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2001 DIGILAW 398 (PAT)

Besh Lal Singh v. State Of Bihar

2001-05-01

R.M.PRASAD

body2001
Judgment R.M.Prasad, J. 1. The petitioner, a retired A.D.M. Government of Bihar, has prayed for quashing of the inquiry report dated 15-11-1995 (Annexure 3) and also the consequential order, contained in letter No. 2/C 3-30185/92 P. dated 8th July, 1999 (Annexure 12), purported to have been issued in exercise of the power under Rule 139 (b), of the Bihar Pension Rules (hereinafter referred to as the Rules) deducting a sum of Rs. 1, 71, 296.75 from his retirement benefits to make good the alleged loss of Government revenue as also to fix his pension after deducting 10% for the alleged unsatisfactory service solely based on the report of the Commissioner, Departmental Inquiry, Bihar, Patna and, further, has sought for a mandamus directing the respondents to pay all post-retirement benefits, including full pension, full salary for the suspension period with effect from 26-10-1992 to 7-5-1993 and also to grant him promotion to the post of Joint Secretary, which was kept in sealed cover on account of pendency of the departmental inquiry, with full salary. 2. In short, the relevant facts are that the petitioner was posted as District Transport Officer, Purnea from 21-4-1986 to 6-3-1990. In August 1991, audit of the said office was done for the period 1979-80 to 1990-91 when the petitioner had already been relieved on 6-3-1990 for proceeding on transfer. It is alleged that the Transport Commissioner, Bihar, on the basis of the audit report No. 1053 of 1990-91, fixed entire responsibility on the petitioner only, although the objection raised in the audit report relates to the period of his predecessor and successor as well. The petitioner was placed under suspension on 26-10-1992, vide Memo No. 11721 of the Personnel & Administrative Reforms Department (Annexure C to the counter-affidavit filed on behalf of respondent No. 2). A departmental proceeding was initiated against him, vide Memo No. 2633 dated 16th March, 1993 (Annexure D to the counter-affidavit filed on behalf of respondent No. 2). The said order of suspension was revoked, vide order dated 7th May, 1993 (Annexure 4 to the earlier writ petition bearing C.W.J.C. No. 11636 of 1997 filed on behalf of the petitioner), but the departmental proceeding was continued. The said departmental proceeding was conducted by the Commissioner, Departmental Inquiries, Bihar, Patna, who submitted his report on 15th November, 1995 (Annexure 3). The said departmental proceeding was conducted by the Commissioner, Departmental Inquiries, Bihar, Patna, who submitted his report on 15th November, 1995 (Annexure 3). Thereafter, the petitioner retired as Additional District Magistrate on 31st August, 1996 and when he was not paid his retrial dues he filed the said earlier writ petition in this Court for direction to pay his pensionary dues. It the said petition, a counter-affidavit was filed in which it was stated that the departmental proceeding was initiated while the petitioner was in service and ultimately, he was found guilty of the charges and thus not entitled to the pensionary benefits. 3. From the order dated 8-12-1998 passed by this Court in the said earlier writ petition, contained in Annexure 1, it appears that the petitioner challenged the validity of the departmental proceeding on the ground that the copy of the inquiry report had not been erved upon him and, as such, any order passed by the disciplinary authority cannot be sustained in the eye of law. This Court, on perusal of the record produced, did not find that the finding recorded by the inquiry officer was served and thus found substance in the submission advanced on behalf of the petitioner. Accordingly, the Court directed the disciplinary authority to serve a copy of the inquiry report on the petitioner and the petitioner was given liberty to file his show cause before the disciplinary authority, who was directed to consider the same and pass appropriate order in accordance with law within six weeks. The writ application was, accordingly, disposed of. 4. In pursuance of the said direction, the petitioner was supplied with the photo copy of the inquiry report, vide letter dated 15th December, 1998, contained in Annexure 3, which also is part of Annexure 3. In the meanwhile, the petitioner was served with a show, cause notice, vide letter No. 2/C3-30185/92 P. 10965 dated 12th October, 1998 (Annexure-4) much after his retirement on 31st August, 1996. In answer to that, the petitioner, vide letter dated 14-11-1998 (Annexure 5), wrote that since the aforementioned writ petition was pending in this Court, submission of the show cause would not be justified. However, later in pursuance of the aforementioned direction of this Court, the petitioner submitted his show cause in response to the aformentioned notice dated 15th December, 1998 (Annexure 3), a photo copy whereof has been annexed as Annexure 6. However, later in pursuance of the aforementioned direction of this Court, the petitioner submitted his show cause in response to the aformentioned notice dated 15th December, 1998 (Annexure 3), a photo copy whereof has been annexed as Annexure 6. 5. The State Government, having found that the inquiry officer has found the charges No. 1, 2, 4, 5, 7 and 8 as proved against the petitioner, requested the Accountant-General for recovery of Rs. 1,71,296.75 on account of loss of revenue of the State, vide order dated 23rd February, 1999, contained in Annexure 7, and further, directed for giving notice to the petitioner under Rule 139 (b) of the Rules for deduction of 10% from his pension. Thereafter, on account of said charges having been found proved by the inquiry officer, a show-cause notice purporting to be under Rule 139 (b), vide letter No. 1669 dated 22nd February, 1999, contained in Annexure 8, was given to the petitioner. The petitioner submitted his representation as against the recovery on 11-3-1999, vide Annexure 9 and also submitted show cause on the same day, vide Annexure 10, in response to the said notice under Rule 139 (b) of the Rules. The State Government, vide impugned order dated 8th July, 1999 (Annexure 12), directed, for deduction of 10% from the pension of the petitioner. 6. According to the case of the petitioner, there is no charge of any embezzlement of Government money against him, rather there is allegation of loss of Government revenue based on misinterpretation of relevant sections of the Bihar and Orissa Motor Vehicles Taxation Act, 1930, on account of which he has been found responsible for the same, although there is no loss at all. 7. A counter-affidavit has been filed on behalf of the respondent No. 2 in which it is stated that the order passed by the Government is neither whimsical nor arbitrary or illegal. The impugned action has been taken according to the established rules, norms and procedure. The allegations were based on audit report and related to omissions and commissions of the petitioner leading to loss of revenue to the State, for which the petitioner was suspended, vide Annexure C and later memo of charges was also sent, vide Memo No. 2633 dated 16-3-1993 (Annexure D) with a direction to submit his written statement in his defence. The Commissioner, Departmental Inquiry held the inquiry and submitted his report. The Commissioner, Departmental Inquiry held the inquiry and submitted his report. It is thus submitted that there is no infirmity in passing the impugned order on the basis of the inquiry report submitted in the proceeding initiated before the retirement of the petitioner. 8. It is submitted by the learned Counsel for the petitioner that the Departmental Inquiry Commissioner in his inquiry report although stressed on the duty of the disciplinary authority to produce all material documents which was lightly taken and not supplied, yet he on so-called administrative reason did not consider proper to linger the proceeding by allowing more time and proceeded to submit his inquiry report even in the absence of relevant paper/record which itself is sufficient to vitiate the entire inquiry report as well as the consequential action/orders of the disciplinary authority. It is submitted that the petitioner was also not supplied with the relevant documents and was denied of the opportunity to examine the witnesses, for which he had made request in writing which amounted to clear violation of the norms and principles of adjudicating a quasi judicial proceeding. It is thus submitted that from the inquiry report, contained in Annexure 3 itself, it would appear that the inquiry officer was in hurry to conclude the inquiry even in the absence of relevant paper/ record and denying reasonable opportunity to the petitioner, which amounted to gross violation of the principles of natural justice. It is also submitted on behalf of the petitioner that the entire action is wholly without jurisdiction and ultra vires Rules 43 and 139 (b) of the Rules. 9. Mr. Ghose, learned Additional Advocate-General No. II has not been able to defend the inquiry report, from perusal where of itself it appears that the Transport Department had not produced any relevant papers/record, yet the inquiry officer, on so-called administrative reason, did not consider proper to linger the proceeding by granting more time and proceeded to submit his inquiry report even in the absence of relevant paper, which itself is sufficient to vitiate the entire inquiry report as well as the consequential action/orders of the disciplinary authority. This Court thus finds force in the submission of the learned Counsel for the petitioner that perusal of the inquiry report itself shows that the Commissioner of Inquiry was in hurry to conclude the inquiry and illegally proceeded to submit his inquiry report against the petitioner, though the Transport Department failed to produce the relevant documentary evidence on record. In my opinion, such action of the Commissioner of Inquiry clearly amounted to denial of reasonable opportunity to the petitioner to defend in the proceeding. 10. Learned Counsel for the petitioner on the question of power of the State Government in invoking the provisions contained in Rules 43 and 139 of the Rules submitted that the show-cause notice issued in purported exercise of the power under Rule 139 after retirement relating to the alleged misconduct of four years prior to his retirement, which was the subject-matter of the departmental proceeding which did not conclude by passing final order before the retirement of the petitioner was wholly misconceived and incompetent in view of the law settled by the State Government in the case of State of Bihar V/s. Md. Idris Ansari, 1995(2) PLJR (S.C.) 51. It is submitted that in the said case, it was held that the exercise of such power has to be with Rule 43(b) of the Rules and such notice, therefore, could cover any misconduct only if committed within four years before the retirement of a Government servant. In the said case, the notice under Rule 139 was issued on 27-9-1993 for the alleged misconduct committed much before 26-9-1993. The apex Court in the said circumstances held that such notice could cover any misconduct only if committed within four years prior to its issuance on 27-9-1993, meaning thereby it should have been committed during the period from 26-9-1989 up to 31-1-1993 when the respondent had retired. It is thus submitted that as the misconduct is alleged to have been committed during the posting of the petitioner as District Transport Officer, Purnea from 1-4-1986 to 6-3-1990, on the basis of the audit report No. 1053 of the year 1990-91, there cannot be escape from the conclusion that it related to the period much prior to four years from the date on which the show-cause notice dated 22nd February, 1999 (Annexure 8) was issued, and that too much after his retirement. According to the learned Counsel for the petitioner, power under Rule 139(b) of the Rules can only be exercised where the service of a Government servant is not thoroughly satisfactory and not merely because some findings are recorded, against him in the inquiry by the inquiry officer on which the disciplinary authority is yet to take final decision and in the meanwhile, the Government servant retired. It is also submitted that apart from the question whether such proceeding which remained inconclusive on account of non-passing 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, the State Government was not within the power to invoke the provisions contained in Rule 139(b) in pursuance of the findings recorded by the inquiry officer on which the disciplinary authority was yet to apply his mind and pass final order holding the petitioner guilty of alleged misconduct. The reasons mentioned in the impugned order for purported exercise of power under Rule 139(b) of the Rules is not that the services of the petitioner is not thoroughly satisfactory. It is solely based on the findings recorded by the inquiry officer in the inquiry on which the competent authority was yet to take decision and, in the meantime, the petitioner superannuated and the inquiry report remained unattended. It is thus contended that in the facts and circumstances, the State Government had no power to invoke the provisions, contained in Rules 139 (a) and (b) against the petitioner on the ground of such misconduct and consequently, the action purported to be under Rule 139 is wholly without the sanction of law. 11. Mr. Ghose, learned Additional Advocate-General No. II appearing for the State, on the other hand, has contended that in view of the law settled by a Full Bench decision of this Court in the case of Shambhu Saran V/s. State of Bihar and Ors. 2000(1) PLJR 665 , there is no infirmity in passing the impugned order on the basis of the inquiry report submitted in the proceeding initiated before the retirement of the petitioner. 2000(1) PLJR 665 , there is no infirmity in passing the impugned order on the basis of the inquiry report submitted in the proceeding initiated before the retirement of the petitioner. Once the inquiry report has already been submitted much before the retirement of the petitioner and charges against him 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) of the Rules. 12. This Court does not find force in the said submission of the learned Additional Advocate-General. In my opinion, such notice (Annexure 8) and the action taken in pursuance thereof are wholly misconceived and incompetent, especially when the alleged misconduct was even beyond the scope of Rule 43(b) as it relates to the period beyond four years before the retirement of the petitioner. According to the apex Court, in the case of State of Bihar V/s. Md. Idris Ansarl (supra), if in such proceeding a person was found guilty of misconduct, he could have been properly proceeded against under Rule 139 (a) and (b). The facts of the present case clearly demonstrate that the notice (Annexure 8) invoking power under Rule 139(b) was issued solely on the basis of past misconduct during the period 1979-80 to 1990-91, which was the subject-Tiatter of the departmental proceeding initiated against him but not finalised before his retirement and not that it is based on the ground that the service record of the petitioner is not thoroughly satisfactory. In the said circumstances, the apex Court on a conjoint reading of Rule 43(b) and Rule 139 (a) of the Rules held that there is 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 Rule 139 (a) and (b) against the said respondent on the ground of proved misconduct and consequently held that the proceeding under Rule 139 was wholly incompetent. Further, the apex Court did not find any question of remanding the proceedings under Rule 139 (a) and (b) as it could not survive as the alleged grave misconduct could not be established in any departmental proceeding after expiry of four years and such proceeding 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. 13. Learned Counsel for the petitioner has thus rightly submitted that in the circumstances aforementioned, there cannot be any valid justification to deny full salary of the petitioner for the suspension period i.e. 26-10-1992 to 7-5-1993 and also promotion to the post of Joint Secretary, which was kept in sealed cover on account of pendency of the departmental inquiry, with full consequential benefits. Once the departmental proceeding became incompetent and the petitioner stood fully exonerated under Sub-rule (2) of Rule 97 of the Bihar Service Code, he is entitled to get full pay and allowances to which he would have been entitled had he not been suspended. Thus, there cannot be any legal justification to deny him the salary for the period of suspension as well as his due promotion to the post of Joint Secretary if it was kept in sealed cover on account of pendency of the departmental proceeding, with full consequential benefits. 14. Accordingly, the writ application is allowed. The impugned orders, contained in Annexures 3, 7, 8 and 12, are quashed. The respondents are, accordingly, directed to issue necessary order for payment of full salary to the petitioner for the period of suspension, i.e. 26-10-1992 to 7-5-1993 and to consider his case for promotion to the post of Joint Secretary if the same was kept in sealed cover on account of pendency of the departmental proceeding, with all consequential benefits, including financial benefits. The respondents are further directed to release his remaining pensionary benefits within four weeks of the receipt/production of a copy of this judgment/order, failing which the authority concerned shall not draw his salary and other allowances till the order is complied and shall also be liable to pay a cost of Rs. 1,000.00 (one thousand) to the petitioner from his own pocket.