Ram Nandan Singh v. State of Bihar — 1998 DIGILAW 38 (PAT)

Order With the consent of the parties, this writ application is being disposed of at the stage of admission itself. 2. The petitioner, who superannuated as Joint Registrar, Co-operative society from Gaya Division, Gaya, on 31.5.1996, has filed the present writ application originally challenging the resolution as contained in memo no. 1268 dated 28.5.1996, by which a departmental proceeding was initiated by the Government of Bihar, Department of Co-operation, under Rule 55 of the Bihar Civil Services (Classification, Control and Appeal). Rules, a copy of which has been annexed as Annexure 11 to the writ petition as well as for a direction upon the respondents to make payment of post-retiral benefits to him. During the pendency of the Writ application, another order was issued by the State Government dated 17.7.1997, converting the departmental proceeding under Rule 43(b) of the Bihar Pension Rules on the ground that during the pendency of the departmental proceeding, the petitioner has superannuated with effect from 31.5.1996, a copy of which has been appended as Annexure 17 and, thereafter, the petitioner filed an amendment petition challenging the said order. 3. The facts, which are not in dispute, are that while the petitioner was posted as Joint Registrar, Co-operative Society in Gaya Division, he was suspended on 22.5.1996 and a departmental proceeding was initiated on 28.5.1996, as contained in Annexure 11, on the allegation that by creating false and forged documents, he had obtained leave though during that period, a warrant of arrest was issued against him in criminal case. On 4.7.1996, a supplementary charge-sheet was served upon the petitioner in the departmental proceeding, wherein two charges were also alleged against him regarding illegal payment as well as doing act beyond his power. These two matters, it appears, relate to the period of 1987 and prior to that. 4. As the petitioner has superannuated and the departmental proceeding vide Annexure 11 has been converted into a proceeding under Rule 43(b) of the Bihar Pension Rules vide Annexure 17, learned counsel for the petitioner has challenged the order, as contained in Annexure 17, on the ground that the proceeding is not maintainable as it relates to an event, which took place prior to four years of the initiation of the proceeding under Rule 43(b) of the Bihar Pension Rules vide Annexure 17. 5. 5. Learned counsel appearing on behalf of the State, on the other hand, contended that the departmental proceeding was, admittedly, initiated against the petitioner while he was in service and after his retirement, now the proceeding has been ordered to be continued to determine the guilty of misconduct of the petitioner for the purposes of passing an order in terms of Rule 43(b) of the Bihar Pension Rules. As the proceeding under Rule 43(b) of the Bihar Pension Rules is in continuation of the earlier departmental proceeding, there was no requirement that the proceeding should be in respect of an event, which took place not more than four years before the initiation of such proceeding. The aforesaid bar applies to only such cases where the proceeding is initiated after the superannuation of the concerned Government employee. He also alternatively submitted that even if the submission of the learned counsel for the petitioner is accepted, the same is not applicable in this case as the main charge in this case is with regard to an event, which took place in 1986 and as such the said bar is not applicable. 6. It is not disputed and, in my view, rightly by the learned counsel for the petitioner that if the Government servant is in service, then a departmental proceeding can be initiated with regard to an event, which might have taken place at any time during the tenure of his service. The only question for determination in this case is as to whether the Government servant, against whom a disciplinary proceeding was pending, has superannuated, the same can be continued under the Bihar Pension Rules even with regard to an event, which had taken place more than four years prior to the initiation of the earlier departmental proceeding in terms of Rule 43(b) of the Bihar Pension Rules. If the Government servant is facing a departmental proceeding and he is going to superannuate, it is open to the authorities, if the Rule permits, to extend the period of service and to decide the proceeding or if it is not possible to decide the proceeding, then to allow the employee to retire and, thereafter, to take an action under the relevant Rules for deduction of pension etc. 7. 7. In the case of State of U.P. vs. Shri Brahm Datt Sharma, reported in A.I.R. 1987 Supreme Court 943, the respondent of that case was an Executive Engineer in the Irrigation Department. He was dismissed in a departmental proceeding. The High Court set aside the order of dismissal on the ground that he had not been afforded reasonable opportunity. While the matter was pending in the High Court, the delinquent employee superannuated and, accordingly, the court passed an order for payment of post-retiral benefits. Thereafter, the State Government initiated a proceeding for forfeiture of his pension and gratuity in accordance with Article 470(b) of the Civil Service Regulations on the ground that his services were not satisfactory. The said order was challenged in the High Court and the High Court held that since the departmental proceedings taken against the respondent had already been quashed, it was not open to the State Government to issue show-cause notice under the aforesaid Regulations on those very allegations which formed charges in the disciplinary proceedings. Dealing with the said matter, the apex court held that if disciplinary proceedings against an employee of the Government are initiated in respect of misconduct committed by him and if he retired from service on attaining the age of superannuation, before the completion of the proceedings, it is open to the State Government to direct deduction in his pension on the proof of the allegations made against him. If the charges are not established during the disciplinary proceedings or if the disciplinary proceedings are quashed, it is not permissible to the State Government to direct reduction in the pension on the same allegations, but if the disciplinary proceedings could not be completed and if the charges of serious allegations are established, which may have bearing on the question of rendering efficient and satisfactory service, it would be open to the Government to take proceedings against the Government servant in accordance with the rules for the reduction of pension and gratuity. 8. Thus, it is well-settled that if the Rule permits, the departmental proceeding can be continued even after the retirement of the Government employee and on proof of the guilt of misconduct, the order can be passed for withholding of pension and grautity etc. for the simple reason that after superannuation of the Government employee, no order can be passed for his dismissal etc. from service. 9. for the simple reason that after superannuation of the Government employee, no order can be passed for his dismissal etc. from service. 9. At this stage, it is apt to quote Rule 43(b) of the Bihar Pension Rules, which runs as follows : "43 (b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pencuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pencuniary loss to Government by misconduct or negligence, during his service including service rendered on reemployment after retirement : Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment shall have been instituted in accordance with sub-clause (ii) of clause (a) ; and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed." A bare perusal of Rule 43(b) of the Bihar Pension Rules shows that the disciplinary authority, consequent upon the conclusion of the departmental proceeding or judicial proceeding, should record a finding whether the delinquent has committed a misconduct or caused pecuniary loss to the Government by his conduct or negligence during his service including service rendered on re-employment and, thereafter, to pass an order in terms of the Rules for withholding of the pension etc. Proviso to Rule 43(b) of the Bihar Pension Rules provides that if such departmental proceeding has not been instituted while the Government servant was in service, then the same shall not be instituted until the conditions mentioned in clauses (i), (ii) and (iii) of proviso(a) of Rule 43(b) of the Bihar Pension Rules are fulfilled. Clause (ii) of the said proviso provides that such departmental proceeding, if not instituted while the Government servant was in service, shall be in respect of an event which took place not more than four years before the institution of the proceedings. Thus, the bar of institution of a proceeding with regard to an event, which took place more than four years from the date of institution of such proceeding, is attracted only in such cases where the departmental proceeding is instituted after retirement of the Government servant. The reason is obvious. During the service, there is no such bar for institution of the departmental proceeding. As such the proceeding, instituted while the Government employee was in service, is to be continued under Rule 43(b) of the Bihar Pension Rules after retirement and the same cannot be dropped on the ground that the event had taken place more than four years before the conversion or continuance of the proceeding in terms of Rule 43(b) of the Bihar Pension Rules after superannuation of the Government servant. 10. Learned counsel for the petitioner, as stated above, however, contended that the bar under clause (ii) of proviso(a) of Rule 43(b) of the Bihar Pension Rules is attracted even in the cases where the proceeding, instituted while the Government servant was in service, continued to determine the guilt of misconduct for the purposes of passing an order in terms of Rule 43(b) of the Bihar Pension Rules. In support of his submission, he relied upon a judgment of the apex court in the case of State of Bihar vs. Mohd. Idris Ansari, reported in AIR 1995 Supreme Court 1853 : 1995 (1) PWR 51 (SC). 11. In my view, the case of State of Bihar (supra) does not support the contention raised on behalf of the petitioner. The facts of the said case are that respondent Mohd. Idris Ansari was proceeded against in a departmental proceeding on the ground of grave misconduct and punishment was awarded to him on 6.6.1992. 11. In my view, the case of State of Bihar (supra) does not support the contention raised on behalf of the petitioner. The facts of the said case are that respondent Mohd. Idris Ansari was proceeded against in a departmental proceeding on the ground of grave misconduct and punishment was awarded to him on 6.6.1992. The said order was challenged in this court and this court allowed the writ application on the ground that the principles of natural justice were violated. However, liberty was given to the State to proceed afresh against said Mohd. Idris Ansari. In the meantime, on 31.1.1993, said Mohd. Idris Ansari superannuated and, thereafter, fresh explanation was asked from him on 17.7.93. However, another show-cause notice was issued to him on 27.9.1993 intimating to him that as he had already retired from service and the period of charges as prior to four years, no action could be taken against respondent Mohd. Idris Ansari under Rule 43(b) of the Rules and that the Government had decided to issue show cause notice under Rule 139 of the Rules. Thereafter, a final order was passed withholding the pension. The said orders were challenged in the High Court and the High Court quashed the same. Thus, it is clear that in that case, fresh proceeding was initiated after retirement of the Government servant and dealing with the said matter, the apex court held in paragraph 7 as follows : "A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned Government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at-least six years old, Rule 43(b) was out of picture. Even the respondent-authorities accepted this legal position when they issued notice dated 27.9.1993. As the alleged misconduct by 1993 was at-least six years old, Rule 43(b) was out of picture. Even the respondent-authorities accepted this legal position when they issued notice dated 27.9.1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17.10.1987 as proceedings pursuant to it were quashed by the High Court in that petition 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17.10.1987 from the stage it got vitiated. The respondent also therefore, did not rely upon the said notice dated 17.10.87 but initiated fresh departmental inquiry by the impugned notice dated 27.9.1993. Consequently it is not open to the learned Advocate for the appellant to rely upon the said earlier notice dated 17.10.1987." Thus, the apex court in the said case held that if in a case after retirement of the Government servant, recourse is taken to Rule 43(b) of the Bihar Pension Rules, then the requirements of sub-clauses (i), (ii) and (iii) of proviso (a) of Rule 43(b) have to be fulfilled. The said case is not an authority that even if a departmental proceeding was pending at the time of superannuation and after superannuation, the departmental proceeding is continued to determine the misconduct for the purpose of passing an order in term of Rule 43(b) of the Bihar Pension Rules, the proceeding must be with regard to an event, which had taken place not more than four years before the order continuing the proceeding. 12. Learned counsel for the petitioner also placed reliance on a judgment of this court in the case of Md. Wakil vs. The State of Bihar, reported in 1997(2) P.L.J.R. Page-933, wherein a learned Single Judge held that once a Government servant superannuated from service, he goes beyond the disciplinary control of the Government and, thereafter, only such proceeding may be initiated against the concerned Government servants expressly provided under the law, rules. 13. The aforesaid observation in the case of Md. Wakil (supra), in my view, does not help the petitioner in this case. 13. The aforesaid observation in the case of Md. Wakil (supra), in my view, does not help the petitioner in this case. Rule 43(b) of the Bihar Pension Rules, as quoted above, itself provides that the steps may be taken after superannuation of the Government employee for withholding or withdrawing of the pension on proof of misconduct in a departmental proceeding or guilt in a judicial proceeding. If the proceeding is pending from before, the same may be continued or if not instituted while the Government servant was in service, then it can be instituted even after his retirement provided it must relate to an event, which had taken place not more than four years before the institution of such proceeding. The view taken by me finds support from the law laid down by the apex court in the case of State of U.P. vs. Shri Krishna Pandey, reported in (1996) 9 S.C.C. 395 , in which the proceeding was initiated against the delinquent employee after attaining the age of superannuation. Regulation 351-A of Civil Services Regulations is pari materia with the provision of Rule 43(b) of the Bihar Pension Rules. In paragraph 6 of the said judgment, it was held as follows : "It would be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as a disciplinary measure and the action initiated earlier would remain unabated after retirement. If Regulation 351-A is to be operative in respect of pending proceedings, by necessary implication prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the Regulation also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But in the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. But in the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on 31.3.1987 and the proceedings were initiated on 21.4.1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under those circumstances, the State had disabled itself by their deliberate respondent and allowed the officer to escape from the provisions of Regulation 351-A of the Regulations. This order does not preclude proceeding with the investigation into the offence and taking action thereon." 14. A similar provision of the Punjab Civil Services Rules, which is pari materia with the provision of Rule 43(b) of the Bihar Pension Rules, was considered by the apex court in the case of High Court of Punjab and Haryana vs. Amrik Singh, reported in 1995 Supp(1) S.C.C. Page 321 and it was held as follows : "A reading thereof clearly indicates that the disciplinary authority, consequent upon the result of the departmental or judicial proceedings, should record a finding whether the delinquent has committed grave misconduct or negligence during the period of his service including the service rendered upon re-employment after retirement. On recording such a positive finding, the competent authority has been empowered to withhold the pension in whole or in part or to recover the pecuniary loss, if any, caused to the Government. These orders are only consequential to the finding of the guilt of grave misconduct or negligence in the discharge of the duty during the period of his service including the service rendered upon re-employment after retirement." 15. Thus, my conclusion is that the proviso(a)(ii) of Rule 43(b) of the Bihar Pension Rules is attracted only in the cases where a departmental proceeding is instituted after superannuation of the concerned Government employee. Thus, my conclusion is that the proviso(a)(ii) of Rule 43(b) of the Bihar Pension Rules is attracted only in the cases where a departmental proceeding is instituted after superannuation of the concerned Government employee. If the proceeding is instituted from before and only there is continuance of the proceeding after superannuation in terms of Rule 43(b) of the Bihar Pension Rules, there is no requirement that it must relate to an event, which took place not more than four years before the date of either initial institution of the proceeding or conversion of the proceeding under Rule 43(b) of the Bihar Pension Rules. 16. So far as the payment of postretirement benefits is concerned, the petitioner is being paid provisional pension and he has also been sanctioned the amount of G.P.F. and Group Insurance. According to the Government Resolution no. 3014 dated 31.7.1980, he is not entitled to get gratuity and leave salary during the pendency of the departmental proceeding and as such no direction can be issued for payment of other post-retiral benefits during the pendency of the proceeding. Effort should be made to dispose of the proceeding at a early date, preferably within a period of six months from the date of receipt/production of a copy of this order. 17. In the result, this application is dismissed with the aforementioned observation.