Deena Nath Prasad v. State of Bihar — 1986 DIGILAW 61 (PAT)

ORDER :no. 6 dated 18.2.86. S. Ali Ahmed & S. B. Sonyal, JJ.- The most question in this writ application is whether disciplinary action can be initiated against a Government servant after he superannuates; if so, whether there can be deduction from his pension and gratuity in the event of his service not found thoroughly satisfactory to compensate the loss caused to the government. 2. As the matter is of some importance and the question pertains to pension and gratuity, we think the writ petition can be disposed of at the admission stage itself after hearing both the parties in affray. 3. The petitioner retired as Superintending Engineer, Irrigation with effect from 1.11.81. He was allowed 75 per cent pension on 13.3.82 and the rate of pension was increased to 90 percent from 9.12.82. He has not been paid It single farthing till date out of the amount of gratuity determined by respondent no. 4 amounting to a lump-sum of Rs. 30,000/-. Before the date of his retirement no judicial or departmental proceeding was initiated against him. It is contended in this writ petition that respondent no. 4 should be asked forthwith to release the entire pension and the gratuity amount as the State Government has no authority to initiate any disciplinary proceeding after his retirement. It is also submitted that under no circumstances the gratuity amount can be withheld beyond six months of the retirement of. Government servant by relying on clause 9 (Gha) of a Circular of the Finance Department bearing no. 3014 dated 31st July, 1980 providing the modalities of the Pension Rules. Learned counsel also referred to clause 7 (Kha) of the said Circular to fortify his submission that under no circumstances pension can be withheld if prior to superannuation there has been no initiation of any criminal proceeding or departmental proceeding against the retired Government servant. 4. It is no doubt true that pension is a property and not a bounty payable at the sweet will and pleasure of the Government but a valuable right vesting in a Government servant. It can not be taken away except according to procedure established by law-See the case of Deoki Nandan Prasad v. State of Bihar (A.I.R. 1971 Supreme Court 1409). It can not be taken away except according to procedure established by law-See the case of Deoki Nandan Prasad v. State of Bihar (A.I.R. 1971 Supreme Court 1409). Thus, it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. This decision is locus classicus on the subject and has been more than once reiterated by the Supreme Court in the case of State of Punjab v. Iqbal Singh (A.I.R. 1976 Supreme Court 667) and the case of D. S. Nakara v. Union of India reported in A.I.R. 1983 Supreme Court 130. 5. The Bihar Pension Rules define the conditions under which pension is earned by service under the Government of Bihar and in what manner it is calculated and paid. Rule 27 defines pension which includes gratuity. Chapter III deals with general provisions relating to grant of pension. Rule 43(b) empowers the Government to recover from the pension of a Government servant who enteredo service on or after 1st September 1939 of any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such Government servant during his service. The departmental proceedings, if not instituted while the Government servant was on duty, shall not be instituted save with sanction of the State Government and such proceeding if instituted with the sanction of the State Government shall have to be in respect of an event which took place not more than one year before the date on which the Government servant was last on duty. Rule 139, which deals with the amout of pension, mandates that full persion will not be admissible to a Government servant as a matter of course. If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. Rule 139, which deals with the amout of pension, mandates that full persion will not be admissible to a Government servant as a matter of course. If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. A conjoint reading of the aforesaid provisions to which our attention was drawn manifests that judicial or departmental proceedings ought to be started during the tenure of the service of the Government servant but such a proceeding can also be taken with respect to negligence or fraud causing losses to the Government only with the sanction of the State Government and that too with respect to an event which must not take place beyond one year of the date on which the Government servant was last on duty. From the writ petition it appears that a proceeding against the petitioner is pending which be came to learn from a letter dated 9.7.82 from the Chief Engineer, Irrigation, Ranchi, reminding him of his not having filed his statement in defence and asking him to do so. (Annexure 8). It has also been averred that he has been constantly reminded about filing of his defence and even though a copy of the proceedings has been forwarded to the petitioner but the enclosures thereto were not made available to him (Annexure 11). In paragraph 21 of the writ petition it has been averred, that the petitioner even though was exonerated by the Enquiring Officer of all the charges, he has not been supplied with a copy of the enquiry report. It is again stated that on receipt of the second show cause notice the petitioner requested respondent no. 3 to supply copies of the enquiry report and other relevant papers and by a letter dated 5.12.84 the petitioner has been asked to attend the officer for inspection of the documents and he was not supplied with any chit of paper. It is, therefore, submitted that the matter is being protracted and the proceeding initiated against the petitioner is not being concluded. 6. It is, therefore, submitted that the matter is being protracted and the proceeding initiated against the petitioner is not being concluded. 6. Learned counsel for the petitioner submitted that in view of the Circular dated 31st July, 1980, no disciplinary proceeding could at all have been taken against the petitioner after his retirement and even if it was so taken that not having been concluded within a period of six months the intire gratuity amount would have been paid to the petitioner. In support of his contention he has drawn our attention to the case of State of Assam v. Padma Ram Borah (A.I.R. 1965 Supreme Court 473) in ORDER :to impress upon us that disciplinary proceeding can only be initiated when the Government servant is in service and not after his superannuation. If the Government intends to initiate disciplinary proceeding in that event it can extend the service of the employee. In the said case the Supreme Court was considering Fundamental Rule 56 made by the Governor of Assam which related to the date of retirement of a Government servant and its extension on public grounds. In that context it was observed that Government could not by unilateral action create a fresh contract of service. After the date of retirement, which is automatic under Rule 56, if the State Government wishes to do so it should have so notified prior to the date of his retirement, that is, 31st March, 1961. This case, therefore, is of' no help to the petitioner. 7. The next case relied upon by learned counsel is the case of Sushil Kumar Chaudbary v. State of Bihar (A.I.R. 1966 Patna 227). In the said case a Division Bench of this Court held by reference to Rules 73 (a) and 73(f) of the Bihar Service Code that a Government servant cannot be retained beyond the date of superannuation for purposes of departmental enquiry as it cannot be said to be on public grounds. This is only permissible under Rule 73 (f) if the civil servant was suspended before the date of his compulsory retirement. This was again a case of extension of service and when such extension can be deemed to be on public grounds. This is only permissible under Rule 73 (f) if the civil servant was suspended before the date of his compulsory retirement. This was again a case of extension of service and when such extension can be deemed to be on public grounds. There is no reference to the Bihar Pension Rules and the provisions thereof which permit proceedings for recovery of losses caused to the Government by a Government servant while in service either by negligence or by fraud. 8. In the case of Jagdhari Roy v. State of Bihar (1969 : B. L. J. R. 553) Rule 43(b) of the Bihar Pension Rules 1950 was noticed. That was a case where the question arose whether departmental proceeding could have been continued after the retirement of the Government servant. It was held that it could be so done with the special sanction of the State Government even after the officer has retired. This case, therefore, is not an authority on the clear language of Rule 43(b)(1)(i), namely, "shall not be instituted save with the sanction of the State Government". We are of opinion on the clear language of the Rule that a particular type of departmental proceeding causing loss to the Government either by negligence or fraud by a Government servant ran be initiated for recovery of the loss even after the retirement of the Government servant out of the pension payable save with the sanction of the State Government. There are two other decisions strongly relied upon by learned counsel for the petitioner, namely, the case of Subba Rao v. State of Mysore (A.IR. 1964 Mysore 221) and the case of C. B. Dhall v. State Bank of India [1984 (1) L. L. J. 537]. In our opinion, those decisions are not apt with respect to a Government servant under the employment of the State of Bihar. In the Mysore case by reference to Mysore Civil Services (Classification, Control and Appeal) Rules 1957 and on the basis of the definition in Rule 2(d) and rule 8, it was held that a retired Government servant is not a Government servant within the definition of rule 2(d) and as such no disciplinary proceeding can be commenced or continued against him after retirement. It has then referred to Rule 289 of the Mysore Civil Services Rules which authorises reduction in the pension of a Government servant and it was held that since a retired Government servant is not a Government servant there can be no reduction in his pension under Rule 289. C.B. Dhall's case (supra) dealt with continuance of disciplinary proceeding against a bank employee after his retirement where it was held that a contract of employment is subservient to Pension and Provident Fund Rules which are statutory and the statutory rules having not conferred any right to continue a disciplinary proceeding after retirement the contract of employment, if any, must be ultra vires the said statutory rules. So far as pensioners of the State of Bihar are concerned, they are governed by the Bihar Pension Rules which confer power upon the Government to withhold pension in a particular type of departmental proceeding resulting in losses to the Government during the tenure of the service of the Government servant even after his retirement with respect, however, to an event which must not be beyond one year of his date of retirement. Further, the entire amount of pension is not automatically available to a pensioner if his service has not been thoroughly satisfactory and the authority sanctioning the pension can make such reduction in the amount as it thinks proper. These are statutory rules which must, as held in Deoki Nandan Prasad's case (supra), govern the Government servant. This power is not left to the sweet discretion of the Government. 9. So far, the circular of 31st July 1980 mandating the release of the entire gratuity within six months of the date of retirement, which cannot be withheld under any circumstances must be read in the light of the Bihar Pension Rules. There is no period of limitation to conclude a particular type of departmental proceeding provided under the Bihar Pension Rules. The Circular has to be subservient to the statutory rules and cannot have an independent role dehors the statutory rules. 10. However, even if the Government is entitled to initiate proceeding after the retirement of Government servant it has to be concluded at its earliest and he should not be exposed in the fall of his life to costly and unending litigation to claim what is due to him on the date on which the bond of service is snapped. 10. However, even if the Government is entitled to initiate proceeding after the retirement of Government servant it has to be concluded at its earliest and he should not be exposed in the fall of his life to costly and unending litigation to claim what is due to him on the date on which the bond of service is snapped. Five years have rolled by since the petitioner has retired and requests made from time to time by the petitioner to favour him with copies of the relevant papers to file an effective reply to show cause are said to have been ignored. If there is any truth in what has been stated in the writ petition, which led to the protraction of the proceeding, it is vary deprecable. We, therefore, direct the concerned respondents to immediately forward to the petitioner all such relevant papers available with the Department, which are sough to be used against him, and if they are voluminous, copies whereof cannot be easily given to the petitioner, he shall be allowed to inspect those documents wherever available. If the petitioner has to incur any expense for such inspection, he shall be entitled to travelling allowance therefor since it is a duty incumbent on the Government to make available to the petitioner the documents sought to be relied against him. It is not expected of a retired Government servant, whose pension has been withheld, to incur cost in a departmental proceeding initiated after his retirement. It is, however, made clear that the power to initiate a proceeding after the retirement of the Government servant must be used with care, caution and sparingly. In the second Deoki Nandan Prasad's case (A. I. R. 1984 Supreme Court 1560) it has been held that in the fall of his life a Government servant cannot be exposed to a costly litigation. The proceeding must be concluded within three months of the receipt of this ORDER :by the State Government if not protracted by the petitioner. If in spite of the filing of the show cause by the retired Government servant the disciplinary proceeding cannot be concluded within the said period, the petitioner shall be entitled to full pension and the entire gratuity should be released. 11. In the result, the writ application is disposed of with the aforesaid directions and observation.