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2000 DIGILAW 1219 (PAT)

State Of Bihar v. Ram Awadhesh Sharma

2000-11-01

D.P.S.CHOUDHARY, NAGENDRA RAI

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Judgment Nagendra Rai, J. 1. The State of Bihar is the appellant against the judgement dated 29th June, 2000 passed in CWJC No. 1757 of 1998 reported in 2000(4) PLJR 83, by a learned Single Judge by which he has allowed the writ application filed by the respondent and quashed the order passed by the appellant-State of Bihar withholding 100% pension and gratuity in exercise of power under rule 43(b) read with Rule 139 of the Bihar Pension Rules (hereinafter referred to as the Rules). (Annexure -20 to the writ application). 2. The necessary facts giving rise to the present appeal are that the writ petitioner-respondent was a member of Bihar Engineering Service Class-ll of Water Resources (Irrigation) department, Govt. of Bihar. In 1985, he was sent on deputation in Minor Irrigation Department and he was repatriated to his parent department in the year 1990. On 19.11.1992, he was suspended by the Government with regard to grave misconduct involving misappropriation of several lacs of rupees. On 23.3.1993, he was chargesheeted with regard to the said allegations. The allegations related to the period between April, 1985 and March 1988. The respondent filed CWJC No. 5808 of 1995 challenging the order of suspension and initiation of departmental proceeding. This Court disposed of the writ application on 28.8.1995. However, this Court did not interfere with the order of suspension, but directed the concerned authority to conclude the departmental proceeding by 31.12.1995 failing which the order of suspension shall stand vacated. The departmental proceeding was not disposed of within the aforesaid period and accordingly the order of suspension stood withdrawn with effect from 1.1.1996. On 31.1.1997, the respondent superannuated and by that time, no order in the departmental proceeding initiated against him was passed. However, it appears from the record that in a departmental proceeding the respondent was found guilty of misconduct and a second show cause notice was issued to him and a decision was taken to dismiss him from service, but as he retired, no order of dismissal was issued against him. On the other hand, a decision was taken to proceed against him under rule 43(b) of the Rules and accordingly, an order was passed on 13.12.1997 withholding 100% pension and gratuity on the ground of proved misconduct. On the other hand, a decision was taken to proceed against him under rule 43(b) of the Rules and accordingly, an order was passed on 13.12.1997 withholding 100% pension and gratuity on the ground of proved misconduct. Thereafter notice under Rule 139(a) (b) of the Rules was served to the respondent as to why his 100% pension and gratuity be not withheld under the aforesaid Rules. Consequently, he filed his show cause and after superannuation on 21.1.1999, a final order was passed withholding 100% pension and gratuity a copy of which has been annexed as Annexure-A to the supplementary counter affidavit. 3. The respondent challenged the aforesaid order and urged two points before the learned Single Judge. Firstly whether the departmental proceeding initiated against a government servant for alleged misconduct while in service, be continued on superannuation for the purpose of passing an order under rule 43(b) of the rules and secondly whether even if the departmental proceeding continues after superannuation of the Government for passing an order under rule 43 (b) of the Rules, whether an order can be passed witholding 100% pension etc. with regard to an allegation which was prior to four years of initiation of such proceeding. 4. The learned Single Judge decided the first point against the respondent and held that if the departmental proceeding has been initiated against the government servant while he was in service, the same will continue after retirement, if not concluded earlier, as a proceeding under rule 43 (b) of the Rules. However, he decided the second point in favour of the respondent and held that even if the departmental proceeding is initiated prior to superannuation and continued after superannuation, no penal order can be passed in respect of an event which took place more than four years before institution of the proceeding under rule 43(b) of the Rules read with Rule 139 of the Rules. No distinction can be made between the proceeding initiated before or after the retirement. No distinction can be made between the proceeding initiated before or after the retirement. In other words, it was held that the bar as incorporated in proviso (a) (ii) to rule 43 (b) of the Rules that the departmental proceeding in respect of an event taking place more than four years before the institution of such proceeding is applicable not only to the proceeding initiated under the rules after the retirement, but also to the departmental proceeding initiated prior to the retirement but continued after retirement for passing an order under rule 43(b) of the Rules. 5. The learned counsel appearing for the appellant-State submitted that the learned Single Judge has wrongly held that even with regard to departmental proceeding initiated against the government servant while he was in service, but later on continued for passing an order under Rule 43(b) of the rules, the proviso (a) (ii) to rule 43 (b) of the Rules, which provides that no departmental proceeding shall be in respect of an event which took place not more than four years before the insitution of such proceedings, is applicable. He further submitted that the said proviso is applicable to the departmental proceeding initiated after the superannuation of the government servant. If the departmental proceeding has already been initiated and in the meantime no order is passed in the said proceeding and the government servant superannuates, then that proceeding will continue for passing an order under rule 43(b) of the Rules and the bar of limitation will not apply. 6. The learned counsel appearing for the respondent on the other hand cornbatted the aforesaid submission and supported the judgment of the learned Single Judge. He further submitted that proviso (a) (ii) to rule 43 (b) of the Rules which provides that the departmental proceeding should be in respect of an event which took place not more than four years before the institution is also applicable to the departmental proceeding initiated against the government servant while in service but continues after retirement for the purpose of passing an order under Rule 43(b) and 139 of the Rules. 7. To appreciate the point, it is apt to quote rule 43 and rule 139 of the Rules : 43. (a) Future good conduct is an implied condition of every grant of a pension. 7. To appreciate the point, it is apt to quote rule 43 and rule 139 of the Rules : 43. (a) Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (b) The State Government further reserve to themselves the right of witholding 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 pecuniary 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 pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment 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 Govenment; (ii) shall be in respect of an event which took place not more than four yeas 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 subclause (ii) or clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation.For the purpose of the rule (a) departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil court." "139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the Pension should make such reduction in the amount as it thinks proper. (c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if, they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, or any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed." 8. The bare reading of rule 43 (b) of the rules shows that if the retired employee is found in a departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service, the Government has right to withhold or withdraw pension or any part of it, whether permanently or for a specified period, and may also order for recovery from a pension of the whole or part of any pecuniary loss caused to Government. Before pensionary benefit can be withdrawn or withheld, a finding of grave misconduct or to have caused pecuniary loss by the Government servant has to be arrived at in a departmental or judicial proceeding. Before pensionary benefit can be withdrawn or withheld, a finding of grave misconduct or to have caused pecuniary loss by the Government servant has to be arrived at in a departmental or judicial proceeding. The proviso (a) to rule 43(b) of the rules provides that if the departmental or judicial proceeding has not been instituted earlier while the government servant was in service, then fresh proceeding can be initiated. However, certain conditions have been put before initiation of fresh proceeding. If the departmental proceeding is pending while the government servant was in service, then after superannuation that may be continued and order may be passed in terms of rule 43(b) or 139 of the Rules as after retirement no order of punishment in shape of dismissal etc. can be passed against the government servant. The question that the pending departmental proceeding after superannuation of the government servant may be continued and order can be passed under rule 43(b) of the rules is no longer res integra and has been concluded by a division bench and Full bench judgments of this Court. Reference in this connection may be made to the Full Bench judgment of this Court in the case of Shambhu Saran V/s. The State of Bihar & others [ 2000(1) PLJR 665 ) wherein in paragraph 5 of the said judgment it has been held as follows. "The only point involved before us is whether Rule 43(b) is attracted in the facts of this case and whether under the said Rule, even when such disciplinary proceeding was initiated before the retirement, whether it could be continued after the retirement under the provisions of Rule 43(b). It is true that Rule 43 does not say expressly that such proceeding may be continued after such superannuation. However, in our opinion, it is inherent in the said Rule. The opening words of proviso (a) state that "such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment." In our opinion such expression makes it quite clear that such enquiry if initiated before, may be continued even after such retirement. In any event, by necessary implication also it is quite clear that continuance of such enquiry after superannuation is permitted by the said Rules. In any event, by necessary implication also it is quite clear that continuance of such enquiry after superannuation is permitted by the said Rules. In this contest, it may be pointed out that if the Government servant is in service, the disciplinary proceeding can be initiated against him and certain punishments may be imposed upon him as provided in the relevant Classification, Control and Appeal Rules. However, such punishments cannot be imposed upon him if retired from service. After his retirement he cannot be punished otherwise but pension can be withheld and other steps taken as contemplated by the said Rule 43. Punishments, major, or minor, like dismissal or removal from service or withholding of increments etc., which contemplates that he is still in service, cannot be imposed upon him. In such view of the matter, if such a person has committed some wrong, merely because he retires and no remedy remains available to the Government even if there was good case against him, then would be incongruous. Accordingly such a provision was made to that effect. It is in order to fill up this lacuna that provisions like rule 43(b) has been introduced." 9. The question for consideration in this appeal is as to whether even with regard to proceeding which was initiated before the superannuation of the Government servant and continued after his superannuation for the purpose of passing an order under rule 43(b) of the Rules, the conditions mentioned in the proviso to rule 43(b) of the rules will apply. 10. From perusal of the rule 43(b) of the rules as extracted above, it is clear that the conditions for initiation of a fresh proceeding after superannuation of the government servant has been laid down in the proviso to rule 43(b) of the rules. One of the conditions as provided in proviso to rule 43(b) of the rules is this that the said proceeding should be with regard to event which took place before four years of the initiation of fresh proceeding. The said condition has no application at all to the departmental proceeding pending before and continued for the purpose of passing an order 43(b) or 139 of the Rules. The learned Single Judge for coming to the aforesaid conclusion has relied upon the decision of the Supreme Court in the case of State of Bihar and others V/s. Mohd. The said condition has no application at all to the departmental proceeding pending before and continued for the purpose of passing an order 43(b) or 139 of the Rules. The learned Single Judge for coming to the aforesaid conclusion has relied upon the decision of the Supreme Court in the case of State of Bihar and others V/s. Mohd. Idris Ansari [1995 Supp (3) Supreme Court Cases 56;1995(2) PLJR(SC) 51]. It appears that in the said case respondent Md. Idris Ansari was working as an employee of the Irrigation Department of the appellant-State. A misconduct was alleged against the respondent which related to period 1986-87. A notice was issued in 1987 asking him as to why appropriate action be not taken against him and on 6.6.1992 an order for punishment was passed with regard to alleged misconduct. He challenged the aforesaid order before this High Court in CWJC No. 6696 of 1992 and the order of punishment was set aside on the ground of violation of principles of natural justice and an opportunity was given to the State Government to proceed afresh against the respondent Md. Idrish Ansari. Before any fresh proceeding could be initiated, he superannuated on 31.1.1993. Thereafter again a notice was issued to submit his explanation on 17.7.1993, but before any further steps could be taken in the said notice, a second show cause notice was also issued on 27.9.1993 intimating that as he had already superannuated from service and the period of charges were prior to four years, no action can be taken against him under rule 43 (b) of the rules and accordingly, the Government had decided to issue show-cause notice under rule 139(a) and (b) of the Rules withholding 70% of his pension payable to him. The said order was challenged before the High Court and the High Court set aside the aforesaid order which was challenged before the Supreme Court by the State of Bihar. Dealing with the said matter, the Apex Court held that as the notice was issued under rule 139(a) and (b) of the Rules on the ground of alleged misconduct and the said misconduct was committed prior to four years from the date on which a show cause dated 27.9.1993 was issued to him, the appellant- authority has no power to invoke rule 139(a) and (b) of the rules against the respondent on the ground of proved misconduct. It was further held that no order can be passed under rule 139 (a), as a conjoint reading of rule 43(a) and Rule 139(a), there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show cause notice dated 27.9.1993 was issued. 11. The said case is not an authority that even with regard to departmental proceeding continued after retirement for passing an order under rule 43 (b) or 139(a) of the Rules, the alleged misconduct should have been committed by the delinquent employee within four years from the date of initiation of the proceeding while the government servant was in service. From the said judgment it is clear that the requirement of rule 43(b) of the rules has to be complied with only in a case of departmental proceeding initiated after retirement of the Government servant. Nowhere, in the judgment, it has been held that the said requirement has also to be complied with regard to departmental proceeding initiated while the government servant was in service and continued after his retirement. In a case of grave misconduct and financial irregularities, departmental proceeding against the delinquent employee is initiated and on prove of the alleged misconduct, punishment is awarded. After superannuation, he cannot be awarded punishment and therefore, provisions have been made under rule 43(b) of the rules to withhold pension etc. for the simple reason that if the government servant retires from service after attaining the age of superannuation, he cannot escape the liability of negligence or financial irregularities. Rule 43(b) of the rules however makes a distinction between the departmental proceeding initiated before the superannuation and after the superannuation. In the case of a proceeding which was pending from before, the only requirement that that has to be continued and order of misconduct has to be passed and thereafter consequential order has to be passed with regard to retirement benefits etc. However, if the departmental proceeding has not been initiated against the alleged misconduct while the government servant was in service, the power has been given to the concerned authority to initiate a fresh proceeding for the alleged misconduct provided the conditions mentioned in the proviso are fulfilled. However, if the departmental proceeding has not been initiated against the alleged misconduct while the government servant was in service, the power has been given to the concerned authority to initiate a fresh proceeding for the alleged misconduct provided the conditions mentioned in the proviso are fulfilled. There is good reason for putting such conditions, one of them being that the event must have been taken place not more than four years from the date of such proceeding. The said condition has been put to protect the retired employees from harassment after expiry of certain period. This question is also no longer res Integra and has been decided by a Full Bench of this Court in the aforesaid Shambhu Sarans case wherein it has been held that this condition imposed by provisos (a) (ii) to rule 43(b) of the Rules has been inserted to safeguard the inter-rest of the retired government servant. The question of such safeguard does not arise if there is already pending departmental proceeding against the government servant at the time of superannuation. There is no question of any harassment in such a case. In this connection, it is relevant to quote paragraph 8 of the said judgement : "The other point to be noticed is that a distinction is made in Rule 43(b) between a case where a disciplinary enquiry is already pending at the time of such superannuation and where no such disciplinary enquiry is pending at the time of retirement. Certain safeguards have been provided so that there may be no undue harassment after retirement when no proceeding had been initiated before his retirement. Even though there is no pending disciplinary proceeding at the time of such retirement, certain conditions as contemplated by clauses (i), (ii) and (iii) thereof, are imposed for safeguarding the interest of the Government servant concerned. Certain limitations on the powers of the authority concerned to initiate a fresh proceeding after retirement, where no such proceeding was initiated before such retirement, have been provided for to prevent any misuse of such power. But the question of providing such safeguard does not arise if there is already a disciplinary proceeding pending at the time of the superannuation of the Government Servant concerned. There is no question of any harassment in such a case and, accordingly, no condition has been imposed. There is a good reason for the same. But the question of providing such safeguard does not arise if there is already a disciplinary proceeding pending at the time of the superannuation of the Government Servant concerned. There is no question of any harassment in such a case and, accordingly, no condition has been imposed. There is a good reason for the same. Unless that power is conferred by virtue of the said provision, once a retirement takes place, then the employee concerned can easily say that he was beyond the scope of any action whatsoever. In that view of the matter, this provision has been made in the rule itself and the rule itself contemplates that a disciplinary proceeding, if already initiated, can be continued even after retirement. As we have already stated, that can be spelt out from the language of the provision itself, and, in any view of the matter, that can be spelt out by necessary implication. Accordingly, in our view, it is open to an authority concerned to continue with a disciplinary enquiry which was initiated before his retirement. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue. No such condition has been laid down in rule 43 in respect of a case where such a proceeding has already been initiated as required by the three conditions in respect of initiation of a fresh proceeding after such retirement. We cannot import the requirement of such a condition which is not in the rules. This would be against the principle of casus omissus. If we accept the contention that such an order of the Government is required before such proceeding can be continued, then we shall be introducing a condition in the rule, which the rule does not provide for. In that view of the matter, we agree with the views expressed by the latter Division Bench and we hold that the Division Bench decision in the case of Singheshwari Sahay V/s. State of Bihar and others reported in 1979 BBCJ 735 has not been correctly decided." 12. In that view of the matter, we agree with the views expressed by the latter Division Bench and we hold that the Division Bench decision in the case of Singheshwari Sahay V/s. State of Bihar and others reported in 1979 BBCJ 735 has not been correctly decided." 12. Thus my considered view is that if the departmental proceeding was pending before the superannuation of the government servant concerned and continued after his superannuation for the purpose of passing an order under rule 43 or 139 of the rules, then the conditions mentioned in proviso to rule 43(b) of the rules are not applicable. The said proviso is applicable only in a case of fresh proceeding initiated after superannuation of the government servant. Thus one of the conditions as provided in proviso to rule 43(b) that the proceeding should be in respect to an event which took place not more than four years before the institution, is not applicable with regard to departmental proceeding which was pending against the government servant before superannuation and continued thereafter in terms of rule 43(b) of the rules. Accordingly, the learned Single Judge has wrongly held that the bar of four years will also apply with regard to the departmental proceeding initiated prior to the superannuation of the government servant but continued thereafter for the purposes of passing an order under Rule 43(b) and 139 of the Rules. 13. The learned Single Judge has considered the question as to whether the inquiry, on the basis of which an order has been passed, has been conducted in violation of the principles of natural justice or not. According to him, the proceeding was not conducted consistent with the requirement of natural justice. The learned counsel for the appellant-State did not bring to the notice of the Court any material to show that the finding arrived at by the learned Single Judge on the said ground is against the material on the record. Accordingly, though the main ground given by the learned Single Judge for quashing the impugned order is held to be impermissible in law, the order passed by him quashing impugned order is upheld on the second ground that the order was in violation of the principles of natural justice. 14. The next question as to what should be done after quashing the impugned orders. 14. The next question as to what should be done after quashing the impugned orders. The material on the record shows that there are grave allegations of misconduct involving several lacs of rupees against the respondent and in such a situation it will not be proper to terminate the proceeding against the respondent by quashing the impugned orders. In my view, the matter has to be remitted to the State Government and after giving a full opportunity of hearing, the matter has to be decided afresh. 15. Accordingly, the appeal is allowed in part and the order of the learned Single Judge quashing the impugned order withholding 100% pension and gratuity etc. is upheld and the matter is remitted to the appellant-State to consider the matter afresh after observing the principles of natural justice in the light of observations made by the learned Single Judge. D.P.S.Choudhary, J. 16 I agree.