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2000 DIGILAW 473 (PAT)

Shanti Devi v. State Of Bihar

2000-03-27

SHIVA KIRTI SINGH

body2000
Judgment Shiva Kirti Singh, J. 1. This writ application bearing C.W.J.C. No. 9218/89 under Articles 226 and 227 of the Constitution of India was originally filed by one Raghunandan Dwivedi, a retired engineer who died dring the pendency of this writ application and has been substituted by his wife and two sons. The original prayers made in the writ application were to (i) confirm the petitioner as Executive Engineer in the department of Water Resources, Government of Bihar with effect from February, 1976 when his juniors were so confirmed (ii) to promote the petitioner to the post of Superintending Engineer with effect from November, 1986 when his junior was so promoted and (iii) to pay the arrears of salary etc. on account of the promotions claimed and the consequent dues of retiral benefits. During the pendency of this writ application an order dated 22-11-90 was brought on record as annexure-A to the counter affidavit of the respondents. The petitioner has sought to challenge that order through an amendment petition filed on 20-8-1991. 2. Later on as a consequence of aforesaid order dated 22-11-90 the Accountant General of Bihar issued an order dated 11-7-1995 by which petitioner was informed that 50% of his pension has been deducted. To challenge this order dated 11.7.1995 which is admittedly only a consequence of order dated 22-11-90 the petitioner filed another writ application bearing C.W.J.C. No. 5581/95. Since both the writ applications arise out of identical facts and relate to the same petitioner hence both the cases have been heard together and are being disposed of by this common judgment. 3. Petitioner was appointed as an Engineer Assistant in the Department of Irrigation in September, 1956. On 21-1- 1960 he was appointed as an Assistant Engineer in River Valley Project another department of the Government of Bihar. It is not in dispute that the River Valley Project and the Irrigation Department were merged in 1969 and petitioner thereafter continued as Assistant Engineer in the Irrigation Department. Petitioner was promoted to the post of Executive Engineer on ad hoc basis in February, 1976 alongwith several other persons including some of his juniors. On 9.9.1981 the petitioner was suspended on certain charges and while the petitioner was under suspension in 1984 his juniors were confirmed as Executive Engineers with effect from dates they were promoted as Executive Engineer on ad hoc basis in the year 1976. On 9.9.1981 the petitioner was suspended on certain charges and while the petitioner was under suspension in 1984 his juniors were confirmed as Executive Engineers with effect from dates they were promoted as Executive Engineer on ad hoc basis in the year 1976. Petitioner was released from suspension on 21-9-1985 and was posted as Executive Engineer at Hajipur on ad hoc basis on 9-10-1986. Petitioner had challenged the departmental enquiry pending against him through a writ petition being C.W.J.C. No. 5877/87 which was allowed by a Division Bench of this Court on 6-5-1988 and the proceeding pending against the petitioner was quashed. Petitioners grievances is that on account of the proceeding which was ultimately quashed by this court, he was not confirmed to the post of Executive Engineer from the date his juniors were confirmed and similarly he was denied consideration for promotion to the post of Superintending Engineer while his admitted junior one Phanindra Nath was so promoted in November, 1986. Petitioner filed a representation dated 11-5-1988 claiming promotions and consequential benefits but no relief was given- to him and he retired from service on 31-7-1988. Thereafter he filed the writ petition being C.W.J.C. No. 9218/89 and the second writ application being C.W.J.C. No. 5581/95 as noticed above. 4. So far as claim of the petitioner for promotion to the post of Executive Engineer is concerned, the relevant facts are not in dispute and relying upon counter affidavit of respondents in C.W.J.C. 5581/95 it was submitted on behalf of the petitioner that the respondents have admitted that petitioners promotion to the post of Executive Engineer has been cleared by the Bihar Public Service Commission but no order has been issued as yet. The said counter-affidavit was prepared and sworn in September, 1995 but till date the order of petitioners promotion or confirmation to the post of Executive Engineer has not been issued so far. In the facts of the case the respondents have clearly acted arbitrarily in not issuing the order of petitioners promotion/confirmation to the post of Executive Engineer. Once the proceeding against the petitioner was quashed by this court, the respondents who had withheld petitioners confirmation to the post of Executive Engineer on that ground ought to have issued an order of promotion/confirmation immediately after the petitioner had made a representation for the same. Once the proceeding against the petitioner was quashed by this court, the respondents who had withheld petitioners confirmation to the post of Executive Engineer on that ground ought to have issued an order of promotion/confirmation immediately after the petitioner had made a representation for the same. In that view of the matter first relief sought by the petitioner has to be allowed and accordingly the respondents are directed to issue necessary order with regard to promotion/confirmation of the petitioner to the post of Executive Engineer with effect from the date his junior were so promoted/confirmed, within period of three months from the date of production/communication of a copy ot this order before the concerned authority. 5. With regard to petitioners claim for promotion to the post of Superintend-ing Engineer, no doubt it is not in dispute that his junior was so promoted in November, 1986 but learned counsel for the State relied upon the counter affidavit to submit that petitioners case for promotion to the post of Superintending Engineer could not have been considered because at that time he was not confirmed or regularly promoted to the post of Executive Engineer. No doubt the aforesaid defence is correct but petitioner has now been held entitled to promotion to the post of Executive Engineer hence a direction has to be issued to the concerned authority to also consider petitioners case for promotion to the post of Superintending Engineer with effect from the date his juniors were so promoted. Such a consideration must be fairly done in accordance with law on the basis of all the relevant materials that may be available on record till the relevant date with effect from which petitioners case has to be considered. Such consideration should be done within a period of six months from the date of production/communication of a copy of this order before the concerned authority. It goes without saying that the petitioner will be entitled for the salary of the higher post with effect from dates he may be promoted to such higher post and the difference of the salary due should be paid to the petitioner within a further period of two months from the date of relevant orders for promotion. It goes without saying that the petitioner will be entitled for the salary of the higher post with effect from dates he may be promoted to such higher post and the difference of the salary due should be paid to the petitioner within a further period of two months from the date of relevant orders for promotion. As a consequence the retiral benefit of the petitioner should also be recalculated and dues on that account should be paid within a further period of four months from the date a final decision is taken with regard to claim of the petitioner for appointment to the post of Superintending Engineer. 6. The only relief claimed by the petitioner which remains to be considered relates to the order dated 22-11-1990 (Annexure-A) to the counter affidavit in C.W.J. C. No. 9218/89 as a consequence whereof order dated 11-7-95 (annexure-1 to C.W.J.C.No. 5581/95) was issued. 7. On behalf of petitioner the impugned order dated 22-11-90 was challenged on the ground that the order is ultra vires of rule 43(b) of the Bihar Pension Rules, specially sub-clause (3) of proviso (a) to the said rule. According to learned counsel for the petitioner as Per the aforesaid provision in the Bihar pension Rules (hereinafter referred to as the Rules) the State Government can withhold a pension or any part of it only if the pensionary 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. According to the learned counsel for the petitioner the earlier departmental proceeding against the petitioner was quashed by this Court and subsequently no departmental proceeding was ever initiated against the petitioner nor there is any finding in any judicial proceeding against the petitioner. It was further submitted on behalf of the petitioner that as per proviso (a) (iii) to Rule 43(b) of the Rules, such departmental proceeding, if any, is required to be conducted by such authority and such place or places as State Government may direct and it has to be conducted in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. According to him since the writ petitioner was a Class-I Officer the appropriate procedure for any departmental proceeding in terms of Rule 43(b) of the Rules had to be in accordance with procedure prescribed in rule 55 of Civil Services (Classification, Control and Appeal) Rules which provides for a detailed enquiry with option for oral hearing after furnishing of charges alongwith the statements of the allegation on which charges are based. 8. On behalf of the State more particularly in C.W.J.C. No. 5581/95, it was submitted that action under the rules for deduction of petitioners pension was taken not on the basis of charges and the proceeding which were quashed by this Court but on the basis of subsequent charges relating to the year 1987-88 and 88-89 when the petitioner was posted as Executive Engineer at Hajipur. According to learned counsel for the State when the irregularities committed by the petitioner at Hajipur came to the notice of the Superintending Engineer as well as Chief Engineer, letters were given to the petitioner asking for his explanation. The explanation given by the petitioner was not found sufficient and therefore a proceeding against the petitioner was under contemplation but the petitioner retired in the mean time. Thereafter a decision was taken to take action in accordance with law for making deduction from the pension of the petitioner. For this purpose, according to learned counsel for the State, a notice dated 2-5-1990 was sent to the petitioners home address because his actual or temporary address was not known to the department till date. The said notice dated 2-5-90 is annexure- J to the counter affidavit in C.W.J.C.No. 9218/89 and is also annexure-E to the counter affidavit in C.WJ.C.No. 5581/95. According to the learned counsel for the State the said notice, as appears from notice itself was sent by registered post with A/D and therefore, it must be presumed that the same was served upon the petitioner. It was further contended on behalf of the state that since petitioner did not give any reply to the notice dated 2.5.90 within the period of two weeks fixed in the notice hence it was deemed that the petitioner has accepted the allegations and thereafter the impugned order dated 22-11-90 was passed whereby 50% of petitioners pension was deducted in exercise of power under Rule 43 of the Rules. 9. 9. Deduction of pension is penalty which has grave implication for a retired employee. The procedure for awarding such a penalty has been therefore prescribed with care in the rules itself, under the service rules such as Rule 55-A of the Bihar Civil Services (Classification, Control and Appeal) Rules, a minor punishment may be awarded by serving only a show cause notice upon the concerned employee but in contrast, for a major punishment like removal, dismissal etc. a detailed enquiry is contemplated by Rule 55 and the proviso to Rule 43 (b) makes it clear that the required departmental enquiry for the purpose of the rules must be conducted in accordance with the procedure prescrived for proceedings in which an order of dismissal from service may be made. To appreciate the stand of the respondents on this aspect I have looked into the relevant record of the department and from that also it is clear that the concerned authority never intended to hold a departmental enquiry against the petitioner and therefore in the notice dated 2-5-90 a reference was given to rule 139 of the Rules which according to respondents did not require any detailed enquiry. The impugned order dated 22.11.90 (annexure-A to the counter affidavit), however, shows that action against the petitioner has been taken under section 43(b) of the Rules. 10. The moot questions falling for determination on this issue are : (i) whether petitioner was given any notice of the proposed proceeding or not, and (ii) If he was given such notice then whether giving of such notice alone is sufficient for awarding the penalty of deduction from pension or were the respondents required to hold a detailed departmental proceeding as per procedure laid down in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. 11. On behalf of petitioner it has been submitted that petitioner was never served with the alleged notice dated 2.5.90 which was sent by the respondents at the petitioners home address. For this purpose petitioner has placed reliance upon two letters written by the petitioner to the departmental authority dated 10.4.90 and 14.7.90 (annexures 6 and 7 respectively in C.W.J.C. No. 5581/95). Annexure-6 shows that petitioner had mentioned his actual address at Patna in the said letter. The subsequent letter dated 14.7.90 also contains petitioners address at Patna and it also contains a reference to his earlier letter dated 10.4.90. Annexure-6 shows that petitioner had mentioned his actual address at Patna in the said letter. The subsequent letter dated 14.7.90 also contains petitioners address at Patna and it also contains a reference to his earlier letter dated 10.4.90. In such circumstances, in all fairness, the respondents should have sent the notice dated 2-5-90 to the petitioners address at Patna and if for some reason the notice could not have been served on that address then they should have resorted to newspapers publication as they appeared to have done in the past when the matter was at the stage of preliminary enquiry before the departmental authority. Even if annexure-J was sent through registered post the only presumption would be that it reached the address at which it was sent and only on that basis it is not possible to presume that the notice was actually served upon the petitioner when the petitioner has denied such allegation and as discussed above his actual address was different and he had already intimated his actual address to the concerned authorities. In the aforesaid circumstances, in my view, no notice was served upon the petitioner before passing the impugned order contained in annexure-A. In view of this finding the impugned order contained in annexure-A to the counter affidavit in C.WJ.C.No. 9218/89 and the consequential order contained in annexure-1 in C.W.J.C. No. 5581/95 have to be declared as illegal being in violation of the procedure prescribed under the rules as well as in violation of principle of Natural Justice. For the aforesaid reasons, the impugned orders mentioned above are hereby quashed. 12. No discussion or finding is required to be given with regard to the second issue as to whether the impugned action would have been taken without resorting to a detailed departmental proceeding or not, in view of the fact that this writ application on this aspect has to succeed on the first issue itself. 13. As a result of quashing of impugned orders contained in annexure-A and annexure-1 to the writ application respectively the amount of 50% pension deducted from petitioners pension alongwith arrears on account of revision of pension on account of promotion should be given to the petitioner within the period fixed earlier for payment of consequential benefits arising out of promotion in favour of petitioner. On behalf of petitioner it has been submitted that the petitioner is entitled for revised higher leave encashment and revised provident fund dues. All such amounts if found due in accordance with law should also be paid to the petitioner within the time prescribed. Both the writ applications are accordingly allowed in the manner indicated above. In the facts of the case there shall be no order as to costs.