Sudhir Kumar Katriar and Kishore K. Mandal, JJ.
1. The State of Bihar has preferred this appeal in terms of Clause 10 of the Letters Patent of the Patna High Court, and is aggrieved by the judgment and order dated 25.8.1999, passed in C.W.J.C. No. 11619 of 1998 (Dinesh Prasad v. The State of Bihar and Ors.), whereby the writ petition was allowed and the separate orders passed under Rules 43(b) and 139(a)(b) of the Bihar Pension Rules 1950 (hereinafter referred to as the '1950 Rules'), imposing punishment of deprivation of pension to the extent of 50% for a period of five years, have been set aside. We shall go by the description of the parties occurring in the writ petition.
2. A brief statement of facts is essential for the disposal of this appeal. The writ petitioner (the respondent herein) was posted as an Executive Engineer in the Bagmati Nagar Project, Sitamarhi, which was then under the Irrigation Department, and has since 1988 been converted into the Department of Water Resources. The petitioner was so posted from 7.1.1978 to 3.7.1981. The State Government received adverse reports with respect to the working of different irrigation projects and/or anti-flood measures during the period 1980-87. A vigilance enquiry was conducted which had submitted it report on 2.1.1987. This was followed by an enquiry by the Finance (Audit) team, and the report was submitted on 15.11.1990. The reports prima facie showed complicity of the petitioner and 32 other functionaries, who had been posted there during that period. Accordingly, memo of charges dated 21.11.1992, was served on the petitioner for appropriate action in terms of Rule 55A of the Civil Services (Classification, Control and Appeal) Rules 1930 (hereinafter referred to as the '1930 Rules').
2.1) The petitioner had provisionally submitted his cause on 11.2.1993 (Annexure-2), wherein it was stated that the events were alleged to have taken place more than 12 years ago and, therefore, it is not possible to submit an exhaustive show-cause without inspection of the relevant records. He further stated that the provisional show-cause was being submitted on the basis of his re-collection. He had further stated that he had already received letter dated 20.1.1993, offering him inspection of the original records but eventually he was denied inspection thereof. The petitioner superannuated with effect from 31.12.1994, from the services of the Bihar Government, while functioning as Superintending Engineer.
2.2) By order dated 13.8.1998 of the State Government, the proceedings under Rule 55A of 1930 Rules were converted into one under Rule 43(b) of 1950 Rules. On a consideration of the materials on record, the State Government passed the impugned order dated 10.9.1998 (Annexure-6), whereby the petitioner has been deprived of his pension to the extent of 50% for a period of five years from the date of the order. This was followed by another show-cause dated 11.2.1999 (Annexure-8), from the respondent authorities to the petitioner calling him upon to show-cause as to why appropriate order reducing his pension in terms of Rule 139(a) (b) be not passed. The petitioner had sent his communication dated 27.2.1999 (Annexured-9), wherein he had stated that the matter may await decision in the present C.W.J.C. No. 11619 of 1998, notwithstanding which the State Government passed the order dated 3.5.1999 (Annexure-7), whereby a like order has been passed in terms of Rule 139(a) (b) of 1950 Rules.
3. Aggrieved by the twin action against the petitioner, he preferred the present C.W.J.C. No. 11619 of 1998, which has been allowed by the learned Single Judge on the ground that the proceedings under Rule 43(b) was hit by the bar of limitation engrafted in Rule 43(b). It has secondly been held that the respondent authorities have taken inordinately long time in passing the impugned order. It has further been held that the petitioner was not afforded reasonable opportunity to defend himself in the departmental proceeding. The impugned order does not state reasons for the punishment. Consequently, both the orders have been quashed.
4. While assailing the validity of the impugned order, learned Counsel for the respondents (the appellants herein) has submitted that, in the facts and circumstances of the case, the impugned action is not hit by the bar of limitation. She has also made efforts to satisfy us that unexplained delay has not intervened. She has next submitted that adequate opportunity was afforded to the petitioner to meet the allegation against him. She has lastly submitted that, in a proceeding for minor penalty detailed reasons need not be assigned.
5. Learned Counsel for the writ petitioner (the respondent herein) has supported the impugned order. He submits that the principles of natural justice were not fully observed, records and the relevant documents were not made available to him for his inspection enabling him to submit an effective show-cause, as a result of which the impugned action is in violation of the mandatory provisions of Rule 55-A of 1930 Rules. He has relied on the following reported judgments:
(i) : (1973)ILLJ435SC , paragraphs 6, 8 and 9 (Shadi Lal Gupta v. State of Punjab).
(ii) 1983 P.L.J.R. 92, paragraph 12 (Dr. Rabindra Nath Singh v. The State of Bihar and Ors.).
6. We have perused the materials on record and considered the submissions of learned Counsel for the parties. We agree with the contention advanced by the learned Government Counsel that the proceedings are not hit by the bar of limitation engrafted in Rule 43(b) of 1950 Rules. The proceedings against the petitioner will be deemed to have commenced on 21.11.1992, the date on which the memorandum of charges was served on him. He superannuated from the services of the Bihar Government with effect from 31.12.1994. Obviously, therefore, the proceedings had commenced while he was still in service, at a stage when the provisions of Rule 43(b) were inapplicable. Therefore, the rigors of Rule 43(b) could not have been attracted to the facts and circumstances of the case. Therefore, the law of limitation in terms of Rule 43(b) is inapplicable to the present case. Law is well settled that, if the proceedings had commenced while the employee was still in service, the same shall by automatic operation be converted into one under Rule 43(b) after the employee had superannuated. However, as a matter of abundant precaution, the respondent authorities issued the order on 13.8.1998, converting the aforesaid proceedings under 1930 Rules into one under Rule 43(b) of 1950 Rules. The contention is, therefore, upheld.
7. We respectfully disagree with the second reason assigned in the order of the learned writ court that inordinate delay has intervened in the proceedings. It related to a continuous project covering the period 1980-87. While the scheme was in progress, the respondent authorities had received information about the irregularities and had immediately instituted vigilance enquiry. The report was submitted on 2.1.1987, followed by a detailed Finance (Audit) team report of 15.11.1990. This was followed by the subsequent steps which have been stated hereinabove. We are, therefore, of the view that the proceedings do not suffer from unexplained delay.
8. The next two reasons assigned in the order of the learned writ court deserve serious consideration. It is stated that the petitioner was never given any opportunity to defend himself in the departmental proceeding. It appears that, after the complicity of the petitioner and others in the irregularities had been noticed, the State Government had served the memorandum of charges dated 21.11.1992 (Annexure-1) on the petitioner. This was followed by communication dated 20.1.1993, whereby the respondent authorities had offered to the petitioner the facility of inspection of the original records. The petitioner did report to the concerned office and the concerned authorities on 9.2.2003, on which date the documents were not available in the office. It further appears from the communication dated 9.2.1993, from the concerned Executive Engineer to the petitioner who had in the meanwhile been promoted to the post of Superintending Engineer, that he had not received full charge of the documents and, therefore, he was unable to offer the same for inspection. This was followed by letter dated 10.2.1993, from the concerned Superintending Engineer to the Department of Water Resources, stating therein that the documents could not be made available to the petitioner for his inspection. It is relevant to state that, on our request, the learned Government Counsel has produced the original records for our perusal and have also been made available to the learned Counsel for the petitioner for inspection. The original records affirm the same position. The department does not seem to have given any attention to the said communication dated 10.2.1993, and the grievance of the petitioner remained unattended and unredressed. It is thus the evident position that, in spite of the State Government's intention to make available the original records for inspection, the same could not be made available to the petitioner. It appears to be a possible situation that the records had been transferred to the Vigilance Department, then to the Finance (Audit) team and was in their possession because the matter had thereafter been handled by the authorities in Patna.
9. The proceedings were initiated against the petitioner in terms of Rule 55A of 1930 Rules which is reproduced hereinbelow for the facility of quick reference:
55-A. Without prejudice to the provisions of Rule 55, no order imposing the penalty specified in Clauses (i), (ii) or (iv) of Rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court-martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed:
Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.
It is manifest on a plain reading of the rule that, before action thereunder is taken, adequate opportunity of making a representation has to be afforded to the delinquent employee, and the same has to be taken into consideration before the order is passed. In view of the aforementioned discussion, it is evident that the petitioner was unable to make an effective representation. The petitioner was perfectly justified in raising the plea that the issues related to events taking place eleven years earlier and, therefore, an effective representation was not possible without inspection and perusal of the original records. It is not possible to remember the details which had happened 11 years earlier covering a period of 15 months, the period for which the petitioner was posted at that place. We are of the view that this was not a mere hyper-technical objection, has in fact adequate force, and is fit to be sustained. Once it is found that the petitioner was not afforded adequate opportunity of making an effective representation, it follows as a matter of corollary that the State Government had considered a half-baked representation. The impugned action is evidently the product of infraction of Rule-55A.
10. We must deal with the Division Bench judgment of this Court in Dr. Rabindra Nath Singh v. The State of Bihar and Ors. (supra) relied on by learned Counsel for the petitioner, paragraph 12 of which is reproduced hereinbelow for the facility of quick reference:
12. Before I part with the judgment, I want to make it clear that fair play is the soul of natural justice. If any prejudicial material is used by the Disciplinary authority against the delinquent employee the latter must have knowledge of the said material in order to file an effective representation for the consideration of disciplinary authority. The charge must not lack in particulars and must furnish sufficient details to enable the delinquent employee to prepare his defence. It should also not be lost sight of that the delinquent employee is called to answer charges in the year 1977 with respect to matters, said to have occurred between the years 1959 and 1963.
The observations and its spirit do support the petitioner. We may, however, sound a note of caution that the same was a case for major penalty where a detailed procedure has to be followed. The present one is a case of minor penalty after summary procedure.
11. We have given our thoughtful consideration to the matter as to the consequences that flow from our conclusions hereinabove. We have two options in the alternative. We either grant liberty to the respondent authorities to take fresh action after observing the provisions of Rule 55-A, or finally close the matter. As stated hereinabove, the petitioner was posted at Sitamarhi from 7.1.1978 to 3.7.1981. 27 years have lapsed since then. Secondly, he retired from the service of the Bihar Government with effect from 31.12.1994, presumably after completing 58 years of age. 13 years have lapsed since then. The matter has become quite old.
12. In the facts and circumstances of the present case, therefore, we are of the view that it would be a better exercise of discretion to close the matter finally.
13. The appeal is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. It goes without saying that the petitioner shall be entitled to refund of the amount already recovered from him.