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2013 DIGILAW 394 (PAT)

State of Bihar v. Ramanand Thakur

2013-03-19

AHSANUDDIN AMANULLAH, R.M.DOSHIT

body2013
Order Re. Interlocutory Application No. 6706 of 2012. This application under Section 5 of the Limitation Act is filed by the appellant State of Bihar for condonation of delay of 333 days occurred in filing the Letters Patent Appeal. 2. On the facts and in the circumstances of the case, the delay is condoned on condition that the appellant State of Bihar, within six weeks from today, pays a cost of Rs. 1000/- (One thousand) to the respondent – the writ petitioner. 3. Interlocutory Application stands disposed of in the above terms Re. Letters Patent Appeal No. 1595 of 2012 and Interlocutory Application No. 6707 of 2012. 4. Feeling aggrieved by the judgment and order dated 21st September 2011 passed by the learned single Judge in CWJC No. 3715 of 2007, the respondent State of Bihar has preferred this Appeal under Clause 10 of the Letters Patent. 5. For an incidence of financial irregularities, a disciplinary proceeding was initiated against the respondent – writ petitioner, then an Assistant Engineer in the service of the State of Bihar. Pending the disciplinary proceeding, the writ petitioner, on reaching the age of superannuation, retired from service in 2004. Since his retirement from service, the disciplinary proceeding was continued under Rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as “the Rules”). After conclusion of the enquiry, the writ petitioner, having been found guilty of the charges leveled against him, has been, under order dated 24th October 2007, visited with punishment of reduction in pension by 50%. It has been further directed that for the period of suspension he would not be entitled to any service benefit except the subsistence allowance. 6. Challenge to the aforesaid order in CWJC No. 3715 of 2007 has been upheld. The learned single Judge has affirmed the finding of guilt; however, has set aside the order of punishment. The learned single Judge is of the opinion that in exercise of power conferred by Rule 43(b) of the Rules, the State Government has power to recover the pecuniary loss suffered by it. Consequently, the learned single Judge has substituted the order of punishment by that of recovery of Rs. 2,60,962.86, the actual loss alleged to have been suffered by the State Government. Feeling aggrieved, the State of Bihar has preferred this Appeal. 7. It is indisputable that the respondent was involved in financial irregularities. Consequently, the learned single Judge has substituted the order of punishment by that of recovery of Rs. 2,60,962.86, the actual loss alleged to have been suffered by the State Government. Feeling aggrieved, the State of Bihar has preferred this Appeal. 7. It is indisputable that the respondent was involved in financial irregularities. He could, however, not been visited with appropriate punishment while he was in service. Once, the writ petitioner retired from service on reaching the age of superannuation, it is Rule 43(b) of the Rules which would be attracted. Rule 43(b) of the Rules reads as under:- “43. (a) ………. (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 re-employment after retirement: Provided that – ……….” 8. It is not the complaint of the respondent that any of the conditions mentioned in the proviso thereof has been violated. The only question is whether the State Government could have punished the respondent by reducing the pension. 9. The aforesaid Rule 43(b) of the Rules in no uncertain terms empowers the State Government to withhold or withdraw the pension either in full or in part in case the pensioner is found guilty of grave misconduct in a departmental proceeding. The said Rule 43(b) also empowers the State Government to withhold or withdraw whole of the pension or any part of it, if any pecuniary loss is caused to the Government due to the misconduct or negligence on the part of the pensioner during his service. 10. In the present case, the charge was that of financial irregularities and a pecuniary loss of Rs. 2,60,962.86 to the State Government. At the end of the disciplinary proceeding, both the charges stood proved. In view of the said guilt established against the respondent – the writ petitioner, the State Government, under order dated 10th April 2007, visited the respondent with the punishment of withholding 50% of the pension forever. 11. 2,60,962.86 to the State Government. At the end of the disciplinary proceeding, both the charges stood proved. In view of the said guilt established against the respondent – the writ petitioner, the State Government, under order dated 10th April 2007, visited the respondent with the punishment of withholding 50% of the pension forever. 11. The learned single Judge, having affirmed the finding of guilt, has interfered with the order of punishment holding that the State Government has power to recover the actual monetary loss suffered by it. 12. We are in respectful disagreement with the learned single Judge. As recorded hereinabove, the aforesaid Rule 43(b) of the Rules does empower the State Government to withhold or withdraw the pension in whole or in part if the pensioner is found to be guilty of a grave misconduct and also to recover the pecuniary loss suffered by the State Government due to the misconduct or negligence of the pensioner while he was in service. In the present case, though the respondent was charged for pecuniary loss also and though the said charge was proved against the respondent, the State Government chose not to recover the said amount from the respondent. In our view, unless the learned single Judge found the punishment of withholding part of the pension to be harsh or not commensurate to the guilt proved, there was no occasion to interfere with the order of punishment. The act of misconduct amounting to financial irregularities cannot be viewed liberally. The punishment of withholding of 50% of the pension imposed upon the respondent cannot be said to be too harsh or not commensurate to the guilt proved. The said order did not call for interference. 13. Learned advocate Mr. Tara Nath Jha has appeared for the respondent – the writ petitioner. He has relied upon Article 226 of the Constitution to buttress his argument that the learned single Judge was within his bounds in confining the recovery to the actual pecuniary loss suffered by the State Government. 14. We see no merit in the above submission of Mr. Tara Nath Jha. 15. Appeal is allowed. The impugned judgment and order dated 21st September 2011 passed by the learned single Judge in CWJC No. 3715 of 2007 is set aside. Interlocutory Application stands disposed of. 16. 14. We see no merit in the above submission of Mr. Tara Nath Jha. 15. Appeal is allowed. The impugned judgment and order dated 21st September 2011 passed by the learned single Judge in CWJC No. 3715 of 2007 is set aside. Interlocutory Application stands disposed of. 16. The respondent has made a specific submission that the order of suspension made on 25th September 1997 was not communicated or was not implemented until 4th August 1998 and the respondent continued to serve as usual. The respondent was, therefore, entitled to the salary for the said period. Nevertheless, on his retirement from service, the amount of salary in excess of subsistence allowance for the said period was recovered from the leave encashment available to the respondent. 17. The statement has not been denied by the State Government. A vague defense has been taken that all actions have been taken in accordance with the rules and regulations. 18. In absence of specific denial, we do agree that the respondent having served during the period from 25th September 1997 to 4th August 1998, he was entitled to the salary for the said period. The amount recovered from the respondent as alleged will be refunded to the respondent within six weeks from today. In case the State Government fails to remit the aforesaid amount recovered by it from the leave encashment amount, the State Government will be liable to refund the said amount with interest at the rate of 8% per annum from the date of recovery till the date of refund. 19. Subject to the above direction, CWJC No. 3715 of 2007 is dismissed.