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2001 DIGILAW 339 (PAT)

Ram Punit Kumar v. State Of Bihar

2001-04-13

RADHA MOHAN PRASAD

body2001
Judgment 1. In this writ petition, petitioner is ag- grived by the order contained in letter no. 3294 dated 27th March, 1998 of the Personnel and Administrative Reforms Department, Government of Bihar (Annexure-8), whereby and whereunder the State Government in purported exercise of the power under Rule 139(b) of the Bihar Pension Rules has directed for deduction of 30% from the pension payable to him besides that he shal! not be entitled for any payment other than subsistence allowance paid to him during the period of suspension i.e. 21.8.1980 to 17.9.1982. However, the said period of suspension has been counted for the purpose of computation of pension. 2. In short, the relevant facts are that the petitioner belongs to Bihar Administrative service and it is alleged that during his posting as Sub-divisional Officer, Saraikela, Singhbhum, which was then in the State of Bihar, he encouraged illegal trade in coal, worked against the Government instruction, suppressed facts and did not discharge his duty properly, for which he was placed under suspension vide order no. 11461 dated 21.8.1980. However, his suspension was revoked vide office order no. 10467 dated 17.9.1982, but departmental proceeding was continued against him. On 5.6.1990 the Departmental Commissioner for enquiry, Bihar, Patna was appointed as En- quiry Officer, who submitted his report vide letter no. 13/C.D.E. dated 21.1.1992. The petitioner, thereafter was given opportunity to defend against the said report, and the entire papers were sent to the Commercial Department of Government of Bihar, on consideration of which report was submitted by the said Department. However, in the meanwhile, petitioner superannuated from service on 31.12.1994 whereafter the impugned order has been passed in purported exercise of the power under Rule 139(b) of the Bihar Pension Rules. 3. According to the case of the petitioner the charges relate to the period 30th October, 1978 to Ist April, 1980. According to him the findings recorded by the Enquiry Officer in his report, contained in Annexure-5 only show that there has been certain procedural lapses on the part of the petitioner, but the substantial charges have been found not to be proved. In the whole enquiry report it has not been found that the petitioner has caused any pecuniary loss to the State Government. Learned counsel for the petitioner has, thus, submitted that according to the decision of the Apex Court in the case of State of Bihar V/s. Md. In the whole enquiry report it has not been found that the petitioner has caused any pecuniary loss to the State Government. Learned counsel for the petitioner has, thus, submitted that according to the decision of the Apex Court in the case of State of Bihar V/s. Md. Idris Ansari, reported in 1995(2) PLJR (S.C.) 51 (paras 8 & 9) a conjoint reading of Rule 43(b) and Rule 139 of the Bihar Pension Rules projects that a retired Government servant can be proceeded against under Rufe 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that his service record was not thoroughly satisfactory, and even if the service record of the concerned Officer is found to be thoroughly satisfactory by the sanctioning authority and the State Government finds it to be not thoroughly satisfactory or that there is proof of grave misconduct 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 three years from the order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond the said period. So far as the second type of case is concerned the proof of grave misconduct during his service tenure will have to be culled out by the revisional authority in the departmental proceeding or judicial proceeding which might have taken place during his service tenure or in the departmental proceedings which may be initiated even after retirement in such type of cases. According to the Apex Court, such departmental proceedings will have to be complied with the requirement of Rule 43(b). Consequently, a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceeding conducted against him even after his retirement, but such proceedings conducted against him even after his retirement could be initiated in connection with only such misconduct which might have taken place within four years of initiation of such departmental proceeding against him. According to the learned counsel for the petitioner, in the present case, the departmental proceeding initiated during service of the petitioner was not concluded by passing final order, and, thus, the show cause notice issued in purported exercise of the power under Rule 139(b), contained in Annexure-6 relating to the alleged misconduct during the period 30.10.1978 to 1.4.1980 involved in the said departmental proceeding and not on the ground that the service record of the petitioner was not thoroughly satisfactory, was wholly misconceived and incompetent. It was submitted that according to the decision of the Apex Court in the case of State of Bihar vs. Md. Idris Ansari (supra) exercise of such power has to be with Rule 43(b) and said notice, therefore, can cover any misconduct only if committed within four years prior to its issuance on 16th August, 1996. Meaning thereby it should have been committed during the period from 15th August, 1992 up to 31.12.1994 when the petitioner retired. It is, thus submitted that there is no escape from the conclusion that the alleged misconduct was committed by the petitioner prior to four years from the date on which show cause dated 26th August, 1996 (Annexure-6) was issued. Accordingly, the State Government had no power to invoke the provisions contained in Rules 139(a) & (b) against the petitioner on the ground of such misconduct and consequently, the action purported to be under Rule 139 is wholly without sanction of law. 4. On the other hand, learned counsel for the State has submitted that once the enquiry report had already been submitted much before the retirement of the petitioner and the charges against the petitioner have been found proved, the commission of grave misconduct by the petitioner stands proved and the exercise of power by the State Government in passing impugned order is well within the provisions contained in Rule 139(b). 5. This Court is unable to accept the said submission of the learned counsel for the State. Rule 139(b) provides that if the service has not been thoroughly satisfactory, the authority sanctioning pension should make such reduction in the amount as it thinks proper. 5. This Court is unable to accept the said submission of the learned counsel for the State. Rule 139(b) provides that if the service has not been thoroughly satisfactory, the authority sanctioning pension should make such reduction in the amount as it thinks proper. Thus, it is evident that the provisions contained in Rule 139 can be invoked only where the service of a Government servant has not been thoroughly satisfactory and not merely because of some findings against him recorded in the enquiry by the Enquiry Officer on which the competent authority was yet to take final decision and Government servant retired before any such decision of the competent authority. Apart from the question as to whether such proceeding which remained inconclusive on account of nonpassing of the final order before the Government servant retired could continue or not or that a fresh order in terms of Rule 43(b) in such cases is warranted, this Court finds it difficult to accept the contention on behalf of the State that the State Government was well within the power to invoke the provisions contained in Rule 139(b) in pursuance to the findings recorded by the Enquiry Officer on which the competent authority was yet to apply 3 his mind and to hold the petitioner guilty of alleged misconduct. The reasons mentioned in the impugned order for purported exercise of the power under Rule 139(b) is not that the services of the petitioner has not been thoroughly satisfactory. It is solely based on the findings recorded by the Enquiry Officer on enquiry on which the competent authority was yet to take decision and in the meantime petitioner superannuated and the enquiry report remained unattended. Therefore, in my opinion, such notice (Annexure-6) and the action taken in pursuance thereof are wholly misconceived and without jurisdiction specially when the alleged misconduct was even beyond the scope of Rule 43(b) as it relates to the period beyond four years. According to the decision of the Apex Court in the case of State of Bihar vs. Md. Idris Ansari (supra) only in such a proceeding if the petitioner is found guilty of misconduct he could have been appropriately proceeded against under Rules 139(a) & (b). According to the decision of the Apex Court in the case of State of Bihar vs. Md. Idris Ansari (supra) only in such a proceeding if the petitioner is found guilty of misconduct he could have been appropriately proceeded against under Rules 139(a) & (b). The facts of the present case clearly demonstrate that the notice (Annexure-6) invoking powers under Rule 139(b) was issued solely on the ground of alleged past misconduct during the period 30.10.1978 to 1.4.1980, which was the subject matter of the departmental proceedings initiated against the petitioner but not that it was based on the ground that service record of the petitioner was not thoroughly satisfactory. Under such circumstances, the Apex Court on a conjoint reading of Rule 43(b) and Rule 139(a) held that there was no escape from the conclusion that as the alleged misconduct was committed by the Respondent in the said case prior to four years from the date on which show cause notice dated 27.9.1993 was issued, the State had no power to invoke Rules 139(a) and (b) against the said Respondent on the ground of proved misconduct, and consequently, held that the proceedings under Rule 139 were wholly incompetent. Further the Apex Court did not find any question of remanding the proceedings under Rules 139(a) and (b) as it could not survive as the alleged grave misconduct could not be established in any departmental proceedings after expiry of four years and such proceedings would be clearly barred by Rule 43(b) proviso (a) (ii), and treated the show cause notice itself as stubborn and ineffective from its inception. 6. Learned counsel for the petitioner also contended that the later part of the impugned order whereby the State Government has directed that the petitioner shall not be entitled for any payment other than what has been paid as subsistence allowance during the period of suspension is also bad in law, as no such power is vested either under Rule 43 or Rule 139 of the Bihar Pension Rules. According to him, exercise of such power is permissible only under Rule 97 of the Bihar Service Code by the competent authority who is vested with the power to consider and make specific order regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty and whether or not the said period shall be treated as a period spent on duty, when a Government servant, who has been dismissed, removed or suspended is reinstated. It is a case where the petitioner was reinstated after revoking the order of suspension long back on 17.9.1982 vide Annexure-3, but no such order was passed and under sub-rule (2) of Rule 97 the Government servant is entitled to get full pay and allowances to which he would have been entitled during the period of suspension, in case suspension is revoked. 7. On the other hand, learned counsel for the State submitted that there is no infirmity in that part of the impugned order whereby the Government has directed that the petitioner shall not be entitled for any payment except the subsistence allowance during the period of suspension. It is submitted that under sub-rule (2) of Rule 97 the Government servant shall be entitled to full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be only on his being fully exonerated, or in the case of suspension on the opinion that it was wholly unjustified and not otherwise. In the present case, the very order of revocation of suspension (Annexure-3) clearly stipulated that the order as to how the period of suspension can be treated under Rule 97 of the Bihar Service Code shall be passed later. Undisputedly, the petitioner has not been fully exonerated nor his suspension has been found to be wholly unjustified. As such, according to the learned State Counsel there is no infirmity in the aforementioned later part of the impugned order. 8. This Court finds substance in the said submission of the learned counsel for the State. Undisputedly, the petitioner has not been fully exonerated nor his suspension has been found to be wholly unjustified. As such, according to the learned State Counsel there is no infirmity in the aforementioned later part of the impugned order. 8. This Court finds substance in the said submission of the learned counsel for the State. Under sub-rule (2) of Rule 97 of the Bihar Service Code, Government servant is entitled to be given full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be, where the authority competent to order reinstatement is of the opinion that the Government servant has been fully exonerated or in the case of suspension it was wholy unjustified and not otherwise. It is not in dispute that the petitioner has neither been fully exonerated nor the authority competent to order reinstatement has been of the opinion that the suspension was wholly unjustified. In fact, the order revoking the suspension with effect from the date of taking over of charge by the petitioner passed on 17.9.1982, contained in Annexure-3 itself indicated that the order as to how the period of suspension shall be treated under Rule 97 shall be passed later. Under such circumstances, this Court does not find any infirmity in the later part of the impugned order whereby the competent authority has directed that the petitioner shall not be entitled for any payment except the subsistence allowance for the period of suspension. 9. Writ application is, thus, partly allowed. The impugned order, contained in Annexure-8 insofar as it relates to reduction of 30% of pension of the petitioner is hereby quashed. The Respondents are directed to release the said remaining pension with arrears within two weeks of the receipt/production of a copy of this order. However, in the facts and circumstances, there shall be no order as to costs.