Patna High Court
Ashutosh SharanversusThe State of Bihar through the Secretary,
- Decided
- Disposal
- DISPOSED
- Bench
- AJIT KUMAR
Holding
The impugned order withholding the petitioner’s pension is set aside and the disciplinary authority is directed to consider the second show‑cause reply, afford a proper hearing, and restore the pension.
Summary
Ashutosh Sharan, a retired government employee, had his entire pension withheld under Bihar Pension Rule 43(B) following a disciplinary proceeding. The inquiry officer’s report exonerated him, but the disciplinary authority issued a show‑cause notice disagreeing with the report and later passed an order on 30‑09‑2021 forfeiting his pension without considering his second show‑cause reply submitted via WhatsApp. The petitioner filed writ petitions seeking quashing of the order and mandamus directing payment of full pension and other dues. The High Court held that the disciplinary authority erred by not giving due consideration to the petitioner’s reply and by acting perversely, violating principles of natural justice. The court set aside the impugned order, directed the authority to consider the reply, afford a proper hearing, and ordered that the pension be paid within two weeks, with liberty to seek further explanations if needed.
Issues considered
- Whether the disciplinary authority was required to consider the petitioner’s second show‑cause reply and the exonerating inquiry report before imposing pension forfeiture.
- Whether the order dated 30‑09‑2021 was perverse and violative of principles of natural justice under Article 311(2) and the Bihar Pension Rules.
- Whether the petitioner is entitled to restoration of full pension and other retiral benefits.
Legislation cited
- Bihar Pension Rules, 1950 — s. 43(B)
- Constitution of India — s. Article 311(2)
Subjects
- pension forfeiture
- disciplinary inquiry
- show‑cause notice
- natural justice
- Article 311
- Bihar Pension Rules
- quashing order
- mandamus
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13645 of 2021
======================================================
Ashutosh Sharan S/o Late Ramnarayan Sharan Resident of Mohalla -
Bharatmilap Chowk, District- Chapra at Saran.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Department of SC/ST Welfare,
Government of Bihar, New Secretariat, Patna.
2. The Director, Department of SC/ST Welfare, Govt. of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Divisional Commissioner, Tirhut Division, Muzaffarpur.
5. The District Magistrate, West Champaran, at Bettiah.
6. The Deputy Director, Welfare SC/ST, Tirhut Division, Muzaffarpur.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 19131 of 2021
======================================================
Ashutosh Sharan S/o Late Ramnarrayan Sharan, R/o Mohalla-Bharatmilap
Chowk P.S. Chapra Town District-Chapra at Saran.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Department of SC/ST Welfare,
Govt. of Bihar, New Secretariat, Patna.
2. The Principal Secretary, SC/ST Welfare Department, Govt. of Bihar, Patna.
3. The Joint secretary, SC/ST Welfare Department, Govt. of Bihar, Patna.
4. The Director, Department of SC/ST Welfare, Govt. of Bihar, Patna.
5. The Divisional Commissioner, Tirhut Division, Muzaffarpur,
6. The District Magistrate, West Champaran, at Bettiah,
7. The Deputy Director, Welfare SC/ST, Tirhut Division, Muzaffarpur.
8. The District Welfare Officer, Muzaffarpur,
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 13645 of 2021)
For the Petitioner/s : Mr. Dudh Nath Singh, Adv.
For the State : Mr. Asit Kr. Jha, AC to GP2
For the AG : Mr. Bindhyachal Rai, Adv.
(In Civil Writ Jurisdiction Case No. 19131 of 2021)
For the Petitioner/s : Mr. Dudh Nath Singh, Adv.
For the State : Ms. Kumari Anita, GP3
Mr. Rajesh Kumar, AC to GP3
Patna High Court CWJC No.13645 of 2021(21) dt.17-04-2026
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======================================================
CORAM: HONOURABLE MR. JUSTICE AJIT KUMAR
ORAL ORDER
21 17-04-2026 The writ applications have been filed for the
following relief:-
(CWJC No. 19131 of 2021)
i. For issuance of direction/directions or
order/ orders or writ/ writs particularly in the nature
of certiorari for quashing the order dated
30.09.2021 contained in Memo No.-2411 issued
under the signature of Additional Secretary, Govt. of
Bihar, Patna whereby and whereunder founded the
charge proved against the petitioner and impose
punishment of withholding the whole pension of the
petitioner U/s 43 (B) of the Bihar Pension Rule and
disposed of the proceeding initiated against him vide
Order No. 108 dated 13.01.2021 without
consideration of his explanation in response to
second show cause as well as providing adequate
opportunity of hearing to the petitioner.
ii. For issuance of direction or order or
writ particularly in the nature of mandamus for
commanding and directing the respondent authority
to make full pension to the petitioner after
quashment impugned order under challenge.”
(CWJC No. 13645 of 2021)
“i. For issuance of direction/directions
or order/ orders or writ/writs particularly in the
nature of mandamus for commanding and directing
the respondent authority to make payment of pension
and other retiral dues such as GPF, Gratuity, Leave
Patna High Court CWJC No.13645 of 2021(21) dt.17-04-2026
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Encashment to the petitioner with statutory interest
as well as penal interest for the period of
unauthorized delay in payment from the date of
retirement till the date of payment @ 12% compound
interest.
ii. For any other incidental and
consequential relief to which the petitioner found fit
under the facts and circumstances of this case.”
2. Counsel for the petitioner, by referring to
Annexure-8 as contained in letter no. 44 dated 28.02.2020,
which is an inquiry report, submitted by the inquiry officer
before the disciplinary authority, submits that the inquiry officer
after due deliberation and taking into account the documents
appended with the allegations forming part of the memo of
charge, have not found the allegations to be true and,
accordingly, report was submitted before the disciplinary
authority for taking final decision in the matter.
3. It is next submitted that pursuant to the report
having been submitted before the disciplinary authority, the
disciplinary authority, after differing with the inquiry report and
having recorded its difference of opinion, had issued show-
cause to the petitioner vide Annexure-9, which is contained in
Memo No. 2336 dated 23.09.2021.
4. It is next submitted that the second show-cause
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reply was submitted by the petitioner through the whatsapp
mode within the time stipulated and it is the case of the
petitioner that the second show-cause reply, which was placed
for consideration by the disciplinary authority, was not
considered as would be evident from the impugned order and,
therefore, it has been submitted by the petitioner that there has
been perversity in the order impugned by which 100% pension
has been forfeited.
5. Counsel for the petitioner next submits that even
one week time was there for submission of second show-cause
reply but, the authorities in haste passed the order on the date of
submission of second show-cause reply through whatsapp and
for ulterior reasons, the same was not considered.
6. Counsel representing State submits that the reply
was not submitted and after the order was passed, the same was
placed for consideration through whatsapp and, therefore, the
consideration to the second show-cause reply could not form
part of the impugned order.
7. This Court finds that there has been perversity in
adjudication of the second show-cause reply filed by the
petitioner and much less when there has been exoneration from
all the charges by the inquiry officer and in a case where there
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has been a detailed submission to the difference of opinion
recorded by the disciplinary authority, it was incumbent upon
him to have addressed such explanation which was filed by the
delinquent as against the difference of opinion recorded by the
disciplinary authority over the inquiry report which exonerates
the petitioner.
8. In this context, the Hon’ble Apex Court in the
case of Punjab National Bank and Ors. Vs. Shri Kunj Behari
Mishra reported in 1998(7) SCC 84, has held as follows:-
“15. At this stage, it will be appropriate to refer to
the case of State of Assam v. Bimal Kumar Pandit [AIR
1963 SC 1612] decided by a Constitution Bench of this
Court. A question arose regarding the contents of the
second show-cause notice when the Government accepts,
rejects or partly accepts or partly rejects the findings of
the enquiry officer. Even though that case relates to
Article 311(2) before its deletion by the 42nd Amendment,
the principle laid down therein, at p. 10 of the Report,
when read along with the decision of this Court in
Karunakar case will clearly apply here. The Court
observed at SCR pp. 10-11 as follows: "We ought,
however, to add that if the dismissing authority differs
from the findings recorded in the enquiry report, it is
necessary that its provisional conclusions in that behalf
should be specified in the second notice. It may be that the
report makes findings in favour of the delinquent officer,
but the dismissing authority disagrees with the said
findings and proceeds to issue the notice under Article
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311(2). In such a case, it would obviously be necessary
that the dismissing authority should expressly state that it
differs from the findings recorded in the enquiry report
and then indicate the nature of the action proposed to be
taken against the delinquent officer. Without such an
express statement in the notice, it would be impossible to
issue the notice at all. There may also be cases in which
the enquiry report may make findings in favour of the
delinquent officer on some issues and against him on
some other issues. That is precisely what has happened in
the present case. If the dismissing authority accepts all the
said findings in their entirety, it is another matter: but if
the dismissing authority accepts the findings recorded
against the delinquent officer and differs from some or all
of those recorded in his favour and proceeds to specify the
nature of the action proposed to be taken on its own
conclusions, it would be necessary that the said
conclusions should be briefly indicated in the notice. In
this category of cases, the action proposed to be taken
would be based not only on the findings recorded against
the delinquent officer in the enquiry report, but also on
the view of the dismissing authority that the other charges
not held proved by the enquiring officer are, according to
the dismissing authority, proved. In order to give the
delinquent officer a reasonable opportunity to show cause
under Article 311(2), it is essential that the conclusions
provisionally reached by the dismissing authority must, in
such cases, be specified in the notice. But where the
dismissing authority purports to proceed to issue the
notice against the delinquent officer after accepting the
enquiry report in its entirety, it cannot be said that it is
essential that the dismissing authority must say that it has
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so accepted the report. As we have already indicated, it is
desirable that even in such cases a statement to that effect
should be made. But we do not think that the words used
in Article 311(2) justify the view that the failure to make
such a statement amounts to contravention of Article
311(2). In dealing with this point, we must bear in mind
the fact that a copy of the enquiry report had been
enclosed with the notice, and so, reading the notice in
common sense manner, the respondent would not have
found any difficulty in realising that the action proposed
to be taken against him proceeded on the basis that the
appellants had accepted the conclusions of the enquiring
officer in their entirety.”
9. Considering the principles laid down in the case
of Punjab National Bank (supra), this Court finds it
appropriate to set aside the impugned order and directs the
disciplinary authority to pass final order after considering the
second show-cause reply which is appended with the writ
application as Annexure-11 dated 30.09.2021 expeditiously and
if required the petitioner may be given proper hearing in the said
case and the petitioner would also be at liberty to supplement
his explanation with supportive materials, if any.
10. The disciplinary authority before taking final
decision would be at liberty to seek further explanation, if so
required, and the petitioner is also at liberty to supplement his
explanation with further supportive materials, which would be
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essential for taking a final decision in the pending disciplinary
inquiry as and when directed or if in his opinion found to be
necessary to be placed for consideration by the disciplinary
authority.
11. It is made clear that the pension and pensionary
benefit for which the petitioner is entitled shall be settled within
a period of two weeks in accordance with the provisions of
Bihar Pension Rules, 1950 from the date of receipt/production
of a copy of this order and further continuance and its
entitlement shall be guided by nature of order passed in the
pending departmental enquiry.
12. With the aforementioned observation and
direction, both the writ petitions are disposed of.
13. Interlocutory application(s), if any, also stands
disposed of.
(Ajit Kumar, J)
rishi/-
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