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2003 DIGILAW 1128 (PAT)

Ram Sewak Singh v. Bihar State Electricity Board

2003-11-03

body2003
ORDER The petitioner retired from the service of the Bihar State Electricity Board on 31.3.1998. At the time of retirement, he was holding the post of Store Assistant. After about a year and half he was allowed 90% pension by letter no. 278, dated 11.9.1999. His other retiral dues remained unpaid. In those circumstances he filed this writ petition on 21.12.1999, seeking a direction to the concerned authorities in the Board to make payment of his full pension and other retiral dues, e.g. gratuity, provident fund, leave encashment etc. 2. During the pendency of this case the petitioner was allowed encashment of un - utilised leave and was also paid his G.P.F. dues along with statutory interest. However, in regard to the balance 10% pension and gratuity, the Secretary of the Board issued an office order bearing no. 5811, dated 12.10.2002 (brought on record as Annexure - F to the supplementary counter affidavit). In this order, it was stated that in course of physical verification of the stocks at Sub - divisional Store, Gaya No. II and M.R.T. Division No.1, Gaya where the petitioner had been posted, materials were found missing worth Rs. 2,26,918.90 paise against certain excess materials of the value of Rs. 33,479.60 paise. Despite repeated directions, the petitioner had failed to account for this discrepancy during his service tenure and hence, the decision was taken to forfeit his 10% pension, gratuity etc in terms of rule 139 of the Bihar Pension Rules. Accordingly, a direction was given in this order to issue a show cause notice to the petitioner in this regard. 3. By order, dated 10.1.2003 this court asked the petitioner to file his show cause in pursuance of the order, dated 12.10.2000 and directed the Secretary of the Board to pass a final order after giving the petitioner an opportunity of hearing and considering the show cause submitted by him. 4. The Secretary of the Board finally passed an order, dated 24.5.2003 (Annexure - G to the second supplementary counter affidavit) in which direction was given for forfeiture of 1 % of the petitioner's pension and recovery of Rs. 1,29,365.45 paise from his gratuity as the pecuniary loss caused to the Board, resulting from the shortage of materials in the stock. 5. The final hearing of the case thus revolved around the order, dated 24.5.2003 passed by the Secretary of the Board. 1,29,365.45 paise from his gratuity as the pecuniary loss caused to the Board, resulting from the shortage of materials in the stock. 5. The final hearing of the case thus revolved around the order, dated 24.5.2003 passed by the Secretary of the Board. The counsel for the petitioner assailed the order as bad, illegal and untenable while Mr. R. K. Dutta, Addl. Standing Counsel for the Board defended the order and justified the decision of forfeiture of 1 % pension and recovery of the loss caused to the Board from the amount of gratuity payable to the petitioner. 6. But before proceeding to examine the validity of the decision and the rival contentions made in regard to the impugned order, it will be appropriate to take note of some material facts and circumstances. 7. The petitioner was appointed as Store Keeper on 31.1.1958. While he was posted in M.R.T. Sub - division, Gaya, he was put under suspension by office order no. 4338, dated 9.9.1975 (Annexure - 1) issued by the Engineer - in - Chief. The petitioner was suspended by that order for misappropriating store materials worth Rs. 75.051.40 paise while those materials were being transferred to Central Store, Gaya and for his failure to explain the discrepancy despite repeated instructions by the Supdt. Engineer According to the petitioner, after considering his explanations the value of the missing materials was brought down to Rs. 22,051.44 paise and in the criminal case, in regard to the shortage of materials being Chandauti P.S.Case No. 16(9)1976 instituted against him under section 409, 465 and 466 of the Penal Code, the value of the missing materials was stated as Rs. 22,051.44 paise. 8. Later on, even while the criminal case was pending, he was released from suspension by order no. 4475 issued by the Chief Engineer (S & P) under his memo no.1354, dated 11.10.1980 (Annexure 2). In that order, it was stated that the petitioner's suspension was being vacated with immediate effect, "without prejudice to departmental proceeding pending against him." 9. In the criminal case the petitioner was acquitted by judgment and order, dated 11.11.1986 passed by the Judicial Magistrate, 1st Class, Gaya in G.R. Case No. 2099/1976/ TR No. 1984/1986. In that order, it was stated that the petitioner's suspension was being vacated with immediate effect, "without prejudice to departmental proceeding pending against him." 9. In the criminal case the petitioner was acquitted by judgment and order, dated 11.11.1986 passed by the Judicial Magistrate, 1st Class, Gaya in G.R. Case No. 2099/1976/ TR No. 1984/1986. A copy of the judgment in the criminal trial is at Annexure 3 from which it appears that the petitioner's acquittal was for the simple reason that no witness was examined and no evidence at all was produced by the prosecution in support of the charge. It is, thus, evident that though the petitioner's guilt and culpability remained un - decided, someone else in the Board, incharge of the case utterly failed in the discharge of his responsibilities and caused no less harm and damage to the Board than the petitioner. 10. Equally surprising is the fact that on those charges no departmental proceeding was ever held against the petitioner. It is noted above that in the order releasing him from suspension it was expressely stated, that the revocation of suspension was without prejudice to the departmental proceeding pending against him. But after his acquittal in the criminal case in November, 1986, no steps were taken to initiate a departmental proceeding by giving him any charge sheet and holding a proceeding on that basis. The petitioner was, thus, allowed to continue in service and to retire on 31.3.1998 and the concerned authorities in the Board seem to have woken - up in regard to the missing materials in the Board's stores only when the time came for the settlement of his retiral dues. It was then only that another criminal case being Chandauti P.S. Case No. 10 of 2999, dated 14.9.2000 was instituted against the petitioner alleging that he had mis -appropriated materials valued at Rs. 2,24,918.90 paise. On the departmental side initially the office order, dated 12.10.2002 (Annexure - F) was issued and finally the order, dated 24.5.2003 was passed after giving the petitioner an opportunity of hearing as directed by this court. 11. Counsel for the petitioner submitted that under rule 139 of the Bihar Pension Rules, no recovery could be made from gratuity payable to a retired employee. 11. Counsel for the petitioner submitted that under rule 139 of the Bihar Pension Rules, no recovery could be made from gratuity payable to a retired employee. It was submitted that rule 139 was under Chapter VII dealing with amount of pension and the rule itself only dealt withy the pension admissible on retirement. There was no reference to gratuity. It was contended that an order for recovery of loss caused to the Board could only be passed under rule 43(b) but that was subject to the conditions and limitation as stipulated in the proviso to the rule. 12. To my mind, this submission is quite mis - conceived and it over - looks that pension, as defined under rule 27 includes a gratutity. I am, therefore, plainly of the view that an order for recovery of a certain amount from gratutity cannot be said to be bad simply on the ground that it was passed under rule 139 and not under rule 43(b) of the Pension Rules. 13. Counsel for the petitioner next submitted that the decision of forfeiture of 1 % pension and recovery of the alleged loss caused to the Board from the amount of gratuity payable to the petitioner was not based on any departmental proceeding and any order passed in such a proceeding. He submitted that the Board unilaterally and acting behind the back of the petitioner held him responsible for causing pecuniary loss to the Board resulting from the shortage in the stock and passed the order of recovery on that basis. He contended that the very premise that the petitioner was responsible for the missing materials and he had, thus, caused loss to the Board was unfounded and untenable because the premise was formed without holding any departmental proceeding and without giving the petitioner an opportunity to show cause. 14. In support of his submission, counsel for the petitioner relied upon a decision of the Supreme Court in State of Bihar and others Vs. Md. Idris Ansari, 1995 (2) PLJR (SC) 51 and two decisions of this court, one in Baliram Thakur Vs. Bihar State Electricity Board and Anr., 1995 (2) PLJR 609 and the other in Bajrang Deo Narain Sinha Vs. State of Bihar and others, 1999 (3) PLJR 949. 15. Md. Idris Ansari, 1995 (2) PLJR (SC) 51 and two decisions of this court, one in Baliram Thakur Vs. Bihar State Electricity Board and Anr., 1995 (2) PLJR 609 and the other in Bajrang Deo Narain Sinha Vs. State of Bihar and others, 1999 (3) PLJR 949. 15. He also submitted that the second criminal case instituted in September, 2000 still remained pending and, thus, the decision of the Board cannot be sustained even on the basis of any finding that might have been recorded in the criminal case. 16. Mr. R. K. Dutta, on the other hand, contended that the impugned order, dated 24.5.2003 was perfectly valid and the Secretary was quite justified in directing for the recovery of the amount of loss caused to the Board as a result of the mis - appropriation committed by the petitioner. Mr. Dutta strongly relied upon the provisions contained in para 10 of State Government resolution no. 3014, dated 31.7.1980. 17. I see hardly any need to go to the provisions of the State Government's resolution in question. The resolution as its title indicates was aimed at simplification of procedure for grant of pension, gratuity etc. and expeditious payment thereof and it appears debatable to me whether under the provisions of that resolution the Government would acquire any rights viz - a - viz the retired employee in addition to those already contained in the Bihar Pension Rules. In any event once the loss caused to the Government (or the Board in this case) is established, following a procedure known to law, and once the amount of the loss is quantified in accordance with the rules, there is ample power for the recovery of the amount of loss from the retiral dues of the concerned employee under rules 43 and 139 of the Pension Rules. 18. But the whole question in this case is whether the responsibility for the loss caused to the Board has been established against the petitioner following a process known to law and whether the amount of the loss has been quantified in a proper manner. It is noted above that the earlier criminal case instituted against the petitioner being Chandauti P.S. Case No. 16(9) 1976 ended in his acquittal. The more recent criminal case being Chandauti P.S. Case No. 10/2000, dated 14.9.2000 still remains pending. It is noted above that the earlier criminal case instituted against the petitioner being Chandauti P.S. Case No. 16(9) 1976 ended in his acquittal. The more recent criminal case being Chandauti P.S. Case No. 10/2000, dated 14.9.2000 still remains pending. It hardly needs to be stated that the institution of a criminal case does not amount to anything more than making allegations against the accused and the veracity and correctness of the allegations can only be established at the conclusion of the trial. In Baliram Thakur (supra) this court has already held that merely the pendency of the criminal case against the concerned employee without any departmental proceeding having been ever initiated in respect of the alleged misconduct, cannot justify withholding of retiral dues without passing specific orders. 19. It is also noted that no disciplinary proceeding was ever held against the petitioner in which the charge of mis - appropriation and causing loss to the Board could be established against him. In these circumstances the court wished to know from Mr. Dutta what was the basis for holding the petitioner guilty of misappropriating the materials from the stock and, thus, causing pecuniary loss to the Board. Mr. Dutta replied that the shortage of materials was discovered in the physical verification of the stocks; it was there for everyone to see and hence, the charge of committing mis - arropriation and causing loss to the Board was evident and established against the petitioner and in the facts and circumstances of the case the charge against the petitioner for being proved did not require any detailed and full - dressed disciplinary proceeding. 20. At the first glance the submission made by Mr. Dutta appeared quite attractive. But unfortunately for the Board the figures simply do not tally. It is noted above that in Chandauti P.S. Case No.10/2000 the value of the missing materials is stated as Rs. 2,24,918.90 paise. 21. In the order, dated 12.10.2002 by which the petitioner was given the notice under rule 139 it was observed that on physical verification of the stores there was a shortage of materials amounting to Rs. 2,26,918.90 paise and there were excess materials of the value of Rs. 33,479.60. The difference of the two would came to Rs. 2,24,918.90 paise. 21. In the order, dated 12.10.2002 by which the petitioner was given the notice under rule 139 it was observed that on physical verification of the stores there was a shortage of materials amounting to Rs. 2,26,918.90 paise and there were excess materials of the value of Rs. 33,479.60. The difference of the two would came to Rs. 1,93,439.30, paise However, the final order, dated 24.5.2003 does not take into consideration the figures stated in the order for issuing notice to the petitioner. 22. In the final order, it is stated that the petitioner was put under suspension by office order no. 4338, dated 9.9.1975 because a discrepancy of materials amounting to Rs. 97,553.99 paise was found in the physical verification of the materials in the stock and a criminal case being Chandauti P.S.Case No. 16(9) 1973 was instituted against him for misappropriation of Rs. 97,553.55. The amount of Rs. 97,553.99 as stated in the impugned order appears to be incorrect from the Board's own record. Office order no. 4338, dated 9.9.75 by which the petitioner was put under suspension is at Annexure - 1. In that order the amount of the mis - appropriated materials is stated as Rs. 75,051.40 and not Rs. 97,553.99 paise. Further, in the criminal case the petitioner was charged with mis - appropriation of materials worth Rs. 22,051.44 and not Rs. 97,553.99 paise. 23. In the impugned order, dated 24.5.2003, the Secretary proceeded on the basis of the first information report giving rise to Chandauti P.S.Case No.10/2000 in which the amount of materials mis - appropriated by the petitioner is stated to be Rs. 2,24,918.90 paise. On behalf of the petitioner it was pointed out to him that this sum also included the amount being the subject matter of the earlier criminal case in which the petitioner was acquitted. He, therefore, deducted from Rs. 2,24,918.90 paise the subject matter of the earlier case which according to him was Rs. 97,553.99 and, thus, arrived at the figure of Rs. 1,29,365.45 paise. In other words the Secretary impliedly conceded that the amount stated in the F.I.R. of Chandauti P.S.Case No. 10/2000 was not correct and it was inflated by including the amount of the earlier case. 24. 97,553.99 and, thus, arrived at the figure of Rs. 1,29,365.45 paise. In other words the Secretary impliedly conceded that the amount stated in the F.I.R. of Chandauti P.S.Case No. 10/2000 was not correct and it was inflated by including the amount of the earlier case. 24. On a careful consideration, I find that the whole calculation sufferes from patent errors of record and before this court there is no material to quantify the loss suffered by the Board at Rs. 1,29,365.45 paise (the recovery of which is directed by the impugned order) and to hold the petitioner responsible for the loss. 25. In the circumstances I find it impossible to sustain the impugned order, dated 24.5.2003. It is accordingly set aside. It will be, however, open to the Board to reconsider the matter afresh in the light of this judgment and, if the rules permit, to initiate a proper proceeding against the petitioner to establish the charges against him and to properly quantify the amount of pecuniary loss suffered by the Board on his account. A decision in this regard must be taken within three months from the date of receipt/production of a copy of this order in the office of the Secretary, Bihar State Electricity Board. In case a proceeding is initiated, it must be concluded and a final order in that proceeding must be passed within three months of its initiation. In case a decision to hold a proceeding is not taken and communicated to the petitioner within three months from the date of receipt/production of a copy of this order in the office of the Secretary of the Board, then he would be entitled to full pension and gratuity and the same would be paid to him without any delay. 26. In the result, this writ petition is allowed to the extent indicated above but with no order as to costs.