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2003 DIGILAW 896 (PAT)

Rajendra Singh v. Bihar State Electricity Board

2003-08-26

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 13.5.2001 (Annexure-10), whereby in purported exercise of the power under Rule 139(a) and (b) of the Bihar Pension Rules, pension of the petitioner has been reduced by 10 per cent. He has been given 90 per cent of the pension. 2. Short facts giving rise to the present application are that the petitioner, at the relevant time, was working as a Upper Division Clerk in the Headquarter of the Bihar State Electricity Board. By order dated 11.1.1994, a departmental proceeding was initiated against him and he was served with the memo of charge. According to the charge, on 1.11.1993 at 11.30 a.m. during the working hour, he along with his friends Chakradhar Prasad, Accountant, Bishwanath Prasad Singh, Head Clerk and Subhash Chandra Jha, Head-typist, opened the northern door of the Fund Section on the second floor of the Boards office. According to the charge, the said door was sealed but the petitioner broke open the same along with other employees referred to above which is a misconduct under Clause 29(B) (g) and (I) of the Certified Standing Order. The petitioner submitted his reply dated 19.10.1994 (Annexure-2) regarding the charges levelled against him. The enquiry officer held the petitioner guilty and submitted the inquiry report. A copy of the inquiry report was made available to the petitioner by letter dated 23.12.1994 (Annexure-3) and the petitioner was asked to submit his reply. Petitioner submitted his reply dated 6.1.1995 which has been placed on record as Annexure-A to the counter affidavit filed on behalf of the respondents. 3. By order dated 5.12.1990 (Annexure-A), the disciplinary authority, on consideration of the report of the enquiry officer and the reply of the petitioner, found that the inquiry was not conducted in accordance with law and accordingly did not pass any order of punishment but appointed one Shri K.S.Asal as the inquiry officer to conduct the inquiry de novo. Said Shri Asal retired from service of the Board on 31.1.2000 but for this long period, he did not submit the inquiry report and ultimately, by order dated 5.4.2000, one Sri R.N.Roy was appointed as the enquiry officer. 4. Said Shri Asal retired from service of the Board on 31.1.2000 but for this long period, he did not submit the inquiry report and ultimately, by order dated 5.4.2000, one Sri R.N.Roy was appointed as the enquiry officer. 4. It seems that the petitioner on 11.7.2000 filed application seeking information as to whether the inquiry shall be held de novo and although he was informed the enquiry shall be conducted de novo the petitioner did not file his reply before the newly appointed enquiry officer, He also did not cross-examine the witnesses examined on behalf of the respondents and further did not examine any witness in his defence. The enquiry officer submitted his report dated 4.9.2000 holding the petitioner guilty of the charge. In the meanwhile, petitioner retired from service on attaining the age of superannuation on 29.2.2000. By letter dated 26.2.2001 (Annexure-8) a copy of the enquiry report was made available to the petitioner and he was asked to show cause as to why only 90 per cent of the pension be not paid to him in exercise of the power under Rule 139 (a)(b) of the Bihar Pension Rules for the misconduct proven in the departmental proceeding. Petitioner submitted his reply dated 13.3.2001 and on consideration of the same, the respondents, by the impugned order, decided to grant only 90 per cent of the pension and 10 per cent of the pension was deducted in the exercise of the power under Rule 139(a)(b) of the Bihar Pension Rules. 5. It is the stand of the petitioner that charge of misconduct alleged against him and other employees of the Board namely Chakradhar Prasad Singh, Subhash Chandra Jha and Bishwanath Singh is one and the same but no proceeding was initiated against Chakradhar Prasad Singh. It has also been stated that Subhash Chandra Jha has been exonerated from all the charges whereas Vishwnath Prasad Singh was visited with the penalty of censure and transfer from the place of posting and it is only in the case of the petitioner that punishment of withholding of 10% of the pension was inflicted. 6. Learned counsel appearing on behalf of the petitioner submits that the enquiry officer had submitted his report holding the petitioner guilty of misconduct without considering the reply given by him. Mr. 6. Learned counsel appearing on behalf of the petitioner submits that the enquiry officer had submitted his report holding the petitioner guilty of misconduct without considering the reply given by him. Mr. Mihir Kumar Jha appearing on behalf of the respondents submits that the petitioner submitted his reply to the earlier enquiry officer who submitted his report but when the same was placed before the disciplinary authority, latter found that the enquiry conducted against the petitioner to be not in accordance with law and thereafter a de novo enquiry was directed. He points out that thereafter the enquiry officer gave several opportunities to the petitioner to file his reply which he has not chosen to do and in that view of the matter the report of the enquiry officer cannot be said to have been vitiated on account of non-consideration of the reply given by the petitioner. 7. Having appreciated the rival contention, I do not find any substance in the submission of the learned counsel for the petitioner. Reply dated 19.1.1994 (Annexure-2) was given to the earlier enquiry officer who had submitted his report but the disciplinary authority, having found that the enquiry was not conducted in conformity with the rule, directed for holding the enquiry de novo. In fact the enquiry officer by order dated 1.7.2000 had made it clear that the departmental proceeding shall commence de novo and accordingly petitioner was asked to submit his reply. Petitioner ultimately did not submit any reply to the enquiry officer. In that view of the matter, grievance of the petitioner is absolutely misconceived. 8. Learned counsel for the petitioner submits that after submission of the enquiry report petitioner was asked to show cause as to why his pension be not varied in exercise of the powers under rule 139(a) and (b) of the Bihar Pension Rules and although the petitioner had submitted his reply but while passing the impugned order same has not been taken into consideration. From reading of the impugned order it is evident that while passing the impugned order the authority has taken into consideration all the relevant records. In that view of the matter it cannot be said that the reply given by the petitioner was not considered. From reading of the impugned order it is evident that while passing the impugned order the authority has taken into consideration all the relevant records. In that view of the matter it cannot be said that the reply given by the petitioner was not considered. The order impugned clearly indicates what had happened in the enquiry and accordingly I am of the opinion that the order shows application of mind and it cannot be said that the show cause filed by the petitioner was not considered. 9. Learned counsel for the petitioner submits that the pension of the petitioner has not been reduced on account of past service record but on account of misconduct said to have been proved in a departmental enquiry. Learned counsel contends that in such a situation power under rule 139 of the Bihar Pension Rules is not available to the respondents. In support of the submission reliance has been placed on a large number of decisions of this Court and my attention has been drawn to the following passage from paragraph 4 of the judgment in the case of Udai Shankar Prasad V/s. The State of Bihar and others [ 2000(4) PLJR 135 ], which reads as follows : "Under Rule 139(b) of the Bihar Pension Rules, the authority sanctioning the pension is empowered to make such reduction in the amount as it thinks proper only if the service has not been thoroughly satisfactory. It is not disputed that the petitioner earned his promotions at due time. In the present case, the only basis for exercise of power under Rule 139(a) & (b) is the findings recorded by the Inquiry Officer in the departmental proceeding, which had not attained finality by passing final order in the said proceeding by the disciplinary authority. Under such circumstances, this Court finds it difficult to hold that on that basis alone the power under Rule 139(a) & (b) can be invoked. Learned counsel for the State, however, ventured to submit that from the impugned order itself it is clear that the entire service of the petitioner has not been found satisfactory. This Court is unable to accept the said submission of the learned counsel for the State. Learned counsel for the State, however, ventured to submit that from the impugned order itself it is clear that the entire service of the petitioner has not been found satisfactory. This Court is unable to accept the said submission of the learned counsel for the State. The show cause notice (Annexure-22) also only refers to the charge of the year 1980-81 during the position of the petitioner as Assistant Engineer in Tirhut Canal Division, Hajipur from where the proceeding was initiated. It does not at all mention about any other infirmity in the entire service career of the petitioner. In my opinion, in the facts and circumstances aforementioned even the authority is not competent to invoke the power to initiate departmental proceeding in terms of the proviso to Rule 43(b) which vests power in the State Government to initiate such proceeding even after the retirement of a Government servant as it can be only in respect, of an event which took place not more than four years before the institution of such proceeding. In the present case, admittedly the proceeding initiated earlier did not finally conclude while the petitioner was in service and thus the State Government could have only initiated fresh action against him in terms of the said proviso. As such power cannot be exercised by the State Government in view of the rider provided in the proviso, in my opinion, the power under Rule 139 of the Bihar Pension Rules cannot be invoked..." 10. Learned counsel has also drawn my attention to paragraph 12 of the judgment in the case of Besh Lal Singh V/s. The State of Bihar and others [ 2001(2) PLJR 711 ], same reads as follows : "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 Ansari (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). According to the Apex Court, in the case of State of Bihar V/s. Md. Idris Ansari (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 matter 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." 11. My attention has also been drawn to a Division Bench decision of this Court in the case of State of Bihar V/s. V. Ganga Bishun Mahto 2001(4) PLJR 435 in which in paragraph 12 of the judgment it has been held as follows : "12. Thus, it is clear that pension can be withheld or reduced under Rule 139(b) by the competent authority if the service of a government servant is not thoroughly satisfactory. Even if the service record of the concerned government servant was found satisfactory by the sanctioning authority, power of revision is vested in the State Government to withhold pension, if according to it, the service is not found thoroughly satisfactory or there is proof of grave misconduct during his service tenure. Even if the service record of the concerned government servant was found satisfactory by the sanctioning authority, power of revision is vested in the State Government to withhold pension, if according to it, the service is not found thoroughly satisfactory or there is proof of grave misconduct during his service tenure. Proof of misconduct has to be determined by taking recourse to the provisions contained under rule 43(b) of the Rules." 12. Yet another decision on which reliance has been placed is the decision of a Division Bench of this Court in the case 2002(1) PLJR 774 and my attention has been drawn to the following passage from the said judgment. "In our opinion, when a notice was already issued to the writ petitioner and the proceedings were pending at the time of his retirement, an order under Rule 139(a)(b) could not have been passed, therefore, the order passed under 139(a)(b) deserves to and is accordingly set aside. The State Government, however would be at liberty to proceed further in the matter keeping observance of Rule 43(b) of the Bihar Pension Rules. The concerned authorities are hereby directed to issue notice to the petitioner, secure his attendance and decide the matter in accordance with law within a period of six months from today. The attention of the respondent is required to be secured by the State, because the respondent is not present in court and we decided the matter ex parte." 13. From the decisions of this Court referred to above, there is no escape from the conclusion that power under Rule 139(a)(b) of the Bihar Pension Rules to vary the pension can be taken recourse to by taking into consideration the service record of the petitioner, whereas Rule 43(b) reserves the right to withhold or withdraw the pension if the employee in the departmental proceeding is held to have committed grave misconduct. 14. Here in the present case the second show cause notice clearly states that the petitioner has been held guilty of misconduct in the departmental proceeding and in the aforesaid permises, he has been asked to show cause as to why his pension be not reduced to 90%. The order dated 19.4.2001 reducing the pension also indicates that it has been reduced on account of misconduct proved in the departmental proceeding. The order dated 19.4.2001 reducing the pension also indicates that it has been reduced on account of misconduct proved in the departmental proceeding. Thus the power under Rule 139(a)(b) of the Bihar Pension Rules was not available to the respondents. 15. To overcome this situation Mr. Jha submits that although power under rule 139 of the Bihar Pension Rules may not be available to the respondents to pass order of the nature on account of the specific misconduct said to have been committed by the petitioner but certainly respondent- Board possesses such power under rule 43(b) of the Bihar Pension Rules. It has been pointed out that the departmental proceeding was initiated against the petitioner prior to his retirement and in view of the Full Bench judgment of this Court in the case of Shambhu Saran V/s. The State of Bihar and ors. [ 2000(1) PLJR 665 ] said proceeding continues under rule 43 (b) of the Bihar Pension Rules. He draws my attention to paragraph 5 of the judgment, which reads as follows : "5. 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 re-employment". 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 this context, it may be pointed out that if the Government servant is in service, the disciplinary proceeding can be initiated against him and certain punishment 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 for service. In this context, it may be pointed out that if the Government servant is in service, the disciplinary proceeding can be initiated against him and certain punishment 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 for 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 it 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." 16. Mr. Jha points out that mere wrong mentioning of a provision in the order itself does not vitiate the same. In sum and substance Mr. Jha had made endeavour to support the order under rule 43(b) of the Bihar Pension Rules. 17. There is no difficulty in accepting the broad submission of Mr. Jha that proceeding initiated against the petitioner continued under Rule 43(b) of the Bihar Pension Rules and mere wrong mentioning of the provision in the order does not itself vitiate the order but the question is as to whether the impugned order can be supported in the light of what has been provided in rule 43(b) of the Bihar Pension Rules. Rule 43(b) of the Bihar Pension Rules reads as follows : 43(a) xx xx xx (b) The State Government further reserve to themselves the right of withholding 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 the 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 Government; (ii) shall be in respect of an event which took place not more than four years 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 sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. 18. From a plain reading of rule 43(b) of the Rules it is evident that the State Government has reserved the right of withholding of withdrawing the pension or any part of it permanently or for a specified period in case the pensioner is found in departmental or judicial proceeding guilty of grave misconduct. The expression grave misconduct has not been defined but on account of the use of this expression one has to assume that misconduct alleged against the petitioner has to be a more serious than the mere misconduct. Here in the present case not only the petitioner but others were also charged for the same misconduct. One of the such employees namely Subhash Chandra Jha was exonerated by the enquiry officer and no action was taken against him. Here in the present case not only the petitioner but others were also charged for the same misconduct. One of the such employees namely Subhash Chandra Jha was exonerated by the enquiry officer and no action was taken against him. So far Vishwanath Prasad Singh is concerned he was also exonerated by the enquiry officer but the competent authority found him guilty and visited him with the penalty of censure and transfer. It is not in dispute that allegation against Vishwanath Prasad Singh and the petitioner is one and the same and in case Vishwanath Prasad Singh has been let off with punishment of censure and transfer, the misconduct alleged against the petitioner cannot be said to be grave misconduct. 19. In my opinion, sine qua non for exercise of the power under rule 43(b) of the Pension Rule is that the pensioner has to be held guilty of the grave misconduct in the departmental or judicial proceeding. I may also add that what misconduct would be grave misconduct shall primarily be determined by the authority, subject to the power of judicial review on settled principle. In view of the action taken by the respondent-Board, in regard to another employee it cannot be said that the misconduct proved against the petitioner is a grave misconduct. In that view of the matter, the order impugned cannot be allowed to stand. 20. In the result, the application is allowed and the impugned order dated 19.4.2001 (Annexure-10) is quashed. However, in the facts and circumstances of the case, there shall be no order as to costs.