ORAL JUDGMENT

Date : 12-02-2024 Heard learned counsel for the petitioner and learned counsel for the State.

2. Learned counsel for the petitioner submits that I.A. No.2102 of 2018 has been filed to amend the prayer by way of addition to quash the notification with regard to the suspension of the petitioner. Counsel submits that with the span of time I.A. No.2102 of 2018 has become infructuous. As such, he is not ready to press the said I.A. Accordingly, I.A. No.2102 of 2018 is dismissed as not pressed.

3. Learned counsel further submits that during pendency of the present application, order No.63 dated 16.05.2019 contained in Memo No.1019 dated 16.05.2019 has been passed by which the pending departmental proceeding initiated against the petitioner under Rule 17 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, (hereinafter referred to as ‘the CCA Rules, 2005’) has been decided to be converted under Rule 43(b) of the Bihar Pension Rules, 1950. Counsel submits that the said prayer has been added in the main writ petitioner by virtue of order dated 09.01.2024 as I.A. No.2 of 2019 has been allowed and petitioner was directed to amend the prayer in the writ petition. Counsel further submits that in the present writ petition the memo of charge and enquiry report have been challenged. Final order has not been passed in this case till date. But with the span of time, vide order dated 16.05.2019 it was ordered to convert the departmental proceeding under Rule 43(b) of the Bihar Pension Rule, 1950. Counsel relied on a judgment of this Court decided on 30.01.2024 passed in CWJC No.4710 of 2018 (Dhirendra Kumar Vs. The State of Bihar and Others) in which the order converting the proceeding has been set aside on the ground that the decision has to be taken place at the level of the government but it has not been taken at the level of the government and it has been taken at the level of under Secretary of the Government.

4. Learned counsel further submits that in the said decision two aspects have been decided. The first is that initiation of charge memo has not been issued in compliance of Rule 17 of the CCA Rules, 2005. He submits that whatever the ingredients, which have to be followed, by which show- cause has been sought for and only upon satisfaction with the written statement filed by the delinquent, the appointing authority conclude the departmental proceeding. Those are lacking in the charge and, therefore, consequential decisions are also bad in law and not sustainable. In this regard, counsel relied on the judgment of Shankar Dayal Vs. The State of Bihar and Ors. reported in 2018 (2) PLJR 308, and judgment dated 27.06.2018 passed in CWJC No. 470 of 2018 in the case of Dharmendra Kumar Vs. the State of Bihar and Ors.

5. Learned counsel for the State, on the other hand, submits that every decision has been taken by the disciplinary authorities are made completely in accordance with law. In support of his argument, he has relied on a Full Bench decision of this Hon’ble Court in the case of Shambhu Saran Vs. The State of Bihar and Others reported in 2000 (1) PLJR 665 (FB). Counsel submits that in the Full Bench decision it has been held that in a case where the disciplinary proceeding has already been started and the delinquent attains the age of superannuation the enquiry may be continued under Rule 43(b) of the Bihar Pension Rules, 1950, for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of government is necessary. Therefore, counsel submits that the order No.63 dated 16.05.2019, by which decision was taken converting the departmental proceeding under Rule 43(b) is not required at all.

6. Upon hearing the argument of the parties, considering the documents on record as well as the judgments, this Court is of the view that it is necessary to decide two different aspects of the matter.

(i) First asp