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1996 DIGILAW 50 (PAT)

Ram Lakhan Singh v. State Of Bihar

1996-01-29

RADHA MOHAN PRASAD

body1996
Judgment 1. The petitioner in the writ application has prayed for quashing of the notification dated 22.3.1994, contained in Annexure 12, whereby a decision has been taken by the state Govep. Nment in the Water Resources department for reducing his pension by 50% and, further, for a direction to the respondents to grant full pension to him and to release 10% of his Pension and death-Cum-Retirement Gratuity (D. C. R. G.)on the basis of his revised pay so far withheld by them, and to pay the difference of his leave salary and interest, for delayed payment of pensionary benefits. 2. The short relevant facts of the case are that the petitioner joined as Junior Engineer in the state Service on 7.7.1955 and was promoted to the post of Assistant Engineer on 4.4.1968. The petitioner retired from service on 31.3.1991 while working as executive Engineer. On 29.3.1993, he was provisionally sanctioned post retirement benefit at the rate of 90% pension and 90% gratuity. On 3.4.1993 a show cause notice (Annexure 8) was issued to him purporting to be under rule 139 (b) of the Bihar Pension Rules, 1950 (in short the Rules), in response to which the petitioner submitted his reply, which is contained in Annexure 9. On 25.1.1994, a second show cause notice was issued to the petitioner as to why his pension be not reduced by 50% under rule 139 (b) of the Rules to which he also submitted his reply, vide Annexure 11, whereafter the impugned notification (Annexure 12) was issued. 3. From a bare perusal of the impugned notification, contained in Annexure 12, it would appear that the decision of the government to reduce the pension of the petitioner by 50% was taken pursuant to the show cause notice issued to him under rule 139 (b) of the Rules in relation to certain allegations while he was posted as Assistant engineer (Mechanical) in the years 1981-82 and 1982-83. 4. A counter affidavit has been filed on behalf of the State in which it is not disputed that the allegations which have been taken into account for passing of the impugned notification relate to the years 1981-82 and 1982- 83. 4. A counter affidavit has been filed on behalf of the State in which it is not disputed that the allegations which have been taken into account for passing of the impugned notification relate to the years 1981-82 and 1982- 83. In paragraph 2 of the said counter affidavit it is stated that the complaint was received against the petitioner in the office of the Chief Engineer, Daltonganj and the copy whereof was sent to the Chief minister, Irrigation Minister, Irrigation Commissioner, lokayukta, Bihar, Engineer- in-Chief, Cabinet (Vigilance) Department and the Petition Committee, Bihar in the year 1982 for several financial and other irregulaities committed by the petitioner and others when the petitioner was posted as assistant Engineer in the North Koel project, Mandal, Palamau and the matter was under enquiry by the (Cabinet)Vigilance Department. In the meantime, the petitioner retired from service and therefore, only 90% of the pension and gratuity were sanctioned. After receipt of the report of the vigilance Committee, the matter was examined by the government which decided to call for the explanation from the petitioner and action was taken under rule 139 (b) of the Rules. 5. It is contended by Mr. S. K. Katriar, the leap. Ned counsel for the petitioner that in fact, action has not been taken under rule 139 (b) of the Rules though the impugned notification purported to have been issued under the said provision and under rule 43 (b) of the Rules, no action can be taken in regard to the alleged charges which relate to an event which took place much beyond four years for the institution of a proceeding. The Supreme Court in the case of State of Bihar V/s. Mohd. Idris Ansari [1995 (2) PLJR (S. C.) 51] held that a conjoint reading of rule 43 (b) and rule 139 projects the following pictures : - "i. A retired Government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory. II. Even if the service record of the concep. II. Even if the service record of the concep. Ned officer is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct against the concerned officer during his service tenure, the State Government can exercise revisional power to reduce the pension but the revision is also subject to the rider that it should be exercised within 3 years from the order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond the period. " 6. In the present case, the petitioner superannuated from service on 31.3.1991 and the show cause notice under rule 139 (b) of the Rules was issued on 3.4.1993. It is not the case of the respondents that the said show cause notice was issued on the ground that the service record of the petitioner was not thoroughly satisfactory. 7. As per the aforementioned provisions, a retired Government servant can be found guilty of grave misconduct during his setvice career pursuant to the departmental proceeding conducted againt him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of such departmental proceeding against him. 8. In this case, the show cause notice was issued in respect of an event constituting charges much beyond four years of such proceedings which is not permissible under rule 43 (b) of the Rules. 9. The Supreme Court in the aforementioned case which is similar to the persent case held that in such proceedings if the petitioner was found guilty of misconduct he could have been properly proceeded under rules 139 (a) and (b) but since the power invoking rule I39 (a) and (b) was exercised on the ground of past misconduct which is committed by the petitioner prior to four years from the date on which show cause notice was issued, the State had no power to invoke rule 139 (a) and (b) of the rules, against the petitioner on the ground of proved misconduct. Consequently, the apex Court held that proceedings under rule 139 were wholly incompetent and affirmed the quashing of the order by the high Court. 10. Leap. Consequently, the apex Court held that proceedings under rule 139 were wholly incompetent and affirmed the quashing of the order by the high Court. 10. Leap. NED Government Pleader No. IX appearing for the State fairly conceded that i; yiew of the law laid down by the apex Court in the case of State of Bihar V/s. Mohd. Idris Ansari (Supra), the impugned notification cannot be sustained. 11. Accordingly, the impugned notification (Annexure 12)is quashed. The respondents are directed to release the remaining 10% of the pension and Death-Cum-Retire-ment Gratuity of the petitioner kept withheld by them within two weeks of the receipt of a copy of this order. 12. As regards the difference in the leave salary, the petitioner may approach the appropriate authority who shall consider and dispose of the same by a reasoned order. In so far as the claim of the petitioner for payment of interest for delayed payment of pensionary benefits, in the peculiar facts and circumstances of this case, I do not feel persuaded to allow the same. 13. In the result, the writ application is allowed, as indicated above, but without costs.