ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 10-02-2023 In the instant Letters Patent Appeal, the appellant has assailed the order of the learned single Judge dated

18.10.2019 passed in C.W.J.C. No. 17311 of 2019.

2. The appellant while working as a Panchayat Secretary under Bihta Block, he has attained age of superannuation and retired from service on 29.02.2016. While he was in service, he is alleged to have withdrawn a sum of Rs. 31,66,800/- from the Panchayat funds. Funds were earmarked for completion of various schemes under five Panchayats. He had not given proper accounts that he had utilized the aforementioned amount towards implementation of a various Panchayats scheme. On this allegation, he was subjected to disciplinary proceedings and it was concluded in imposition of penalty of withholding of 25% of his entitlement of pension and further ordered for recovery of the misappropriated fund through a certificate proceedings on 26.02.2019, passed by the District Magistrate, Patna, invoking Rule 43(b) of the Bihar Pension Rules, 1950.

3. Feeling aggrieved and dissatisfied with the penalty order, the appellant invoked remedy before this Court in filing C.W.J.C. No. 17311 of 2019 and it was decided against him on 18.10.2019. Hence the present L.P.A.

4. Learned counsel for the appellant submitted that there is no assessment relating to alleged loss caused to the State exchequer with reference to the article of charge till imposition of penalty. It is also submitted that explanation to the show cause notice along with the Inquiry Officer’s report has not been considered by the District Magistrate. These issues have not been appreciated by the learned single Judge. At this stage, learned counsel for the appellant submitted that the District Magistrate has no power to impose the penalty on a retired employee in the light of Rule 43(b) of the Bihar Pension Rules. Therefore, the impugned action of the District Magistrate and order of the learned single Judge are liable to be set aside.

5. Per contra, learned counsel for the respondent-

State resisted the aforesaid contentions and submitted that there is no infirmity in the disciplinary proceedings. The same has been taken note of by the learned single Judge while rejecting the appellant’s writ petition. It is a case of misappropriation of Panchayat funds. Therefore, the appellant cannot get away from the alleged charge read with the penalty. It is also submitted that the District Magistrate is appointing authority to the appellant, therefore, he would step into shoe of the disciplinary authority so as to impose the penalty under Rule 43(b) of the Bihar Pension Rules. Hence, no interference is warranted in the LPA.

6. Heard learned counsel for the respective parties. 7. The appellant was subjected to disciplinary proceedings on the allegation that he was alleged to have misappropriated a sum of Rs. 31,66,800/-. He had withdrawn the aforementioned amount from the Panchayat funds, for the purpose of execution of various Panchayats scheme, since he has not given account, therefore, he was subjected to disciplinary proceedings and it was concluded in imposition of penalty of withholding of 25% of the pension and recovery of misappropriated amount.

8. From perusal of the records, it is evident that the District Magistrate who has passed the penalty order has not taken note of explanation of the appellant against show cause notice along with the Inquiry Officer’s report, in other words, it is a non speaking order. In order to analyze, whether it is a speaking order or not, it is necessary to reproduce the penalty order which reads as under:-

“vkns'k Jh mn; 'kekZ] lsokfuo`Rr] iapk;r lfpo] iz[k.M dk;kZy; fcgVk ds fo:) foHkkxh;

dk;ZokghA lafpdk la[;k& XXII-05/2016 iz[k.M fodkl inkf/kdkjh] fcgVk ds i=kad&1127] fnukad 08-05-2018 ,oa vuqe.My inkf/kdkjh] nkukiqj ds i=kad&6] fnukad 18-05-2018 ds ek/;e ls Jh mn; 'kekZ lsokfuo`Rr] iapk;r lfpo] iz[k.M dk;kZy; fcgVk ds fo:) izi= ^d* es