Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 201 (PAT)

Brajendra Kumar Sinha () v. State Of Bihar

2005-02-24

S.K.KATRIAR

body2005
Judgment S.K.Katriar, J. 1. Heard Mr. Bindhyachal Singh for the petitioner, and Mr. A.K. Choudhary, learned Govt. Pleader No. VIII for the respondents. 2. According to the writ petition, the petitioner superannuated from the services of the Bihar Government with effect from 31.1.1992 while functioning as Principal of Health & Welfare Training Centre, Bhagalpur. The petitioner complains before this Court that he is being paid 100% of his pension but on provisional basis. He further complains that he is not being allowed commutation of pension, and lastly submits that his TA bills are not being reinbursed. It is further stated that much after the respondent authorities filed their counter affidavit, they have filed a supplementary counter affidavit, placing on record show-cause notice bearing memo No. 912 (9) dated 28.12.98, whereby the petitioner has been asked to show cause as to why action in accordance with law be not taken for financial irregularities in purchase of medicines. 3. Learned government counsel submits that the petitioner was guilty of acts of omission and commission while in service. The petitioners request for commutation of pension has not so far been considered because his pension has not been finally fixed. He lastly submits that the TA bills had been submitted belatedly which are now being processed and the admissible claims shall be paid promptly. 4. I have perused the materials on record and considered the submissions of learned counsel for the parties. As per the said show-cause notice, the allegations against the petitioner are as follows : ???(I) It is manifest on the face of it that the petitioner superannuated with effect from 31.1.1992. In so far as the second charge is concerned, it alleges that medicines were purchased from MSD, Calcutta, inspite of the ban imposed on the firm by order dt. 22.4.94. On the face of it, the ban on purchases from MSD, Calcutta, was imposed much after the petitioner had retired and has, therefore to be set aside. In so far as the first charge is concerned, the purchase seems to have been made in February 1990 which was allegedly contrary to the purchase policy bearing Order No. 176(10), dated 27.1.1992. This charge on the very face of it appears to be unsustainable for the reason that purchase policy of January 1992 cannot govern the purchase of February 1990. 5. There is yet another aspect of the matter. This charge on the very face of it appears to be unsustainable for the reason that purchase policy of January 1992 cannot govern the purchase of February 1990. 5. There is yet another aspect of the matter. The purchase was allegedly made beyond the financial allotment, were contrary to the purchase order dated 27.1.1992, and were purchased inspite of the ban of 22.4.1994. In other words, it prima facie appears to be a ease of purchase beyond authorisation and government policy. The purchase seems to have taken place in February 1990, the petitioner had superannuated in January 1992, whereas the show-cause notice is dated 28.12.1998, much after four years of the date of purchase as well as the date of superannuation. This is obviously hit by the bar of limitation engrafted in Rules 43 (b) of the Bihar Pension Rules. No action is now possible on account of lapse of time. 6. Comparable issues were discussed by a learned Single Judge of this Court in his judgment reported in 2004 (4) PLJR 159 (Parmeshwar Dayal Verma V/s. State of Bihar), wherein the petitioner was a Librarian. While he was still in service, a report disclosed that a large number of books were missing from the library during the period he was in charge, valued at Rs. 2,18,064. Apart from the books, materials from the store worth Rs. 3,826.00 were also missing. A sum of Rs. 1,167.00 was also given to the petitioner as development advance and remained unadjusted. All these were disclosed in a report submitted while he was still in service but the authorities sat over the matter and no action was taken. The petitioner retired, whereafter a committee was constituted to quantify the amount of losses to the Government with a view to recover the same which was impugned before this Court. Speaking for the Court, Aftab Alam, J. held that such acts of omission and commission on the part of the petitioner prima facie amounted to gross misconduct in several ways. It was open to the disciplinary authority at that time to frame charges and to hold a disciplinary proceeding against him, which was not done. By the time of his retirement, the matter was seven years old and it was clearly hit by the provisions of Rule 43 (b) of the Rules. It was open to the disciplinary authority at that time to frame charges and to hold a disciplinary proceeding against him, which was not done. By the time of his retirement, the matter was seven years old and it was clearly hit by the provisions of Rule 43 (b) of the Rules. In that view of the matter, the Hon ble Judge held that the recovery was no longer possible. 7. I had the occasion to apply the judgment in the case of Parmeshwar Dayal Verma (supra) in CWJC No. 15286 of 2001 (Jagdish Chandra Sinha V/s. The State of Bihar), wherein the petitioner had superannuated with effect from 31.12.1999 while functioning as Junior Engineer. A sum of Rs. 4,58,919.40p. was sought to be adjusted from the post-retirement benefits which was impugned before this Court. It was found that, on the own showing of the State Government the petitioner had been given the said sum by way of advance for completion of civil construction which he had completed to the extent of 85% and that too deficiently. The writ petition was allowed and the impugned action of the respondent authorities to recover the amount was set aside. It has been held that the petitioners case appeared to be on a better footing than that of Parmeshwar Dayal Verma (supra). In the latter case, the entire property of the State Government to the extent indicated therein was completely missing. In the case of Jagdish Chandra Sinha, (supra), the work had been executed to the extent of 85% in a deficient manner. No action, nor recovery, was possible. 8. As stated hereinabove, there is no allegation against the present petitioner that the purchase had not taken place. The same seems to have been done beyond the extent of financial allotment and contrary to the policy decisions of the State Government. I am therefore, of the view that the present case is covered by the judgments in Parmeshwar Dayal Verma (supra) and Jagdish Chandra Sinha (supra). The show-cause notice dated 28.12.98 is on the very face of it unsustainable, and is hereby quashed. Respondent No. 2 (The Commissioner-cum-Secretary, Department of Health, Govt. of Bihar, Patna) is directed to ensure that the petitioners pension is finally fixed. 9. The show-cause notice dated 28.12.98 is on the very face of it unsustainable, and is hereby quashed. Respondent No. 2 (The Commissioner-cum-Secretary, Department of Health, Govt. of Bihar, Patna) is directed to ensure that the petitioners pension is finally fixed. 9. This takes me on to the question of relief to be granted to the petitioner, namely, the date from which the benefit of commutation of pension should commence in the peculiar facts and circumstances of the present case. Learned counsel for the petitioner is unable to bring to my notice any material to show that the petitioner had exercised his option for the benefit of commutation of pension, except the statement made in paragraph 34 of the writ petition. In my view, the statement made therein is vague and shorn of all details. Even the date on which he claims to have applied for commutation of pension is missing, let alone the question of annexing copy of his application. Commutation of pension is entirely optional with the employee. It is entirely open to a retired employee not to opt for the benefit of commutation of pension. In view of limited materials before me, I am unable to grant this relief from an earlier date. It will, however, be open to the petitioner to satisfy respondent Nos. land 2 that he had applied for the same at an earlier date, and equally to apply for the same hereinafter which shall be considered in accordance with law promptly. 10. It may be stated that the petitioner had earlier moved this Court for payment of his post-retirement benefits by preferring CWJC No. 13193 of 1993, which was disposed of by order dt. 9.8.95 (Annexure 2). The petitioner has been forced to come to this Court for the second time for same or similar reliefs. 11. Learned counsel for the petitioner prays for interest on belated payments. The petitioner shall be entitled to interest at the statutory rate on the deposits of general provident fund till the date of payment. 12. Let the T.A. bills be processed and the admissible claim paid with interest at the rate of 9% from the date(s) the journey was undertaken. 13. The writ petition is allowed in the aforesaid manner with costs of this writ petition quantified at Rs. 10,000.00 (ten thousand).