The aim of the rules of natural justice is to serve justice or to put it negatively to prevent miscarriage of justice – High court of Patna
TITLE– Madhuri Devi Vs The State of Bihar &ors.
DECIDED ON-11/12/2023
+CWJC No.24484/2018
CORAM-HON’BLE JUSTICE HARISH KUMAR
Facts
As per the facts of the case The original petitioner died during the pendency of the writ petition on 9/05/2019 had invoked the prepogative writ jurisdiction of this court under Article 226 of the constitution of India seeking quashing of office passed by the Respondent no.3 on 10/04/2018 whereby the reply to the second show cause notice on 3/3/2014 which has been rejected and upheld the earlier order of Punishment and also sought quashing of the office order dated 12/03/2014 passed by the respondent no.3 were the pension of the petitioner has been fixed at zero on the ground that the petitioner has failed to submit his reply to the second show cause in the departmental processing as also the charges stand prove against the writ petitioner that he had caught red handed by the vigilance while taking bribe.
As the fact for filing the present writ petition is that the original petitioner was initially appointed as the overseer in the year 1972 and again was posted as Junior Engineer. While he was posted in Junior Engineer,Road Divisional,Munger, a reparing work of the road of sinkandara- Jamui- Kharagpur-Bariyarpur was executed by a contractor namely Aftab Alam pursuant to Agreement.As the final bill was sanctioned by the executive engineer on 8/3/2007 and after proper varification.On 09/03/2007 the entire payment of Rs1,65,368 was made to the contractor.On 20/03/2007 a complaint was made by the contractor before the vigilance un connection with a demand of gratification of Rs 5000/- by the petitioner for preparing the fresh estimate and a trap was constituted were the petitioner was caught red handed on 23/03/2007 for accepting the bribe. By the team of Vigilance Department the petitioner was sent to judicial custody and accordingly the criminal case has been registered.Thus this act was unbecoming of a Public Servants conduct Rule,1976 for which the petitioner submitted his reply to the enquiry officer denying all the allegations and meanwhile petitioner came to be supernnauted on 31/05/2006 and this departmental proceeding has been converted under Rule 43(b) of the Bihar Pension Rules,1950.The Disciplinary authority having considered the departmental letter called upon the writ petitioner submit his second show cause by 5/03/2014 were the petitioner submit it by 4/03/2014 by post.However the Disciplinary authority passed the final order inflicting punishment of reducing the writ petitioners pension to zero vide dated on 12/03/2014.
Law Involved / provisions of law
The petitioner file a writ petition under section 226 of the Constitution of india for quashing the order passed by the engineer-in-chief-cum Additional commissioner-cum-special secratary,Road construction Department i.e Respondent no.3
Issue framed
Whether the order passed by the Engineer in chief is illegal or invalid ?
Where the Department in proposal to hold an enquiry against a Government servant under The rule
whether permanently or a specified period vests only in the state government on the contingencies of fact that any pecuniary loss causes to the government to have been guilty of grave misconduct or to have caused pecuniary loss to the Government is misconduct or negligence during his service including service rendered on reemployment after retirement.
THE COURT ANALYSIS AND DECISION
As per the Hon’ble court after hearing both the parties and the Hon’ble court observed and state that as due to the death of the original petitioner court could not be finally proved.From the plain reading of the it goes without saying that were the department is proposed to hold an enquiry against a Government servant under this rule and proposed to sustain the articles of charge there must be witness by whom the charges are proposed to be proved.It is well settled that the purported evidence collected during the investigation by the IO against the accused inself could not be treated to be evidence of in the disciplinary proceeding in the examination of witnesses.It is also to be noted that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.The enquiry officer acting in the quasi Judicial authority is in the position of an independent adjudicator not be supposed to be a representative of the Department/Disciplinary authority/Government.Now to the impunged order being wholly without jurisdiction having been passed by an authority who is neither the appointing authority of the original petitioner nor the competent under the law as envisaged under section 43(b) of the Bihar Pension Rules.Then whether permanently or a specified period vests only in the state government on the contingencies of fact that any pecuniary loss causes to the government to have been guilty of grave misconduct or to have caused pecuniary loss to the Government is misconduct or negligence during his service including service rendered on reemployment after retirement.As from the charges it transpires that there is no charge in relation to pecuniary loss caused to the government either found proved in departmental or Judicial proceedings or by misconduct or negligence.Aa per this court has no hesitation to accept the submission of the petitioner that any order passed by an authority having no jurisdiction is a nullity which strike at the very authority of the person to pass such order and jurisdiction by the court or by consent as there is no estoppel against the statute.In view of the discussion made and settled position of law this court has no hesitation in setting aside the impunged order as passed by the respondent and directed the respondent authorities to treat original petitioner in service till the date of his retirement and accordingly the pension in accordance with law to the petitioner preferable within a period of eight weeks.Accordingly, the writ petition stands allowed.
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