Letters Patent Appeal No. 66 of 2006 · High Court · 2008

Order under appeal. Learned counsel for the appellant submitted that Rule 43(b) of the said Rules authorized the State to exercise power thereunder only in case of proven guilt of misconduct or in case loss caused to the State stands proved and accordingly once the State has exercised power under the said Rule and thereby has taken a decision to stop a part of the pension payable to the appellant, the State cannot take steps to recover the loss sustained by the State as had been held out in the order dated 1st April,

8. Right to recover money lost to the plaintiff by reason of an action or inaction on the part of the defendant is a common law right and accordingly if the State has sustained any loss for any action or inaction on the part of the appellant, the State is entitled to take such recourse to law as it may be advised for the purpose of recovery of the same. Unless, there is an expressed bar for exercise of such common law right or withdrawal of such right by an expressed provision of law, or unless the same can be gathered by necessary implication, it cannot be inferred that if the 5 State has a right of withholding a part of the pension payable to the appellant for an action or inaction on his part causing loss to the State, the State cannot recover money due to the State for the loss sustained by it for the self same action or inaction on the part of the appellant. Rule 43(b) does not impose any such bar, nor does it withdraw any such common law right of the State.

9. Rule 43(b) entails forfeiture of full pension or part thereof in the event there is proven misconduct or proven loss caused to the State. In other words, Section 43(b) entails forfeiture of a part or full pension of an employee when it is established that the employee has not been able to conduct himself in the manner he was required to conduct or when it is established that any action or inaction on his part has caused loss to the State. There is no direction in the said Rule that withholding should be commensurate with the loss sustained.

10. However, once a disciplinary proceeding, which stands converted into a proceeding under Rule 43(b), is concluded, the matter cannot be reopened for the said Rules do not provide any power to that effect. A look at the order dated 26th February, 2002 would amply demonstrate that the disciplinary proceeding initiated against the appellant during the time he was in service and subsequently converted into a proceeding under Rule 43(b) upon his superannuation, was finally concluded by the order dated 26th February, 2002 and therefore nothing could be added 6 to or subtracted therefrom by any subsequent action as was purported to be done by the order dated 1st April, 2004.

11. The learned counsel for the appellant did not urge before us that the order dated 26th February, 2002 would have only prospective effect and accordingly cannot have any implication in relation to payments already made to the appellant on account of gratuity and pension.

12. In those circumstances and in particular there being nothing to suggest that the guilt of misconduct has not been proved against the appellant, we see no reason to interfere with the order dated 26th February, 2002 and accordingly uphold the judgment and order under appeal to that extent.

13. However, having regard to the conclusion that the proceedings stood finally concluded by the order dated 26th February, 2002, we are unable to uphold the judgment and order under appeal by which the order dated 1st April, 2004 has been upheld and accordingly, allow the appeal to that extent and set aside that part of the judgment and order under appeal and at the same time allow the writ petition by quashing the Order dated 1st April, 2004. There shall be no order as to costs. (Barin Ghosh, J.) (C.M. Prasad, J.) Patna High Court, The 21st August, 2008. Mkr/NAFR 7