PRAMATH PATNAIK, J. - (1.) In the instant writ application, the petitioner has inter alia prayed for quashing of the order dated 29.04.2009 and amended order dated 05.01.2012 passed by the Deputy Secretary, Water Resources Department, Government of Jharkhand, pertaining to imposition of following punishment: (i) Censure for the year 2004 -05; (ii) Recovery of 20% of the amount of Rs.1,22,619.60 paise, and (iii) Withholding to increment of salary with cumulative effect, (as contained in Annexure -3 and 10 respectively to the writ application). The petitioner has also prayed for quashing of the portion of office order dated 06.09.2011 issued by the Executive Engineer, Minor Irrigation Division, Hussainabad pertaining to withholding 20% of 4.38 lakhs i.e. Rs.87,600/ - and unadjusted advance amount of Rs.2,10,000/ - in making payment of the leave encashment amount payable to the petitioner and also for direction to the respondents to make full payment of leave encashment amount payable to the petitioner by releasing the withheld amount of Rs.87,600/ - and Rs.2,10,000/ -.
(2.) The facts, as disclosed in the writ application, in nut shell, is that during his incumbency as Assistant Engineer in the Minor Irrigation Department, Palamu, an explanation was sought for from the petitioner basing on the report of the Flying Squad. In pursuance to the report of the Flying Squad, the petitioner submitted his reply denying the allegations levelled against him. So far as charge no.1 and 2 are concerned, it is clear from the report of the Flying Squad that no commission or omission has been done by the petitioner. Basing on the report of the Flying Squad, show cause was asked for and the authorities while considering the show cause passed the impugned order of punishment vide order dated 29.04.2009 and order dated 05.01.2012. The impugned order of punishment dated 29.04.2009 has been modified to the extent that 20% of Rs.1,22,619.60 paise was directed to be recovered from the petitioner. Being aggrieved by the impugned order of punishment, the petitioner preferred representation before the respondent nos.1 and 2 to exonerate him from the charges. Subsequently, the petitioner preferred appeal before Governor of Jharkhand and thereafter, sent several reminders in the department but of no avail. Thereafter, the petitioner being aggrieved by the inaction of the authority filed writ petition before this Court bearing W.P. (S) No.5910 of 2010 and the said writ petition was disposed of by permitting the petitioner to pursue before the appellate authority. The petitioner preferred appeal before the respondent no.2 on 31.01.2011. Again, the petitioner filed writ petition before this Hon'ble Court bearing W.P.(S) No. 4404 of 2011 for payment of legally admissible gratuity and leave encashment. Being aggrieved by the impugned order of punishment dated 29.04.2009 and 05.01.2012, the petitioner left with no alternative, approached this Court under Article 226 of the Constitution of India for redressal of his grievance.
(3.) Mr. Sohail Anwar, learned senior counsel appearing for the petitioner urged before this Court that the impugned order of punishment is perverse, as the show cause submitted by the petitioner has not been duly considered by the authority. Learned senior counsel submits that the impugned order of punishment vide Annexure -3 to the writ petition suffers from non - application of mind and is without jurisdiction, since the petitioner retired from Government service on 31.01.2009 after attaining the age of superannuation, the impugned order of punishment passed on 29.04.2009 and the modified order of punishment passed on 05.01.2012 without taking recourse to rule 43 B of the Bihar Pension Rules, the authorities have imposed punishment which is not legally permissible. Learned senior counsel has further submitted that in the instant case, no regular departmental enquiry has been conducted, therefore, the impugned order of major punishment is not legally sustainable. Learned senior counsel has drawn my attention to the order dated 13.08.2013, wherein the respondents have been directed to answer the queries as to whether any departmental proceeding has been initiated for the alleged misconduct or after his retirement any show cause notice has been issued under the Jharkhand Pension Rules for recovery of the alleged amount from his post retiral dues, a supplementary counter affidavit has been filed in pursuance to the aforesaid order which is absolutely silent on the query of the Court.;