Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 984 (PAT)

Bihar State Electricity Board v. Sharda Prasad Sinha

2007-05-21

BARIN GHOSH, MADHAVENDRA SARAN

body2007
Judgment Barin Ghosh and Madhavendra Saran JJ. 1. While appointed as Deputy Director of Accounts, the writ petitioner, respondent in these appeals, superannuated on 31.7.1994. He was then re-employed w.e.f 7.2.95. While the writ petitioner respondent was in re-employment a letter was issued to him on 21.9.1995 alleging therein that he made payment on 17.3.92 in respect of supply of certain chemicals, but on test the same turned out to be not the chemicals intendended to be purchased, but were 99 percent water. In the letter it was stated that by reason of the same, the employer has suffered loss of Rs. 7,80,000.00. The letter expressed prima facie view of the fact that such loss was occasioned by reason of the action of the writ petitioner, respondent, in making the payment. The letter however concluded by saying that the writ petitioner respondent is called upon to explain within fortnight of the receipt of the letter as to why suitable disciplinary action should not be taken against him. The re-employment of the writ petitioner respondent came to an end on 6.2.1996. 2. On 25.4.1996 a charge sheet was issued against the writ petitioner, respondent. In that it was contended that by reason of the payment made by the writ petitioner, respondent, the employer suffered loss of Rs. 7,80,000.00, The writ petitioner, respondent, thereupon filed CWJC No. 4940/96 contending that the incident of making payment occurred on 17.3.92, being the event which caused the loss to the employer, and as charge sheet was issued after 4 years from 17.3.92, by reasons of the previsions contained in Rule 43(b) of the Bihar Pension Rules, the charge sheet is of no value and no proceeding on the basis thereof can proceed further. For the reasons recorded in the judgment and order rendered by a learned Single Judge in relation to the said writ petition, the contentions of the writ petitioner, respondent, were upheld and accordingly, the said charge sheet was quashed. After quashing the charge sheet the learned Single Judge made it clear that the same will not stand in the way of authorities to proceed under Rule 139(a) of the said rules. 3. After quashing the charge sheet the learned Single Judge made it clear that the same will not stand in the way of authorities to proceed under Rule 139(a) of the said rules. 3. While the employer Board preferred an appeal against the said judgment and order, registered as LPA No. 446/98, but inasmuch as there was no stay of the operation of the judgment and order under appeal the Board without prejudiced to its rights and contentions in the appeal proceeded under Rule 139(a) of the said Rules and upon giving a show cause concluded the matter by passing an order dated 22.1.2003 and thereby reduced the pension payable to the writ petitioner, respondent, to the extent 20 percent thereof. 4. Being aggrieved by the said decision of the employer Board dated 22.1.2003 the writ petitioner respondent filed yet another writ petition registered as CWJC No. 2009/2003. This writ petition was disposed of by a learned Single Judge of this Court by an order dated 15.4.2005 holding that the provisions contained in Sub-rules (a)(b) and (c) of Rule 139 of the said Rules are interlinked to each other and recourse thereof, as was purported to be taken by the employer Board, under Rule 139(c) could not be taken after lapse of 3 years from the date of sanction of pension of the respondent, writ petitioner. Learned Single Judge found that while the pension payable to the writ petitioner was sanctioned on 31.7.1994, the order dated 22.1.2003 was passed after lapse of three years from 31.7.94 and as such the order dated 22.1.2003 is not sustainable. In such view of the matter the said writ petition was allowed and the order dated 22.1.2003 was quashed. Against the judgment and order passed on 15.4.2005 in the said writ petition the employer Board has filed LPA No. 759 of 2005. 5. We have heard the learned Counsel for the parties at length in respect of both the appeals. 6. Learned Counsel appearing in support of the appeals contended that four years time as mentioned in Rule 43(b) of the said Rules should be counted from the date of knowledge of the incident resulting in loss inasmuch as the word "event" has been used in the said rules. 6. Learned Counsel appearing in support of the appeals contended that four years time as mentioned in Rule 43(b) of the said Rules should be counted from the date of knowledge of the incident resulting in loss inasmuch as the word "event" has been used in the said rules. Learned Counsel further added that having regard to the provisions contained in Rule 43(b) of the said Rules if disciplinary proceeding is initiated either under Rule 55 or 55(a) of Civil Services (Classification, Control and Appeal) Rules and if such proceeding is either for gross misconduct or for recovery of loss sustained by the employer and if the proceeding so initiated is not completed before superannuation of the employee concerned, he may be awarded punishment as has been provided for in Rule 43(b) of the said Rules. It was contended that in fact a proceeding was initiated under Rule 55(a) of the C.C.S. Rules, while the writ petitioner, respondent, was still employed by issuing the letter dated 21.9.95. 7. It was lastly contended that Sub-rules (a)(b) and (c) of Rule 139 of the Pension Rules operate in different fields and they are not interlinked. It was contended that power that was exercised by the employer Board was under Sub-rule (a) of Rule 139 of the Pension Rules and accordingly, the learned Single Judge, while dealing with the second writ petition, erred in applying the period of three years as imposed in Sub-rule (c) of Rule 139 of the Pension Rules. 8. Learned Counsel appearing for the respondent, writ petitioner, submitted that inasmuch as the incident occurred admittedly four years before the action was taken, after superannuation of the writ petitioner, respondent, under Rule 43(d), such an action was per se without jurisdiction. The other learned Counsel, who appeared on behalf of writ petitioner, respondent, in the second appeal, contended that after having had sanctioned pension payable to the writ petitioner, respondent, the appellant Board could interfere with the same only under Sub-rule (c) of Rule 139 of the Pension Rules, but not under Sub-rules (a) or (b) of Rule 139 of the Pension Rules, and time to interfere limited thereby having expired, the same could not be Interfered with. 9. These being the issues it is our duty to take note of the aforementioned rules. 10. 9. These being the issues it is our duty to take note of the aforementioned rules. 10. Rule 43(b) is as follows: 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: 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 net 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. Explanation- For the purpose of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date: and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court: and (ii) in the case of civil proceedings, on the date on which the complaint, is presented, or as the case may be, an application is made to a civil Court. 11. 11. A look at 43(b) of the Pension Rules, therefore, amply demonstrates that if a disciplinary proceeding has been initiated by issuing a charge sheet against the employee for pecuniary loss caused to the employer either by misconduct or negligence and if such disciplinary proceeding could not be concluded before superannuation of the charge sheeted employee, the same may be concluded by directing stoppage of full or a part of the pension otherwise payable to the employee. In the event before superannuation no disciplinary proceeding is initiated by issuing a charge sheet, or by ordering suspension, even then, if pecuniary loss has been caused to the employer by misconduct or negligence, disciplinary proceeding may be initiated by issuing a charge sheet against such employee and upon conclusion of the proceedings pension payable to him may be stopped to the extent of full or a part, thereof. In addition to that if an employee is guilty of causing pecuniary loss to the employer as has been found in a judicial or disciplinary proceeding as a result of gross misconduct, then also full or a part of pension payable to him can be stopped. Therefore, the Rule envisages three different situations. If already there is a finding in a disciplinary or judicial proceeding that an employee has caused gross misconduct resulting in pecuniary loss, his pension can be stopped in full or in part, which is the first situation. Secondly, if there is an allegation that by misconduct or negligence an employee has caused pecuniary loss to the employer and in order to get into the truth and substance of such allegation charge sheet, has been issued, but the proceeding pursuant to the charge sheet could not be completed before superannuation, the proceeding may be concluded after superannuation of the employee concerned by awarding punishment of reduction of his pension either in full or in part. The 3rd situation is when there was no finding in any disciplinary proceeding or judicial proceedings during the time the employee and employer relationship existed, that the employee concerned has caused pecuniary loss to the employer by his misconduct or negligence and at the same time no proceeding was initiated to ascertain the same during the time the employee had not superannuated by issuing a charge sheet, such proceeding way be initiated by issuing a charge sheet after superannuation and upon conclusion thereof punishment by way of reduction of pension in full or in part may be awarded. In relation to the 3rd situation, there is a time limit of four years to initiate the proceeding from the date of "event". The "event" must be such which resulted in misconduct or negligence and that has caused pecuniary loss to the employer. This "event" may be of one day or may be continuing from day to day. What is required to be ascertained is whether by reason of the "event" the misconduct or the negligence of the employee stands established resulting in pecuniary loss to the employer. If there are series of "events" then the last of such events should be taken into consideration upon determining the starting point of time limit. Therefore, if actions are such that one action resulted in another action and that resulted in yet another action, then all actions taken together should be deemed to be the "event" and cut of date would be the last date of that action which completed the "event". 12. The learned Counsel for the appellant has drawn our attention to a judgment rendered by a single Judge of this Court in the case of Ashok Kumar Mishra V/s. State of Bihar, 2003 1 PLJR 172 . In this judgment learned Judge has observed that when time limit is prescribed in respect of an event in a statute it has to reckoned from the date of its knowledge, unless contrary intention is pointed out in the statute by necessary implication: any other view would lead to disastrous consequence. With due respect we do not agree to this. If this view is to be accepted, then we would be required to supply two words in the statute, which having regard to the plain and simple nature of the language used in the statute, has no scope for supplying the same. With due respect we do not agree to this. If this view is to be accepted, then we would be required to supply two words in the statute, which having regard to the plain and simple nature of the language used in the statute, has no scope for supplying the same. However, it would also be kept in mind that if it is brought on record that by reason of acts on the part of delinquent the event remained concealed then the actions to conceal would also be actions resulting in the "event". In other words, the series of actions, which resulted in the actual loss, including actions to prevent detection thereof would also be part of the "event" which has caused the loss. In such view of the matter it must be brought, on record that series of actions not only stopped when the pecuniary loss was actually caused, but the actions continued further for the purpose of preventing detection thereof. 13. In the Instant case the action was concluded on 17.3.92, when the payment was made. Neither in the letter dated 21.9.95, nor in any other subsequent letter or even in the charge sheet, it was held out that the incident of making negligence or dishonest payment on 17.3.92 was concealed by the writ petitioner respondent by his other actions. Therefore, the incident leading to the "event" came to an end on 17.3.92. It is true that on 21.9.95 the writ petitioner, respondent, was an employee of the employer Board, although on re-employment and accordingly, the writ petitioner respondent was under disciplinary powers of the employer Board. In order to discipline the employee, the employer Board could, therefore, take recourse to Rule 55 or 55(a) of the C.C.S, Rules. By taking recourse to Sec. 56(a) of the C.C.S. Rules the employer Board could take steps for recovery of loss caused by the writ petitioner, respondent. It was contended that in order to initiate a proceeding under Rule 55(a) of the C.C.S Rules, the notice dated 21.9.96 was issued. By taking recourse to Sec. 56(a) of the C.C.S. Rules the employer Board could take steps for recovery of loss caused by the writ petitioner, respondent. It was contended that in order to initiate a proceeding under Rule 55(a) of the C.C.S Rules, the notice dated 21.9.96 was issued. If that be so, then the same could be concluded by passing an appropriate order under Rule 43(a) of the Pension Rules, However, as aforesaid, the letter dated 21.9.95 concluded by saying that the intent of the said letter was to call upon the writ petitioner, respondent, to explain as to why suitable disciplinary action should not be taken against him. In such view of the matter, we are unable to construe the letter dated 21.9.95 as a disciplinary step taken under Rule 55(a) of the said Rules. 14. In those circumstances, it would not be appropriate on our part to interfere with the judgment and order rendered in CWJC No. 4940/96 and accordingly, we dismiss LPA No. 446 of 1998. 15. In order to appreciate the contention of the parties in relation to the other L.P.A., it would be appropriate on our part to apply our mind to Sub-rules (a) (b) and (c) of Rule 139 of the Pension Rules, which are as follows: (a) The full pension admissible under the rules is not to be given as a matter of course, unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. (c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing case against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was passed. 16. According to us three significant words have been used in each of these Sub-rules. 16. According to us three significant words have been used in each of these Sub-rules. In Sub-rule (a) the significant word is "approved"; in Sub-rule (b) the significant word is "satisfactory" and in Sub-rule (c) the significant word is "misconduct". No doubt each of the Sub Rules deals with of different situations. Whereas Sub-rule (a) deals with approved service, Sub-rule (b) deals with satisfactory service and Sub-rule (c) deals with misconduct, in course of service. 17. Sub-rule (a) denotes that full pension shall be admissible only in respect of approved service. In other words, even if the employee concerned has served, but not in approved service, then be shall not be entitled to pension for the unapproved service. Sub-rule (b) denotes satisfactory service. In the event confidential reports of employee concerned show that his service had been found unsatisfactory all throughout his service tenure, it is well within the competence of the employer not to grant him pension to the extent he is otherwise entitle. The 3rd situation is when the employer finds on proof that the employee concerned, while in service, was guilty of gross misconduct, it can deal with the pension payble to him to the extent it thinks proper. If the misconduct was committed on the first date the employee joined his service the same can also result in an order dealing with pension in terms of Sub-rule (c). However, this power must be exercised within three years from the date of sanction of pension. 18. Therefore, an action under Sub-rule (a) of Rule 139 can only be upheld if it is shown that the pension payble was fixed on a mistaken notion, as the same could not be fixed, because while fixing such pension the service period, which was not approved, had been taken note of. Similarly, action taken under Sub-rule (b) can only be upheld when it is shown that by mistake without taking note of the confidential reports of the employee concerned his pension had been fixed and on re-looking at his service reports it transpired that his service had been thoroughly unsatisfactory throughout his service tenure or a part thereof. Similarly, action taken under Sub-rule (b) can only be upheld when it is shown that by mistake without taking note of the confidential reports of the employee concerned his pension had been fixed and on re-looking at his service reports it transpired that his service had been thoroughly unsatisfactory throughout his service tenure or a part thereof. At the same time action under Sub-rule (c) of Rule 139 can be upheld provided it is demonstrated that within three years from the date of sanction of the pension of the employee concerned, a proceeding was initiated to prove the charge of misconduct and in such proceeding it has been proved that employee concerned is guilty of such misconduct. 19. We would, therefore, conclude that in the facts and circumstances of the case the action complained of in CWJC No. 2009/2003 being not covered by any of the provisions contained in Sub-rule (a)(b) and (c) of Rule 139 of the Pension Rules, the same cannot be upheld and, accordingly, we dismiss LPA No. 759 of 2005. 20. There shall be no order as to costs.