Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 510 (PAT)

Sukdeo Narain Verma v. State Of Bihar

2005-05-10

MRIDULA MISHRA

body2005
Judgment 1. Heard counsel for the parties. 2. This is the 5th round when the petitioner has challenged the order of withholding 100% of his pension. 3. Brief facts of the case is that the petitioner superannuated as Chief Engineer, Department of Water Resources, Government of Bihar on 31.3.1989. His gratuity and full pension was fixed and paid with effect from 1.4.1989. Near about after three years vide Memo No. 882 dated 22.3.1991 a show cause notice for withholding pension under Rule 43(b) of the Bihar Pension Rules was issued to the petitioner. The petitioner requested the department for supplying certain papers for filing effective show cause but papers were not supplied to the petitioner and his 100% pension was withheld. This order was challenged in C.W.J.C. No. 171 of 1993. The said order was quashed and respondents were directed to supply papers/documents to the petitioner for filing proper show cause. Without complying the direction of this Court again by order dated 25.4.1996 100% pension of the petitioner was withheld. This order was also challenged in C.W.J.C. No. 9991 of 1996 which was allowed by order dated 29.7.1997. with a finding that the proceeding under Rule 43(b) was not conducted as required under the pension rules. A time limit was fixed for supply of papers to the petitioner and disposal of the proceeding in accordance with law. Petitioner again requested for supply of the documents but it was not supplied. Even then the petitioner submitted his preliminary show cause denying the allegations. Without properly initiating a proceeding as provided under Rule 43(b) of the Pension Rules, such as without appointing any enquiry officer, without giving any opportunity to the petitioner to cross-examine the witnesses or lead evidence an order was passed vide letter dated 2.1.1998. By this order petitioner was informed that the charges have been proved and his pension has been fixed at Zero. Again petitioner filed C.W.J.C. No. 2214 of 1999 for quashing the order fixing his pension at zero. The writ application was allowed by order dated 24.11.1999, directing the respondents to release the pensionary dues of petitioner within two weeks. The respondents were given liberty to proceed in accordance with law and the petitioner was also given opportunity to agitate the matter for non-supply of papers. The respondents preferred L.P.A. No. 497 of 2000 which was dismissed by order dated 20.11.2001. The respondents were given liberty to proceed in accordance with law and the petitioner was also given opportunity to agitate the matter for non-supply of papers. The respondents preferred L.P.A. No. 497 of 2000 which was dismissed by order dated 20.11.2001. S.L.P. No. 3603 of 2001 was filed before the Supreme Court against the order passed in L.P.A. which was also dismissed by order dated 11.5.2001. Petitioner, in the meantime preferred M.J.C. No. 375 of 2000 for initiating a proceeding of contempt against the respondents as the order passed in C.W.J.C. No. 2214 of 1999 has not been complied and petitioners pension has not been released. After dismissal of L.P.A. an order for payment of petitioners pension was passed vide letter dated 5.1.2001 with the condition that the payment will be made subject to final order passed in S.L.P. In view of the dismissal of the S.L.P. the respondents were bound to pay the pension as such they started paying the pension. This story did not end here as again vide Memo No. 286 dated 24.1.2002 petitioners pension has been fixed at zero and the Accountant General, Bihar vide Memo No. Pen-ll-2514 dated 1.3.2002 communicated the petitioner that his pension has been fixed at zero and it is going to be stopped forthwith. 4. The present application has been filed by the petitioner for quashing the order contained in Memo No. 286 dated 24.1.2002 (Annexure-6) issued by the Joint Secretary, Water Resources Department, Government of Bihar at a fixing pension of the petitioner at zero and the consequential order dated 1.3.2002 issued by the Accountant General vide Memo No. Pen-ll-2514 stopping the pension of the petitioner forthwith. 5. In the counter affidavit filed by respondent nos. 2 and 3 a list of irregularities have been mentioned due to which heavy financial loss has been caused to the State. It has been denied that necessary documents were not supplied to the petitioner rather it has been stated that intentionally no show cause was filed as such department examined the charges on the basis of available records. Petitioner was found guilty of incurring huge loss to the Government and the order was passed fixing petitioners pension at zero. Similar orders were repeatedly passed by the respondents and every time on one pretext or other the petitioner has challenged the order by filing writ application. Petitioner was found guilty of incurring huge loss to the Government and the order was passed fixing petitioners pension at zero. Similar orders were repeatedly passed by the respondents and every time on one pretext or other the petitioner has challenged the order by filing writ application. The papers and documents as desired by the petitioner were made available to him after disposal off C.W.J.C. No. 9991 of 1996. Papers and documents were supplied to the petitioner on 12.9.1997 and in token thereof he put his signature. In compliance of the order of the High Court the procedure was adopted and by speaking order dated 22.1.1998 punishment of permanent stoppage of pension was again passed. This order was challenged in C.W.J.C. No. 2214 of 1999 which was allowed on the ground that as provided under Rule 43(b)(c) of Pension Rules, Bihar Public Service Commission was not consulted before passing the final order. Thereafter a proposal for post facto concurrence made to Bihar Public Service Commission, but it was refused on the ground that the punishment is severe and it requires reconsideration. The department thereafter re-initiated proceeding under Rule 43(b) of the Bihar Pension Rules. Under the rule of Executive business the order of punishment was approved by the Chief Minister, Bihar and the matter was referred to the council of ministers in the form of cabinet memorandum for keeping the proposed order of punishment in vogue. Getting the approval of the council of ministers the department issued fresh order dated 24.1.2002 whereby petitioners pension has completely been stopped. 6. Petitioner has challenged the order of stopping the pension of the petitioner and fixing it at zero on the ground that the orders are completely contemptuous being in violation of the Hon ble Courts order dated 24.11.1999 whereby the respondents were directed to release the pension of the petitioner. This order was challenged by the respondents up to the apex court and lost. Thereafter initiation of fresh proceeding under Rule 43(b) of the Bihar Pension Rules and without following the procedure provided under the Pension Rules for withholding the pension passing an order fixing the pension of the petitioner at zero is clear contempt of the order of this Court as we!i as Apex Court. This is the first and foremost cause for quashing the impugned orders. This is the first and foremost cause for quashing the impugned orders. Another ground taken by the petitioner is that the fixing the petitioners pension at zero after he got pension for a long time, in a proceeding under Rule 43(b) of the Pension Rules is illegal and without jurisdiction. Primarily for the reasons that the impugned order as well as the consequential order has been passed in violation of the terms of proviso (a)(iii) of Rule 43(b) of the Pension Rules. Under Rule 43(b)(a) (iii) it is required that the proceeding should be conducted in accordance with the procedure applicable to proceeding in which the order of dismissal from service can be made. The procedure for passing an order of dismissal is laid down in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 which has not been followed while passing the impugned orders. Rule 43(b) of the Bihar Pension Rules provides that 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 any 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. 7. Under Rule 55 of Civil Services (Classification, Control and Appeal) Rules the procedure for imposing punishment of dismissal has been provided. The procedure is that the person must be informed in writing all the grounds on which it is proposed to take action should be afforded an adequate opportunity of defending himself, the ground on which it is proposed to take action shall be reduced to in the form of definite charge or charges and it should be communicated to the person charged together with the allegation on which each charge is based, he shall be asked to put in a written statement, his defence within a reasonable time, if he desires to be heard in person and oral enquiry should be held. On that enquiry oral evidence shall be heard subject to such of the allegations are not admitted and the person charged shall be entitled to cross-examine the witnesses to lead evidence in person and to have such witnesses informed. The Enquiry Officer conducting the enquiry if refused to call witnesses for any special reason, reasons should be recorded in writing. Thus the proceeding contains sufficient records and the evidence and the statements of the findings and the grounds thereof. 8. Submissions made by the petitioners counsel is that considering the fact that most severe punishment has been awarded to the petitioner without following the procedure as provided under Rule 43(b)(a)(iii) of the Pension Rules the orders impugned are fit to be quashed. It has also been submitted that the impugned orders have been passed in violation of Rule 43(b)(c) of the Pension Rules which is mandatory provision that the Bihar Public Service Commission should be consulted before final orders are passed considering the fact that the concurrence has not been given by the B.P.S.C. on the ground that the punishment is severe, the impugned order is fit to be quashed. 9. In reply to this argument respondents counsel has submitted that the Government order withholding full pension is justified and proportionate to the magnitude of the guilt. The impugned orders are not contemptuous of the order dated 24.11.1999 because the observation was to proceed further in the matter in accordance with law. Accordingly the respondents proceeded further in the matter, B.P.S.C. was requested to give concurrence over the punishment. B.P.S.C. refused to give post facto concurrence stating that it is too severe and returned back the proposal for reconsideration. B.P.S.C. though differed with the gravity of the punishment, but it did not differ with the charges proved against the petitioner. Petitioner was held responsible for misappropriating Rs. 89.80 lacs of the public exchequer hence under the circumstances the respondent authority in accordance with the order of appointment department issued vide Memo No. 111/R-1-106/705 dated 8.9.95 decided to refer the matter to Hon ble Chief Minister to the Government of Bihar for approval. After the approval of the Chief Minister, the order was also approved by the Council of Ministers and the impugned order was passed. It has been denied that the order has been passed without following the procedure under Rule 43(b). 10. After the approval of the Chief Minister, the order was also approved by the Council of Ministers and the impugned order was passed. It has been denied that the order has been passed without following the procedure under Rule 43(b). 10. Considering the rival contention of the parties and considering the different decisions cited by the parties I find that the impugned orders have been passed by the respondents without following the procedure as provided under Rule 43(b)(a)(iii) of the Pension Rules. The procedure as provided for imposing punishment of dismissal under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules was not followed. Another illegality in the order is that any order under Rule 43(b) of the Pension Rules can be passed subject to the rider that such departmental proceeding shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceeding. 11. From the counter affidavit it transpires that the charges are related to the period of 1984-85 and 86 and for the first time notice was issued to the petitioner on 23.2.1991 informing initiating of proceeding under Rule 43(b) of the Pension Rules. This was much after the period of four years as provided under Rule 43(b)(a)(ii) of the Pension Rules. Counsel for the respondents has tried to impress upon that the initiation of proceeding was within the time as the petitioner was asked explanation for the allegations involved vide department letter no. 2835 dated 16.11.1990. This submission is not satisfactory because the proceeding will be deemed to be initiated from the date when the memo of charge is issued in favour of the delinquent which was vide letter no. 882 dated 22.3.1991. This clearly indicates that the initiation of proceeding after expiry of four years and the passing of the impugned orders in such proceedings is against the provisions of the pension rules, the order cannot be held to be in accordance with law. Accordingly the orders contained in Annexures-6 and 8 are quashed. The respondents are directed to pay the arrears of pension to the petitioner forthwith and also to pay the current and future pension without any interest. 12. Accordingly this application is allowed.