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2012 DIGILAW 260 (PAT)

Nityanand Kumar Singh v. State of Bihar

2012-02-13

ADITYA KUMAR TRIVEDI, SHIVA KIRTI SINGH

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ORDER : SHIVA KIRTI SINGH, J. Heard the parties. 2. By order dated 30.11.2010, learned Single Judge has noticed a submission advanced on behalf of the petitioner in this case and the issue arising on the basis of such submission was referred to Division Bench for authoritative pronouncement because no earlier precedent could be cited on the issue. 3. In simple words, the issue referred to the Division Bench is whether clause (a) (ii) of the proviso to Rule 43 (b) shall govern Rule 43 (a) of the Bihar Pension Rules or not. 4. As noticed above, there is no authoritative pronouncement on the issue and the decision has to rest upon reading of Rule 43 itself. For better appreciation of the issue, we extract herein below Rule 43 of the Bihar Pension Rules (hereinafter referred to as ‘the Rules’). 43. (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (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 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 reemployment 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. Explanation.- For the purposes 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. 5. 5. Rule 43 (a) and Rule 43 (b) on account of similarity of expression and words used, appear to be overlapping and that has led to issue at hand. However, the opening sentence of Rule 43 (a) provides the key to answer the issue. Future good conduct will be implied condition of every grant of pension would mean that a pensioner who has been granted pension is expected to maintain a good conduct in future and in case a pensioner is convicted of serious crime or held guilty of grave misconduct, the Provincial Government has the power granted by Rule 43 (a) to withhold or withdraw the pension or any part of it and its decision has been made final and conclusive. So far as Rule 43 (b) is concerned, this also confers power upon the State Government to withhold or withdraw a pension or any part of it, either permanently or for a specified period (this expression is not provided in Rule 43 (a) ) if the pensioner is found, in a departmental or judicial proceeding, 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 (emphasis supplied by us). Under Rule 43 (b), the Government also has the right of ordering recovery from a pension of the whole or part of any pecuniary loss caused to Government on the basis of finding in departmental or judicial proceeding. 6. Before coming to the proviso which consists of three clauses (a), (b) and (c) along with an explanation provided after clause (c), it is obvious from a comparison of Rule 43 (a) with Rule 43 (b) that the former relates to future good conduct of a pensioner and the same may be invoked if he is convicted of serious crime or is held guilty of grave misconduct. The serious crime or grave misconduct under this provision, i.e. rule 43 (a) is not related to his conduct during service and/ or service rendered on re-employment. It is a conduct expected of a pensioner in future after he is granted a pension. Thus, there is clear distinction between the aim and object of Rule 43 (a) and that of Rule 43 (b). Both the provisions operate in different areas having different connotations. It is a conduct expected of a pensioner in future after he is granted a pension. Thus, there is clear distinction between the aim and object of Rule 43 (a) and that of Rule 43 (b). Both the provisions operate in different areas having different connotations. The decision under rule 43 (a) is not on account of any departmental proceeding or judicial proceeding instituted when the government servant was in service or instituted later in respect of an event which related to his service rendered before retirement or on re-employment. On the other hand, the purpose of Rule 43 (b) is clearly to enable the State government to continue or initiate a departmental or judicial proceeding in respect of omissions or commissions by a government servant done while he was in service. Such provision in the rules governing pension vests the State Government with necessary powers to maintain action against a retired government employee for his conduct while in service but subject to some restrictions mentioned in the proviso. The purpose of proviso is to safeguard pensioners or superannuated employees from loss of pension on account of belated disciplinary proceedings or judicial proceedings. On the other hand, the future good conduct mentioned in Rule 43 (a) is good conduct expected of every government servant even after superannuation. Such future conduct is not related to his service period at all. 7. Hence, the requirement of proviso (a) (ii) cannot apply to Rule 43 (a). Such provision in the proviso puts a restriction upon the power of the State government to initiate a departmental proceeding if not instituted while the government servant was in service, either before retirement or during reemployment. Such departmental proceeding, by virtue of the provision under consideration cannot be in respect of an event which took place more than four years before the institution of such proceeding. Rule 43 (a) comes into play after retirement and applies till pensioner breathes his last. There can be no question of time limitation for exercise of such power because this Rule is not at all connected with any departmental proceeding. Rule 43 (a) nowhere refers to any departmental proceeding instituted earlier or to be instituted later. Hence, it cannot be governed by proviso (a) (ii) to Rule 43 (b) as it can apply only to initiation of departmental proceeding by the Government after an employee has retired. 8. Rule 43 (a) nowhere refers to any departmental proceeding instituted earlier or to be instituted later. Hence, it cannot be governed by proviso (a) (ii) to Rule 43 (b) as it can apply only to initiation of departmental proceeding by the Government after an employee has retired. 8. Having answered the issue referred to the Division Bench, we refer the matter back to the learned Single Judge for hearing the writ petition for its disposal in accordance with law. 9. As the above order itself reveals we have not gone into the facts of the case.