ORAL JUDGMENT

Date: 29-01-2024 Heard Mr. D.N. Pathak, the learned counsel for the petitioner and Mr. Raghwanand, the learned GA-11 appearing on behalf of the State.

2. The present writ petition has been filed for quashing the Notification contained in Memo No. 4552 (S) dated 26.04.2012 issued by the respondent no. 3, whereby reduction of 5% of pension for five years has been awarded in the departmental proceeding initiated under Rule 43 (b) of Bihar Pension Rules vide departmental resolution contained in Memo No. 6727 (S) dated

23.06.2009.

3. Learned counsel for the petitioner submits that the petitioner retired from service on 30.11.2008 from the post of Superintending Engineer, NH Circle, Road Construction Department, Patna. After seven months from retirement, the respondent no. 3 issued a resolution contained in Memo No. 6727 (S) dated 23.06.2009 and departmental proceeding was initiated under Rule 43 (b) of Bihar Pension Rules, whereby Chief Engineer, South Bihar Road Construction Department was appointed as Enquiry Officer in the said departmental proceeding.

4. From bare perusal of the Memo of charge dated 17.06.2009 that all charges are baseless and non-application of mind, since charge no. 1 speaks for non-institution of FIR against unknown person, who tampered the rate inserted in tender register. The charge no. 2 relates with recommendation of the contractor, who quoted minimum rate on the basis of the comparative state of the tender. The charge no. 3 for misrepresentation of fact regarding declaration of non-pending of criminal case or departmental proceeding at the time of filing of pension paper on 04.02.2009, which was absolutely contrary to the fact as the departmental proceeding was initiated on 26.09.2009, whereas, the petitioner retired from service w.e.f., from 30.11.2008 and declaration was made for the pension at the time of filing of pension papers on 04.02.2009, much prior to the initiation of the departmental proceeding. The departmental proceeding was initiated and the petitioner filed show-cause against Memo of charge on 29.07.2009 before the enquiry officer. The enquiry officer has submitted his report to his department on 07.09.2009, whereby he exonerated the petitioner from all charges on the basis of evidence adduced by the presenting officer against the charge and show-cause filed by the petitioner. The enquiry officer did not find the petitioner guilty with respect to the charges levelled against the petitioner in the departmental proceeding and as such he has exonerated the petitioner from all charges on the basis of facts and evidence adduced before him in the proceeding.

5. The enquiry report dated 07.09.2009 was examined by the Secretary, Road Construction Department, Patna and he did not find guilt against the charges and hence he proposed to exonerate the petitioner from all charges on 14.12.2009 and the same was accepted by the departmental Minister on 16.12.2009. The said proposal of the Secretary and departmental Minister was turned down by the Chief Secretary after some queries, which were answered by the departmental Secretary on 03.03.2010 and sent it for approval to the Chief Secretary, which was accepted and approved by the Chief Secretary on 04.03.2010 and again on 20.03.2010 for exoneration to the petitioner. The Secretary of Hon’ble Chief Minister made query without any substantive fact and beyond the Memo of charge and concerned file was returned down to the department for necessary action.

6. The Secretary of the department again proposed on 10.04.2010 for exoneration of the petitioner in the departmental proceeding and sent it to the Chief Secretary for approval, but the Chief Secretary deferred with the proposal of the departmental Secretary and asked the Secretary to issue a second show-cause notice to the petitioner for those charges which were not in the departmental proceeding, as is evident from the noting of the Chief Secretary dated 13.04.2010. The Chief Secretary had alre