Sanjeev Prakash Sharma, J. – The petitioner is a retired Executive Engineer, who superannuated on 31st August 2009. He challenges the order dated 19.10.2012, whereby 5% of his pension has been withheld for five years under Rule 43(b) of the Bihar Pension Rules on the basis of a departmental proceedings initiated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred as the “CCA Rules, 1930”).

2. The memorandum was issued to the petitioner on 10.08.2005 under extant CCA Rules, 1930 for conducting inquiry.

3. Five charges were levelled against him stating that the Chief Engineer, Tube-Well Wing, Patna reported in his letter no. 538 dated 16.06.2005 regarding irregularities while construction of Tube well at Nasibchak under Barbigha block of Munger district. Five charges were formulated which are as follows: –

Charge no.1 - In Loop 'A' 8 nos. and in Loop 'B' 7 nos. total being 15 nos. of outlets were found. Its quality was not as per specification. In Loop 'A' 4 nos. Alpha-Alpha Valves could not be opened. In Loop 'A', major leakage on two points and minor leakage on two points were found;

Charge no.2 - In Loop 'B; lying of sand below the P.V.C. Pipe on two points were examined. In course of enquiry, the sand was not found;

Charge no.3-for lying of P.V.C. Pipes, the depth on two points were checked. It was found that the depth of 2' 6" and 0.8" in place of 3 feet. Payment of ventilator was done but none of ventilator was found;

Charge no.4- There is no proper ventilation in D.G. Set room for Generator and leakage were found from Sluice Valve and

Charge no.5- Plaster work of Pump House was not found as per specification. Crack was developed in the operator room. The quality of flooring of the operator room was found to be bad.

4. The Enquiry Officer submitted his report exonerating the petitioner from charge nos.1 to 4, however, charge no.5 was found proved. The Secretary did not accept the enquiry report and directed another Officer to conduct de novo proceedings. The new Enquiry Officer submitted his report on 25.02.2009 exonerating the petitioner from all the charges. The said enquiry report was also not accepted and the Additional Departmental Enquiry Commissioner, General Administration Department (G.A.D.) conducted separate proceedings and submitted his report on 30.06.2010 and found charge no.3 partially established, while exonerating the petitioner from all the above charges, the petitioner had attained superannuation in between, whereafter the second show cause notice was served upon the petitioner with regard to charge no.3.

5. It is stated that the then Joint Secretary had recommended to exonerate the petitioner from all the charges on 26.04.2011, thereafter the Joint Secretary passed an order for a supplementary show cause on 17.11.2011 with regard to charge nos. 2 and 5 giving points of disagreement with the enquiry report on both the charges.

6. The petitioner submitted his detailed reply pointing out that he deserves to be exonerated from all the charges.

7. The respondents issued order dated 22.05.2012 converting the proceedings under Rule 43(b) of the Bihar Pension Rules and issued a fresh show cause notice to the petitioner and thereupon passed an order holding him guilty of not checking measurement works within time.

8. It has been argued that the proceedings were initiated under CCA Rules, 1930, which stood repealed vide notification dated 12th July, 2005 and Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 came into force (hereinafter to be referred as the “CCA Rules, 2005”, whereafter the charge-sheet could not have been issued under the CCA Rules, 1930.

9. Further the petitioner was exonerated from the charges by an Enquiry Officer, the fresh inquiry could not have been directed against the petitioner and the Disciplinary Authority could only give a notice of disagreement to the inquiry report. However, the enquiries were conducted one af