IMPORTANT POINT
Disciplinary action under Rule 43(b) of the Bihar Pension Rules requires proof of grave misconduct or financial loss to the government; failure to provide substantiated reasoning in orders renders them invalid.

JUDGMENT :

Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Accountant General, Bihar in both the writ petitions.

Re. CWJC No. 5541 of 2022

2. Learned counsel for the petitioner submits that the present writ petition has been filed for setting aside the Resolution contained in Memo No. 303 dated 02.05.2017 issued by the Public Health Engineering Department, Government of Bihar (hereinafter referred to as “PHED”), whereby and whereunder the petitioner, who was then posted as Executive Engineer in PHED, has been awarded the punishment of withholding 5% of his pension for a period of five years under Rule 43(b) of the Bihar Pension Rules , 1950.

3. Learned counsel for the petitioner further submits that the dispute giving rise to the present writ petition relates to the period when the petitioner was posted as Executive Engineer, PHED, Sasaram from June, 2010 to December, 2011. It is submitted that the petitioner was served with an order contained in Memo No. 489 dated 25.10.2013 along with a memorandum of charge initiating a departmental proceeding under the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as “the CCA Rules, 2005”). Learned counsel submits that a total of nine charges were levelled against the petitioner. The petitioner duly participated in the departmental proceeding, which was registered as Departmental Proceeding No. 57 of 2013. It is further submitted that upon conclusion of the enquiry, the petitioner was exonerated from all the charges, as none of the nine charges was found to have been proved. Thereafter, a second show cause notice was issued. Though the charge memo was issued during the petitioner’s service period on 25.10.2013, admittedly, he retired from service on 31.01.2014. The enquiry proceedings were concluded after his retirement. It is further submitted that the second show cause notice was issued on 16.07.2017, wherein the disciplinary authority disagreed with the findings of the enquiry report. Since the petitioner had already retired, the departmental proceeding was converted into one under Rule 43(b) of the Bihar Pension Rules , 1950, which fact has been duly acknowledged in the final order itself.

4. Learned counsel for the petitioner submits that in the final order, there is only a one-line observation to the effect that the reply submitted by the petitioner to the second show cause notice has been considered and all the allegations have been found proved, without assigning any cogent reasons. It is further submitted that Rule 43(b) of the Bihar Pension Rules , 1950 clearly stipulates that the appointing authority has the right to withhold or withdraw pension or any part thereof, whether permanently or for a specified period, or to order recovery from pension of the whole or part of any pecuniary loss caused to the Government, only if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during service.

5. Learned counsel further submits that in the present case, neither of the aforesaid conditions has been satisfied. It is submitted that at the fag end of his career, the Government initiated three separate departmental proceedings against the petitioner by issuing three different charge memos