Judgment:
Chandramuli Kr. Prasad, J.
1. This application has been filed for quashing the order dated 13-3-1999 (Annexure-1) whereby the petitioner has been visited with the penalty of compulsory retirement from the Board's service and recovery of 20% amount from the retiral benefits. By the said order, it has also been decided that the petitioner shall not be entitled for any other monetary benefits other than the subsistence allowance but the period of suspension shall be treated as service spent on duty for the purpose of retiral benefits. Further prayer of the petitioner is to quash the enquiry report dated 4-2-1999.
2. Facts which are necessary for the decision of the present writ application are that during the relevant time petitioner was posted as Accounts Assistant in the Rural Electrical Division, Darbhanga. Consequent upon the reorganisation of Rural Electrical Circle/Division/Sub-Division, the petitioner by order dated 24-5-1988 (Annexure-4), was transferred to Darbhanga Electrical Circle Darbhanga. By the said order, beside the petitioner, other workmen were also transferred. While the petitioner was working as Accounts Assistant, Revenue in Darbhanga Electrical Circle, on retirement of one Niranjan Prasad Sinha who was Accountant, Establishment, the latter was asked to handover the charge to the petitioner. It is the stand of the petitioner that he took the charge of the post of Accounts Assistant, Establishment very reluctantly. While the petitioner was posted as such, a criminal case i.e. Lalit Narain Mishra University P.S. Case No. 132 of 1995 was registered for defalcation of the amount of the Bihar State Electricity Board, hereinafter referred to as the Board, and the petitioner's name did not figure in the first information report. Lateron, by order dated 1-4-1997 (Annexure-6), the petitioner was put under suspension as the was found prima facie guilty of the charge of defalcation of Board's money fraudulently as also for dereliction of duty which in the opinion of the respondents Board is a misconduct under Clause 29-B(c) of the Certified Standing Order, namely, Bihar State Electricity Board Patna Standing Order, hereinafter referred to as the Standing Order.
3. Petitioner challenged the order of suspension by filing a writ application before this Court which was registered as CWJC No. 9114 of 1997 (Jai Ballabh Mallick v. The State of Bihar and Ors.). Before the aforesaid writ application could be finally disposed of petitioner was served with the memo of charge dated 7-4-1998. When the writ application was taken upon 16-11-1998, this Court taking into account the fact that the departmental proceeding has been initiated and the petitioner has been served with the charges and submitted his reply also, disposed of the writ application with a direction to the respondents to conclude the departmental proceeding within three months. In the departmental proceeding, five charges were levelled and the enquiry officer, in its report dated 4-2-1999 held the petitioner guilty of all the charges but held that charge No. 4 has not been proved. On receipt of the enquiry report, the disciplinary authority gave second show cause notice dated 15-2-1999 (Annexure-3) against the proposed punishment. The petitioner filed its reply and on consideration of the same, the disciplinary authority passed the impugned order.
4. It is relevant here to State that the first charge leveled against the petitioner is that he took charge of the Accountant, Establishment on account of superannuation of the Accountant, Establishment and worked on the said post in August, 1994 and September, 1994 and then from March 1995 to June, 1995 in an absolutely irresponsible manner. Second charge pertains to gross negligence of duty leading to defalcation of a huge amount by Accounts Assistant Sri Laxmai Narain Dutta. The third charge pertains to the Petitioner's failure to prevent the defalcation and his failure to inform the office in this regard. Fourth charge relates to defalcation of Rs. 1.80 lacs by said Sri Dutta and according to the charge, same was only possible with the help of the petitioner. The fifth charge narrated that the aforesaid conduct of the petitioner comes within the mischief of gross misconduct as provided under Clause 29-B(c) of the Standing Order. The enquiry officer held the petitioner guilty of all the charges excepting charge No. 4.
5. Mr. Subhro Sanyal, appearing on behalf of the petitioner submits that the findings recorded by the Inquiry Officer that the petitioner had committed gross misconduct as contemplated under Clause 29-B(c) of the Certified Standing Order, is erroneous in law. He submits that the charge No. 4 which is in relation to defalcation of a sum of Rs. 1.80 lacs, has not been found to have been proved and as such, Clause 29-B(c) of the Standing Order, is not attracted. He points out that to bring the action of a delinquent employees within 29-B(c) of the Standing Order, theft, fraud or dishonesty in connection with the Boards property or business is to be proved.
6. Mr. R.K. Dutta, appearing on behalf of the respondents Board submits that on account of negligence and dereliction of duty, a huge amount of Rs. 1.80 lacs was defalcated and as such, respondents Board rightly held that the petitioner had committed gross misconduct as provided under Clause 29-B(c) of the Certified Standing Order. He further submits that it was on account of gross negligence in performing the duty by the petitioner that Shri Dutta the Accounts Assistant was able to defalcate a huge amount and as such, the action of the petitioner is also a misconduct under Clause 29-B(c) of the Standing Order.
7. Having appreciated the rival submissions, I do not find any substance in the submission of Shri Sanyal. Clause 29-B(c) (i) of the Certified Standing Order which is relevant for the purpose, reads as follows:
'29-B. Misconduct-
Subject to the other provisions of this Standing Order the following acts, or omissions by a workman shall be deemed to be misconduct for which he shall be liable to dismissal, discharge, stoppage of promotions for a specified period reduction in rank or transfer without T. A.
xxx xxx
(c) Theft, fraud or dishonesty in connection with the Board's property or business.
xxx xxx
(i) Habitual slackness or habitual negligence or gross negligence in the performance of duty.
XXX XXX
The Inquiry Officer has found the petitioner guilty of all the charges excepting charge No, 4. The charges for which the petitioner has been held guilty pertain to gross negligence in the discharge of duty, fraudulent act resulting into defalcation of a huge amount from the Board's fund resulting into theft of money by Laxmi Narain Dutta. Thus, on the findings of the Inquiry Officer misconduct as provided under Sub-clauses (c) and (i) of Clause 29-B of the Certified Standing Order, are clearly attracted. I am of the opinion that in case the finding recorded by the Inquiry Officer brings the action of the delinquent employee within the mischief of one or the other clauses of the Certified Standing Order, the order of punishment shall not be vitiated only on account of the fact that clause mentioned by the Inquiry Officer or the disciplinary authority is not attracted but some other clause is attracted. Here, in the present case, I am of the opinion that petitioner's misconduct comes within the Clauses 29-B(c) of the Certified Standing Order as found by the inquiry Officer and the disciplinary authority.
8. Mr. Sanyal then submits that the imposition of penalty of compulsory retirement and deducting 20% of the defalcated amount from the retiral benefits is not permissible to be imposed as those penalties are not provided in the Certified Standing Order. He points out that an employee can be visited with one or the other penalties which have been provided in the service rules by which he is governed.
9. Mr. R.K. Duuta, however, appearing on behalf of the respondents Board submitted that the order of compulsory retirement is in sum and substance and order of discharge and the order directing for deducting 20% of the defalcated amount, from the post retiral dues of the petitioner, is permissible under Rule 43 (b) of the Bihar Pension Rules and in that view of the matter, the order impugned is not fit to be interfered with by this Court in exercise of its writ jurisdiction.
10. It is common ground that the petitioner is governed by the Certified Standing order and Bihar Pension Rules also applies to him. Clause 29-B of the Certified Standing Order quoted above, inter alia, provides that the acts or omissions enumerated therein shall be a misconduct for which the delinquent shall be liable to be dismissed, discharged, reducted in rank or transferred without T.A. or can be visited with the penalty of stoppage of promotion for specified period. Thus, the penalty of compulsory retirement or deduction of 20% of the defalcated amount from the retiral dues, are not the penalties provided in the Certified Standing Order. Thus, the petitioner has been visited with the penalty which has not been provided under the provisions of the Certified Standing Order by which he is governed. This renders the order imposing punishment bad in law. Reference, in this connection, can be made to a Division Bench judgment of this Court in the case of Keshav Pandey v. The State of Bihar and Anr., 1979 (2) S.L.R. 196 in which it has been held as follows:
'If 'compulsory retirement' is not one of the punishment enumerated in rule 824, the Inspector-General could not have passed the impugned order, nor he could have exercised his jurisdiction under the third proviso to Rule 853. Mr. K.P. Verma, learned Government Advocate appearing on behalf of the respondents, contended that 'compulsory retirement' simplicitor is not a punishment, and in the instant case also this order was not passed by way of punishment. He draws our attention to the words 'and pass such order as he may deem fit' occurring in the third proviso to Rule 853. He, therefore, submitted that the Inspector-General had ample jurisdiction to pass the order according to his discretion on the facts and in the circumstances of the instant case. In our opinion, this submission of the learned Government Advocate cannot be accepted in view of the fact that the third proviso has to be read along with the provisions constrained in Rule 824 of the Manual. The discretion has to be exercised by the Inspector-General within the limitation prescribed by the rule-making authorities under Rule 824; he could not have gone beyond that. Moreover, in the instant case, we are of the opinion that the impugned order contained in Annexure '6' is obviously by way of punishment.'
11. This point also came up for consideration before the Supreme Court in the case of State Bank of India and Ors. v. T.J. Paul, (1999) 4 SCC 759. In the said case, it has been observed as follows:
'(18) But this does not conclude the matter. The learned Senior Counsel for the respondent, Shri P.P. Rao is right in contending that the appellate authority, once it came to the conclusion that the punishment of dismissal was not warranted in the facts of the case, it could not have awarded the punishment of 'removal' which was not one of the enumerated penalties under para 22 (v) of the rules. In fact, the learned Single Judge also adverted, to this aspect. If one reads the order of the appellate authority, it is clear that the said authority went by Rule 49 (g) of the State Bank of India (Supervising Staff) Service Rules which admittedly, is not applicable to charges pertaining to the period 1977-81 when the rules of Cochin Bank applied. The amalgamation of Bank of Cochin with State Bank of India took place only on 27-4-1985. It may be that the rules of the State Bank of India provided for a punishment of removal, but in the rules relating to penalties for 'major misconduct' in para 22 (v) of the rules applicable to the employees of Bank of Cochin, removal is not one of the enumerated punishments which could be imposed. The said punishment is not the same things as 'condoning misconduct and merely discharging from service' as provided in para 22(v)(e) of the said rules.
'(19) xxx Here the Court is not interfering with the punishment awarded by
the employer on the ground that in the opinion of the Court the punishment
awarded is disproportionate to the gravity of the misconduct. Here, the gradation
of the punishments has been fixed by the rules themselves, namely, the rules of
Bank of Cochin and the Court is merely insisting that the authority is confined to
the limits of its discretion as restricted by he rules. Inasmuch as the rules of
Bank of Cochin have enumerated and listed out the punishments for 'major
misconduct', we are of the view that the punishment of 'removal' could not have
been imposed by the appellate authority and all that was permissible for the
Bank was to confine itself to one or the other punishment for major misconduct
enumerated in para 22(v) of the rules, other than dismissal without.'
Submission of Shri Dutta that the order of compulsory retirement be read as
discharge as the effect of both the punishment is one and the same, does not appeal
to me at all. He points out that under Clause 9 of the Certified Standing Order, on
termination of employment due to discharge, retiral benefits are available so in the
case of compulsory retirement. 'Compulsory retirement and discharge' are
expressions well known in service jurisprudence and carry definite meaning and is
not synonymous to each other. Hence, I am not inclined to treat the order of
compulsory retirement as that of discharge as contended by Shri Dutta.
12. It is relevant here to State that the petitioner has not only been visited with the penalty of compulsory retirement but 20% of the defalcated amount has been directed to be deducted from his post retiral dues. Rule 43(b) of the Bihar Pension Rules authorises the Board to recover from the pension the whole or part of any pecuniary loss caused to it if the pensioner is found in a departmental proceeding to have been guilty of gross misconduct, or have caused pecuniary loss to the Board by misconduct or negligence. Here, the employment of the petitioner has come to an end on account of the order of the compulsory retirement and in the facts of the present case, Rule 43(b) of the Bihar Pension Rules, shall not be attracted.
13. It seems that the respondents Board while passing the impugned order had in its mind the punishment as provided under Rule 49 of the Civil Services (Classification Control and Appeal) Rules which inter alia provides the punishment of compulsory retirement and recovery from the pay of whole or part of any pecuniary loss caused to the Government by negligence or breach of orders. It is not in dispute that the provisions of the said rule does not apply in the case of the petitioner. In view of the discussions aforesaid, the impugned order of punishment dated 13-3-1999 (Annexure-1) cannot be allowed to stand and the same is set aside. The respondents Board is directed to pass order afresh bearing in mind the observations made above. The consequential benefits shall abide by the decision of the Board.
14. In the result, the writ application is allowed. The impugned order is quashed with the observation aforesaid. No costs.