Validity of show cause notice for withholding pension based on alleged past misconduct and the entitlement to substantive promotion in the absence of departmental proceedings or formal criminal prosecution.

NAVIN SINHA, J.

Heard learned counsel for the petitioner and the State.

2. The petitioner is aggrieved by the order dated 14.12.2010 imposing punishment for stoppage of 2% of his pension from the date of the order in exercise of powers under Rule-139(b) of the Bihar Pension Rules (hereinafter referred to as the Pension Rules).

3. The petitioner came to this Court earlier in C.W.J.C. No.9109/92 seeking promotion to the post of Joint Director, Industries. The writ application was disposed on 19.8.1993 to consider him for promotion on ad hoc basis subject to the result of the vigilance enquiry pending before the Vigilance. He superannuated on 1.12.1993 from the post of Deputy Director, Industries. C.W.J.C. No.4481/94 was again filed aggrieved by denial of promotion.

4. Disposing the application on 6.4.2010 it was noticed that the petitioner asserted that there were no departmental proceedings pending against him. The enquiry pending before the Vigilance never culminated in the institution of any prosecution under the criminal law or framing of charge in a departmental proceeding.

5. A show cause notice was issued to the petitioner on 5.10.1996 under Rule-139(b) of the Pension Rules for withholding 2% of the pension.

6. Directions were given by the Court to examine if at any time departmental proceedings had been held, the date of the charge, the result of the proceedings. If there was a vigilance enquiry, if it culminated in a formal criminal prosecution. In absence of the same, he was held entitled for substantive promotion.

7. The impugned order states that a show cause notice was issued to the petitioner on 5.10.1996 and despite repeated reminders he never filed his reply to the same except taking the objection that it was time barred.

8. Learned counsel for the petitioner submits that the charge relates to an occurrence of 27.3.1991. The show cause notice dated 5.10.1996 under Rule-139(b) of the Pension Rules was therefore well beyond the period of four years from the date of the charge. The proceedings were therefore barred by law. Reliance is placed on AIR 1995 S.C. 1853 (State of Bihar v. Mohd. Idris Ansari). The show cause notice dated 5.10.1996 has not been brought on record by the parties. The impugned order dated 14.12.2010 recites that it was issued not for any unsatisfactory service but on account of allegations for misconduct.

9. In Md. Idris Ansari (supra), it has been held at paragraph-10 as follows:-

“10….. On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27-9-1993 invoking powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139 (a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which show cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139 (a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent…..”

10. The order dated 14.12.2010 is unsustainable and is accordingly set aside. Consequently, the subsequent order dated 11.4.2011 denying him promotion on that ground automatically becomes unsustainable and is set aside. The respondents are required to comply the order by considering his case for promotion in accordance with law within a maximum period of four months from the date of receipt/presentation of a copy of this order in all its consequential aspects with regard to arrears of salary, arrears of pension and revision of pension/pension payment order.

11. The writ application is allowed.