding and governs Sub-Rule (a) also. However, he fairly submitted that, in this respect, inspite of his best efforts, he could not find any judgment of this Court or of the Apex Court where the scope and limitation of Sub-Rule (a) of Rule 43 has been discussed or clarified. He submits that this will be the first case in which this question directly arises for consideration of this Court and therefore there should be an authoritative pronouncement on the issue by this Court.
Though it appeared to this Court that the Proviso (ii) of Rule 43 operates only in respect of initiation of a departmental proceeding, but, in view of submissions of Mr.Pandey, this Court considers it appropriate to refer the matter to a Division Bench.
Let the matter be placed before
Hon'ble the Chief Justice for appropriate
orders for placing the matter before a
Division Bench.
Arvind/ ( J. N. Singh, J.)