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2012 DIGILAW 1380 (PAT)

Chintamani Sinha v. State of Bihar

2012-09-27

RAMESH KUMAR DATTA

body2012
ORAL ORDER Heard learned counsel for the petitioners and learned counsels for the State of Bihar and the Accountant General, Bihar. 2. The original petitioner Ram Lakhan Prasad had filed the writ petition for a direction to the respondents to pay the full pension, gratuity and leave encashment as also full salary for the suspension period from 25.4.2002 to 31.1.2003. 3. The brief facts of the case relevant in the present matter are that the original petitioner while in the service of the State Government as a Clerk in a High School was made accused in Rahui P.S. case No.65 of 2002 for the offences under Section 302 IPC and other Sections and was arrested on 23.4.2002. While still in jail he superannuated from service on 31.1.2003. By the judgment and order dated 12.7.2004 he was convicted for the offence under Section 302 IPC and sentenced to imprisonment for life, against which the original petitioner had filed a Criminal Appeal in the High Court which is still pending and the original petitioner was released on bail by order dated 20.5.2009 of this Court. On 24.7.2009 the original petitioner filed his representation before the authorities seeking information of the documents to be submitted by him for his post retiral benefits and other consequential benefits and submitted thereafter the same on 3.10.2009. By the impugned order dated 20.3.2010 (Annexure-8) passed by the District Education Officer referring to the fact of petitioner’s conviction and sentence and the opinion of the Assistant Government Advocate, Biharsharif that in terms of Rule 43(a) of the Bihar Pension Rules future good conduct is a condition of every grant of pension and the Government has a right to withhold and withdraw the pension in part or in full and therefore on account of the conviction of the original petitioner under Section 302 IPC until he is acquitted by the High Court his pension claim is denied. By another order dated 4.9.2010 (Annexure-10) of the District Education Officer, Nalanda the same fact and the same order was reiterated. Finally an office order dated 19.7.2012 of the District Programme Officer (Establishment), Nalanda was passed referring to the facts of the petitioner’s case and also stating that after the petitioner was sent to jail on 25.4.2002 he was placed under suspension and brought under departmental proceedings and the suspension was revoked on 31.1.2003 on his superannuation from service. Finally an office order dated 19.7.2012 of the District Programme Officer (Establishment), Nalanda was passed referring to the facts of the petitioner’s case and also stating that after the petitioner was sent to jail on 25.4.2002 he was placed under suspension and brought under departmental proceedings and the suspension was revoked on 31.1.2003 on his superannuation from service. Referring to the order dated 22.2.2010 with the opinion of the Assistant Government Advocate it was directed that he shall not be paid any pension and gratuity and for the period of suspension he will not be given anything more apart from the subsistence allowance and the departmental proceedings under Rule 43(b) of Bihar Pension Rules was closed. 4. During the pendency of the writ petition the original petitioner died on 12.12.2011 and his heirs and legal representatives have been brought on the record. The order dated 19.7.2012 has admittedly been passed after the death of the original petitioner. 5. Learned counsel for the petitioners submits that so far as the orders dated 20.3.2010 and 4.9.2010 are concerned, the same have been passed under Rule 43(a) of the Bihar Pension Rules which is not at all applicable to the case of the original petitioner. It is urged by learned counsel that such provision can only apply to a case of misconduct or offence that may be committed after the superannuation of the employee, whereas in the present matter the conviction is for an offence which was alleged to have been committed while the petitioner was still in service. With respect to the order dated 19.7.2012 it is submitted by learned counsel that the same has been passed after the death of the original petitioner and is thus non est and incompetent and cannot be given effect to. 6. The key submission of learned counsel for the petitioner, however, is that the original petitioner after his conviction under Section 302 IPC has been subjected to the aforesaid impugned orders without issuing any show cause and without complying with the principles of natural justice. 6. The key submission of learned counsel for the petitioner, however, is that the original petitioner after his conviction under Section 302 IPC has been subjected to the aforesaid impugned orders without issuing any show cause and without complying with the principles of natural justice. It is urged by learned counsel that the order could not have been straightaway passed in the matter and the petitioner ought to have been given a chance to explain the circumstances and the nature of the offences committed which was not at all connected with his official duties but due to a private dispute between the petitioner and his brother. It is submitted by learned counsel that before passing any such order under Rule 43(b) the authority concerned is required to apply his mind to various aspects of the matter including the effect such an order would have upon the dependents of the retired employee and the fact that the offence was not committed with respect to any official duty of the employee which was only possible if the petitioner had been given an opportunity to explain the circumstances. In support of the aforesaid contention learned counsel relies upon a decision of the Supreme Court in the case of Rameshwar Yadav vs. Union of India and another : 1989 Supp (2) SCC 565, in paragraphs 3 to 5 of which it has been held as follows: “3. Learned counsel for the petitioner made submissions challenging the validity of the aforesaid order as well as the validity of Regulation 119 of Pension Regulations Part I (1961) and para 29.1 of Pension Payment Instructions (1973). After hearing the learned counsel for the parties, at some length, we are of the opinion that it is not necessary to decide the question of validity of the aforesaid provisions in the present petition as in our opinion the petitioner is entitled to relief even otherwise. Regulation 119 confers power on the competent authority to withhold in whole or in part the pension of a pensioner, who is convicted of a serious crime by a court of law. Para 29.1 of Pension Payment Instructions (1973) also confers power on the Disbursing Officer to forthwith suspend the payment of pension payable to a pensioner, if he is sentenced to imprisonment. On the release of the pensioner from imprisonment, the Disbursing Officer is required to restore his pension. 4. Para 29.1 of Pension Payment Instructions (1973) also confers power on the Disbursing Officer to forthwith suspend the payment of pension payable to a pensioner, if he is sentenced to imprisonment. On the release of the pensioner from imprisonment, the Disbursing Officer is required to restore his pension. 4. These provisions require the competent authority to apply its mind to the question as to whether the pension should be suspended in whole or in part. While determining this question the Disbursing Officer has to consider the nature of the offence, the circumstances in which offence might have been committed and other allied matters. The officer has also to consider the hardship on the dependents of the person, if the payment of pension is suspended. In the instant case, the impugned order does not show that the competent authority applied its mind to the question as to whether the whole or a part of the pension should be suspended, instead, the authority mechanically issued orders for the suspension of the entire amount of pension for the period of imprisonment of the petitioner. 5. That apart, the amount of pension granted to the petitioner was Rs. 108 which is a paltry amount and which in all likelihood may not be sufficient to sustain the petitioner’s family members. The competent authority did not address himself to any one of these aspects. No reasons are recorded as to why the entire pension was necessary to be suspended. The impugned order is therefore unsustainable in law.” 7. Learned counsel also relies upon a Division Bench judgment of the Delhi High Court dated 3.3.2009 passed in LPA No.19 of 2009 (Shri Radhey Shyam vs. New Delhi Municipal Council and others), in paragraph-6 of which it has been held as follows : “6. We feel that the above order cannot be sustained for two reasons. Firstly, no show cause notice was issued under Rule 9 of the CCS (Pension) Rules, 1972 and the Appellant was never asked and called upon to give his response why his pension and gratuity or a part thereof should be withheld. Thus, there is violation of principles of natural justice. The show cause notice issued to the Appellant was for award of penalty under Rule 19 of the CCS (CCA) Rules, 1965 and admittedly no order has been passed under the said Rule. Thus, there is violation of principles of natural justice. The show cause notice issued to the Appellant was for award of penalty under Rule 19 of the CCS (CCA) Rules, 1965 and admittedly no order has been passed under the said Rule. Secondly, the scope, ambit and the parameters under Rule 9 of the CCS (Pension) Rules, 1972 are different from penalty, which can be imposed under Rule 19 of the CCS (CCA) Rules, 1965. Pension or gratuity can be withheld under Rule 9, partly or in whole if the pensioner is found to be guilty of grave misconduct or negligence during the period of service. The disciplinary authority has not discussed or considered the said aspect and the parameters and requirements of Rule 9 of the CCS (Pension) Rules, 1972 while passing the order dated 22.7.2008. We may in this regard refer to the decision of Supreme Court in Rameshwar Yadav Vs. Union of India and Anr., 1989 Supp (2) SCC 565, wherein identical provisions for withholding of pension/gratuity were considered, and it has been observed as under : “4. These provisions require the competent authority to apply its mind to the question as to whether the pension should be suspended in whole or in part. While determining this question the Disbursing Officer has to consider the nature of the offence, the circumstances in which offence might have been committed and other allied matters. The officer has also to consider the hardship on the dependents of the person, if the payment of pension is suspended. In the instant case, the impugned order does not show that the competent authority applied its mind to the question as to whether the whole or a part of the pension should be suspended, instead, the authority mechanically issued orders for the suspension of the entire amount of pension for the period of imprisonment of the petitioner.” 8. It is submitted that the provisions of Rule 43(b) of Bihar Pension Rules are in pari materia with Rule 9 of the Central Civil Services (Pension) Rules, 1972 and thus the decision would apply with full force in the present case. 9. It is submitted that the provisions of Rule 43(b) of Bihar Pension Rules are in pari materia with Rule 9 of the Central Civil Services (Pension) Rules, 1972 and thus the decision would apply with full force in the present case. 9. It is also contended by learned counsel for the petitioner that under the Notification of the Government even during the pendency of departmental or judicial proceedings after superannuation the retired employee is entitled to payment of at least 90% provisional pension and therefore the same should be paid to the petitioner from 1.2.2003 to 19.3.2010. 10. It is also the stand of learned counsel for the petitioner that the original petitioner having retired while he was under suspension, hence the full salary cannot be denied to him. In support of the same learned counsel relies upon a decision of a learned Single Judge of this Court in the case of Bindeshwar Narain Srivastava @ Dr.Bindeshwar Narain Srivastava vs. The State of Bihar & Ors. : 2005(2) PLJR 114, in paragraph-7 of which it has been held as follows : “7. It should always be kept in mind that an order of suspension is not a punishment order. If an order of suspension is treated to be a punishment order, the same would be an invalid order for the suspension orders are passed at the threshold and even at a stage where only a proceeding is under contemplation. The reasons for issuing a suspension order are varying, one of them, is not to permit the delinquent to influence the enquiry that may be made. The other may be to protect and preserve the dignity of the other employees of the Organisation. In such view of the matter, a suspension order is issued when a departmental proceeding against the delinquent is under contemplation or when criminal charges are under consideration by an appropriate criminal court against the delinquent. The suspension order issued in contemplation of a disciplinary proceeding merges into the final order to be passed in the disciplinary proceeding. At the time of conclusion of the disciplinary proceeding it is open to the disciplinary authority to prevent the delinquent to draw full salary and to permit him to draw only the subsistence allowance. The suspension order issued in contemplation of a disciplinary proceeding merges into the final order to be passed in the disciplinary proceeding. At the time of conclusion of the disciplinary proceeding it is open to the disciplinary authority to prevent the delinquent to draw full salary and to permit him to draw only the subsistence allowance. The suspension order issued for a grave criminal charge, which is under investigation by a criminal court, also merges with the order that is to be passed after conclusion of the criminal proceedings, although the same would be passed by the disciplinary authority. If the delinquent is convicted and sentenced he would automatically lose his job and as a result it is well within the competence of the disciplinary authority to direct that apart from the subsistence allowance, the delinquent shall not be entitled to any other part of the salary. However, these orders can only be passed by the disciplinary authority till such time the delinquent is in service and not after his retirement. After retirement, no order can be passed by the disciplinary authority dismissing the services of the delinquent. If that be so, even if the writ petitioner is convicted in the said C.B.I. case, such conviction being after his retirement, the petitioner cannot be dismissed from service, although on the basis thereof his pension may be withheld in part or in full. What will then happen, in relation to the period the petitioner was under suspension? As aforesaid, in relation to that, after his retirement, the disciplinary authority will have no authority to pass any order and as such the order of suspension on retirement will come to an end automatically. The petitioner in such circumstances should not only be paid subsistence allowance but also his full salary for without adjudging that he is guilty of an offence, he cannot be punished and as aforesaid after retirement he cannot be punished except by way of withholding a part or full of his pension.” 11. Learned counsel for the State, on the other hand, submits that it is not open to the original petitioner to submit that the orders dated 20.3.2010 and 4.9.2010 are bad for the sole reason that they refer to Rule 43(a) of the Bihar Pension Rules. Learned counsel for the State, on the other hand, submits that it is not open to the original petitioner to submit that the orders dated 20.3.2010 and 4.9.2010 are bad for the sole reason that they refer to Rule 43(a) of the Bihar Pension Rules. It is urged that evidently in the present matter the application is of Rule 43(b) of the Bihar Pension Rules and so far as the power to pass an order of the nature of the orders dated 20.3.2010 and 4.9.2010 is concerned, the same is not denied and thus on the sole ground that the orders refer to Rule 43(a) does not mean that the orders are bad in law. 12. Learned counsel further submits that so far as the passing of an order under Rule 43(b) of the Bihar Pension Rules is concerned, no show cause is required to be given after the conviction is recorded by a criminal court for the purpose of withholding the whole or a part of the pension. In this regard learned counsel refers to the provisions of Article 311(2) of the Constitution under which while the delinquent employee has a right to be heard in a full scale departmental proceeding but once the charges of misconduct are proved there can be no further right to be heard on the punishment to be imposed upon the same. For the sole reason an order under Rule 43(b) which is in the nature of a punishment on the finding of misconduct either in departmental or judicial proceedings would not entail issuance of any notice to show cause to the delinquent ex-employee as to the punishment to be imposed upon him by way of withholding the whole or a part of his pension. 13. It is also submitted by learned counsel that in the present matter show cause is a mere formality as there is hardly anything to be said in the matter with regard to his conviction. In this regard learned counsel relies upon a Full Bench decision of this Court in the case of Sarju Prasad Singh vs. The State of Bihar & Ors. :1987(2) PLJR 285 wherein it was held that a charge of substantive murder under Section 302 IPC involves moral turpitude. Paragraph-15 of the said judgment reads as follows: “15. In this regard learned counsel relies upon a Full Bench decision of this Court in the case of Sarju Prasad Singh vs. The State of Bihar & Ors. :1987(2) PLJR 285 wherein it was held that a charge of substantive murder under Section 302 IPC involves moral turpitude. Paragraph-15 of the said judgment reads as follows: “15. To conclude on the legal aspect, the answer to the question posed at the outset is rendered in the affirmative and it is held that the criminal charge of substantive murder under Section 302 of the Indian Penal Code involves moral turpitude.” 14. Learned counsel also refers to a decision of a learned Single Judge of this Court in the case of Adya Prasad Singh vs. The State of Bihar & Ors. : 1999(1) PLJR 564 in which this Court had refused to allow the prayer of the petitioner of that case to be granted the benefit of his salary on a first and second time bound promotion after his conviction in a case of murder holding that such person should not have been allowed to remain in service despite having committed a crime amounting to murder and thus on the broad principles of equity and in public interest such person’s prayer for payment of his claim of arrears of salary arising out of such undue grant of promotion cannot be allowed. 15. I have considered the submissions of learned counsels for the parties. It is evident from the facts of the present case that the original petitioner not only had been charged of having committed the criminal offence of murder while he was still in service and remained in jail continuously both at the time of trial and for almost five years after his conviction after filing Criminal Appeal in the year 2004 and he was finally released on bail by order dated 20.5.2009 of this Court. The offence of committing murder as per the Full Bench decision of this Court in Sarju Prasad Singh’s case (supra) involves moral turpitude and thus conviction under Section 302 IPC by itself would have been sufficient, if the said order has been passed while the petitioner was still in service, for dismissal of the petitioner from service in terms of the Service Rules as also the provisions of Article 311 of the Constitution without holding any further departmental enquiry against the petitioner. 16. 16. The main question to be considered is as to whether after such conviction it is incumbent upon the authorities to issue any show cause notice and hear the convicted ex-employee before passing an order under Rule 43(b) of the Bihar Pension Rules. From a perusal of the provisions of Rule 43(b) it does not appear that any such procedure is required to be followed; the said Rule only insists upon a proper opportunity to an employee in a full fledged departmental proceeding before arriving at a finding of misconduct upon which the order of withholding of pension may be made. With respect to judicial proceedings no such procedure is required as the very functioning of a criminal court is such that the maximum opportunity of hearing is provided to a person and a finding of guilt is recorded only if the charge is proved beyond reasonable doubt. Once the finding is recorded either in departmental or judicial proceedings there is no further requirement in the said Rule of giving a further opportunity to the concerned employee as to the quantum of pension to be withheld, whether in whole or in part. The same is not required even when a punishment is imposed while he is still in service after the 42nd amendment of the Constitution in Article 311. If no such further opportunity to represent in the departmental proceedings is required so far as the quantum of punishment is concerned or even with respect to passing an order of withholding the whole or a part of the pension, this Court fails to understand as to how after conviction by a court of law such an opportunity would be required. 17. In the case of Rameshwar Yadav (supra) the situation was very different and it was a case of a retired soldier in the Army and the offence of murder was committed and the conviction was recorded after the retirement of the concerned employee. There was specific provision under the Pension Regulations of the Army and Pension Payment Instructions in such matters. There was specific provision under the Pension Regulations of the Army and Pension Payment Instructions in such matters. Under paragraph-29.1 of Pension Payment Instructions, 1973 power was conferred on the Disbursing Officer to look into the question as to whether the pension should be suspended in whole or in part considering the nature of the offence in which offence might have been committed and other allied matters and the officer had to consider the hardship on the dependents of the pensioner. Even in the said decision it has nowhere been held by the Apex Court that the petitioner was entitled to hearing by the competent authority, rather it was only held that the competent authority must apply his mind before passing an order for the suspension of the entire amount of pension for the period of imprisonment of the said petitioner. 18. The Division Bench of the Delhi High Court in Shri Radhey Shyam’s case (supra), with great respect, has not noticed the Pension Regulations and Pension Payment Instructions as applicable with respect to retired army officers in particular vis-à-vis Rule 9 of the Central Civil Services (Pension) Rules, 1972 while holding that in view of the Apex Court’s decision in Rameshwar Yadav’s case (supra) there is a requirement of issuing a show cause notice and passing an order thereafter. This Court is unable to accept the said proposition in view of what has been discussed above and the very different provision of Rule 43(b) of the Bihar Pension Rules as compared to the Pension Regulations and Pension Payment Instructions relating to army officials. Moreover, the Apex Court’s decision was in a case which related to the provisions which would be similar to some extent to Clause(a) of Rule 43 and not Rule 43(b) and hence it cannot be applied in the present matter. As a matter of fact, in Rameshwar Yadav’s case ( supra) the Apex Court had also observed that the order had been passed having regard to the special facts and circumstances of that case and thus it appears to be an order under Article 142 of the Constitution which is an exclusive power possessed by the Apex Court and not by the High Courts. 19. This Court, however, is in agreement with learned counsel for the petitioner that any order passed under Rule 43(b) can only be prospective and not retrospective. 19. This Court, however, is in agreement with learned counsel for the petitioner that any order passed under Rule 43(b) can only be prospective and not retrospective. Admittedly, under the Government Notifications a retired employee even if proceedings judicial or departmental are continuing against him would be entitled to payment of 90% provisional pension until an order is passed under Rule 43(b). In the present matter, for the first time the order has been passed on 20.3.2010 and thus the petitioner would be entitled to be given 90% provisional pension for the period from 1.2.2003 till 19.3.2010. 20. This Court is also of the view that the widow of the deceased ex-employee would be entitled to payment of the full salary for the period of suspension on 24.4.2002 till 31.1.2003 but on a different ground than what has been stated in the decision of a learned Single Judge of this Court in Bindeshwar Narain Srivastava’s case (supra). The said decision does not take into account the earlier decision of this Court in the case of Smt.Vidya Sinha vs. The State of Bihar & Ors. : 1995(2) PLJR 616, in paragraph-5 of which it has been held as follows : “5. Where the delinquent superannuates from service in a state of suspension, the proceeding cannot be continued except for the purpose of withholding of pension (or guilty) under Rule 43(b) of the Bihar Pension Rules. For other purposes it comes to an end. Therefore, there is no question of his being exonerated or the suspension being found to be unjustified for the purpose of his entitlement to pay and allowances under Rule 97(2). That would not, however, mean that the charges which he was facing- whether a formal proceeding was pending or not would automatically get wiped out. In my opinion, in such a situation it would be permissible to the competent authority to consider whether the person should be paid salary and allowances for the suspension period after, of course, giving opportunity of hearing to him. There cannot be any doubt that any order denying salary and allowances for the suspension period is not a penalty within the meaning of the service rules but, nevertheless, is penal in nature and effect and, therefore, cannot be passed except after giving opportunity of hearing. There cannot be any doubt that any order denying salary and allowances for the suspension period is not a penalty within the meaning of the service rules but, nevertheless, is penal in nature and effect and, therefore, cannot be passed except after giving opportunity of hearing. While in the case of Government servants in service, the order is to be passed under Rule 97 of the Service Code, after his superannuation, it will be deemed to be an independent order and not under Rule 97 but the consideration will more or less be the same. I would, accordingly, hold that the State Government is competent to deny salary for the suspension period on valid grounds even after superannuation after giving opportunity of hearing. No law has been brought to my notice prohibiting the State Government from passing such an order. As a matter of fact, a learned Judge of this Court, on difference of opinion between the Judges, in the case of Dr. Laxmi Narain Singh vs. The State of Bihar (1989 BBCJ, 147), has taken a similar view.” 21. In the said decision it was clearly laid down that although Rule 97 of the Bihar Service Code will not apply after superannuation but it is open to the State Government to pass an independent order, although not under Rule 97 but the consideration which would be more or less the same, and it would be competent for the State to deny salary for the suspension period even after superannuation after giving an opportunity of hearing. The learned Judge also referred to an earlier decision of learned Single Judge of this Court on difference of opinion between the two Judges of the Division Bench in the case of Dr.Laxmi Narain Singh vs. The State of Bihar : 1989 BBCJ 147 . 22. Thus applying the aforesaid principle it is evident that the impugned order dated 19.7.2012, directing that no salary shall be paid apart from the subsistence allowance, is contrary to the decision of this Court in Smt. Vidya Sinha’s case (supra) as the same has been passed without giving an opportunity of hearing to the employee, who in fact was not alive when it was passed. Hence, the petitioner would be entitled to payment of difference of salary and the subsistence allowance for the period during which the original petitioner was under suspension. 23. Hence, the petitioner would be entitled to payment of difference of salary and the subsistence allowance for the period during which the original petitioner was under suspension. 23. Thus, on a consideration of the entire facts and circumstances, the writ application is partly allowed and it is directed that the respondents shall pay 90% provisional pension to the petitioner for the period from 1.2.2003 till 19.3.2010. The petitioner would also be entitled to payment of difference between the salary and the subsistence allowance paid for the period from 24.4.2002 to 31.1.2003 during the period of suspension of the original petitioner. The other claims of the petitioner are rejected. 24. Let the said payments be made within a period of three months from the date of receipt/production of a copy of this order.