Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13815 of 2007 ====================================================== Izharul Haque , aged about 65 years, Retired Assistant Electrical Engineer, Electric Supply Sub -Division Motihari (Rural), son of Late Md. Maharul Haque, Resident of village + P.O. – Chandanbara, P.S. Dhaka, District - East Champaran. Versus .... .... Petitioner 1- The Bihar State Electricity Board through its Chairman, Vidyut Bhawan, Bailey Road, Patna. 2- The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3 – Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. R.K.Sinha For the Respondent/s : Mr. Vijay Kumar Verma ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 5 20-09-2013 Heard Sri R.K. Sinha, learned counsel for the petitioner and Sri Vijay Kumar Verma, learned counsel appearing on behalf of all the respondents /Bihar State Electricity Board (hereinafter referred to as “Board”). The petitioner, while invoking writ jurisdiction of this court under Article 226 of the Constitution of India, has prayed for quashing of order communicated vide memo no. 1360 dated 8.5.2003 (Annexure – 1 to the writ petition) issued by respondent no. 3 /Joint Secretary, Bihar State Electricity Board through which 1 % pension of the petitioner has been directed to be deducted. It has been submitted by learned counsel for the
Legal Reasoning
Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 2/9 petitioner that petitioner retired as Assistant Electrical Engineer from Bihar State Electricity Board and after retirement he was asked to explain as to why 2% pension may not be deducted permanently. After retirement show cause notice was issued vide letter no. 1767 dated 2.8.2002 on an allegation that he had not monitored the meter reading properly, and as such, the Board had suffered loss. It has been argued that though the petitioner had retired, without initiating any proceeding either under Rule 43(b) of the Bihar Pension Rules or Rule 139 of the Bihar Pension Rules, he was subsequently asked vide Annexure -5 to the writ petition i.e. Memo No. 652 dated 25.2.2003 as to why 2% pension may not be deducted permanently. The petitioner after receipt of the first show cause notice had given his reply and explained that it was not the responsibility of the petitioner to monitor / examine the meter, which was closed. It was further submitted that even before issuance of show cause notice to the petitioner the loss amount i.e. Rs. 19,545/- was already recovered from the consumer, and as such, it was neither a case of pecuniary loss suffered by the Board nor there was any charge of serious misconduct against the petitioner. On the contrary, without any cogent reason and without initiating departmental proceeding punishment order was imposed vide Annexure -1 to Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 3/9 the writ petition and 1% pension has been permanently deducted. Learned counsel for the petitioner in support of his argument has relied on a division bench judgment of this court reported in 1994(1) PLJR 809 (Md. Idris Ansari Vs. The State of Bihar & Others.). He submits that even in the said case regular departmental enquiry was initiated but this court keeping in view the fact that order of punishment was in the teeth of Rule 43(b) and 139 of the Bihar Pension Rules, has set aside the same. He has specifically referred to paragraph no. 6 of the said judgment , which is quoted hereinbelow:- “6. There is no doubt that Rule 139 provides that if the service of a Government servant, who has superannuated, has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. However, Rule 139(c) makes it clear that the State government may revise the 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 Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 4/9 part while in service. In the instant case it is not the case of the State that the service record of the petitioner showed that his service was not satisfactory. In fact, the show cause notice (Annexure - 9) issued to the petitioner under Rule 139 of the Bihar Pension Rules refers to specific acts of misconduct alleged against the petitioner in connection with the execution of works in the year 1986-87. There are more than one reason to hold that in the facts of this case the proceeding under Rule 139 was not maintainable. Firstly, if the Government whished to reduce the pension payable to the petitioner on the ground that he had committed an act of misconduct, the case being squarely covered by Rule 43(b), a proceeding could have been initiated, if the incident giving rise to the proceeding had taken place within four years of the date of the institution of the proceeding. It is conceded in the show cause notice itself (Annexure -9) that the proceeding under Rule 43(b) could not be initiated in the facts of the Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 5/9 case. Secondly, Rule 139(b) provides for the order that the sanctioning authority may pass, if the service of a Government servant is not found to have been thoroughly satisfactory. Rule 139(c) empowers the State Government to revise an order passed by subordinate authorities in regard to pension if the State Government is satisfied that the service of the petitioner was not thoroughly satisfactory, or that there was proof of grave misconduct on his part while in service. Even if the power to be exercised under Rule 139(b) is read in the light of the provision of Rule 139(c) , the State Government can reduce the pension payable to a retired Government servant if (a) they are satisfied that the service of the petitioner was not thoroughly satisfactory or (b) there was proof of grave misconduct on his part while in service. So far as the first condition is concerned, the same is not fulfilled, because it is not the case of the State that the record of service of the petitioner was unsatisfactory. So Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 6/9 far as the second condition is concerned, the same is also not fulfilled, because there is no proof of grave misconduct on the part of the petitioner while in service. Neither in a court of law nor in a departmental proceeding had any charges been proved against the petitioner. The allegations remained mere allegations and they were sought to be made use of for the purpose of exercise of power under Rule 139(a) and (b) of the Rules. In the absence of proof of grave misconduct, as distinguished from mere allegations of misconduct, the power under rule 139(a) and (b) could not be exercised by the State Government. In these circumstances, we have no doubt that even if a wider meaning is given to Rule 139(b) by reading the said rule in the light of Rule 139(c), the power conferred thereby is not wide enough to confer on the Government jurisdiction and authority to reduce the pension of a retired Government servant without proof of grave misconduct in the absence of unsatisfactory service record. Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 7/9 Such grave misconduct may either be proved before a court of law, or even in a departmental proceeding. That not being the case, the impugned order reducing the pension of the petitioner is wholly unjustified. He further submits that the division bench judgment was subsequently approved by the Supreme Court in 1995(2) PLJR SC 51 ( State of Bihar and Ors. vs. Mohd. Idris Ansari). According to learned counsel for the petitioner there was no reason for imposing such punishment that too after retirement. In this case a counter affidavit has been filed on behalf of respondent /Board. Of-course, it has not been disputed that no regular departmental enquiry was initiated in terms of Rule 43(b) of the Bihar Pension Rules, but it has been justified that order impugned has been passed in terms of Rule 139 (C) of the Bihar Pension Rules. It has further been indicated that after the order of disciplinary authority the petitioner preferred an appeal , which was rejected and even after rejection of the appeal the petitioner had again filed an appeal, which is still under consideration. It is true that after the punishment order the petitioner preferred an appeal before the competent authority, however, the appeal was Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 8/9
Decision
dismissed vide Annexure -8 to the writ petition. The dismissal of the appeal assigns no reason. Only four line order has been passed, and as such, order of the appellate authority is also required to be set aside. After the rejection of the appeal it is true that petitioner had filed a mercy appeal dated 8.8.2007 but in the counter affidavit as stated, the authority concerned had not taken any decision on the appeal. Only a vague statement has been made in the counter affidavit that it was under consideration. Keeping in view the fact that petitioner retired with effect from 31.2.2001 and no regular departmental proceeding was initiated in terms of Rule 43(b) of the Bihar Pension Rules and only on the basis of explanation punishment has been imposed, the court is of the opinion that the present case is squarely covered by the Division Bench judgment of this court in Md. Idris Ansari Case (Supra). Keeping in view the fact that petitioner retired in the year 2001 and of-course his appeal is pending and no decision has been taken till date, it would not be appropriate for this court to remit back the matter to the competent authority for reconsidering the mercy appeal of the petitioner and as such, in view of the facts and circumstances it is required to interfere with the order and the impugned order i.e. order contained in Annexure -1 to the writ petition as well as the order of the appellate authority i.e. Patna High Court CWJC No.13815 of 2007 (5) dt.20-09-2013 9/9 Annexure - 8 to the writ petition are hereby set aside and the writ petition stands allowed. (Rakesh Kumar, J) Praful/-