Shiva Kirti Singh and J.N. Singh, JJ.
1. Heard learned Counsel for the appellant and learned Counsel for the State.
From the records of this L.P.A. it appears that after dismissal of the writ petition filed by the appellant by order under appeal dated December 4, 1998, the appellant preferred the Civil Review bearing No. 12/1999 which was dismissed by a short order dated July 19, 1999 (Annexure-22). Initially the appellant preferred L.P.A. No. 975/1999 against the aforesaid order dated July 19, 1999. That L.P.A. was dismissed by a short order dated February 9, 2000 (Annexure-23) on the ground that appellant had not preferred any appeal and had not challenged the judgment and order dated December 4, 1998 whereby the writ Court had dismissed the writ petition. However, the Division Bench observed that the order dated February 9, 2000 dismissing L.P.A. No. 975/1999 will not prevent the appellant from preferring an appeal against the judgment and order of which the review was declined. Thereafter the appellant has preferred this Letters Patent Appeal against the order dated September 24, 1997 whereby the State Government in the Department of Water Resources withheld 100 per cent gratuity and pension of the petitioner permanently. The appellant also prayed for quashing of another letter dated June 17, 1998 through amendment petition, whereby petitioner was asked to submit show-cause as to why action be not taken against him in terms of Rule 139 of the Bihar Pension Rules for fixing his pension and gratuity at zero level on account of charges found proved in the departmental proceeding.
2. The writ Court noticed the relevant facts including the fact that petitioner was initially appointed as Assistant Engineer on October 7, 1966 and after serving for sometime he was promoted as Executive Engineer and ultimately superannuated on January 31, 1997. It was noticed that in course of service the petitioner was posted as Executive Engineer, Irrigation Division, Giridih on December 23, 1986 and from there he was transferred and posted as Executive Engineer, Master Planning Division, Daltonganj on June 11, 1990. While he was posted as Executive Engineer at Daltonganj he was placed under suspension in anticipation of a departmental enquiry and ultimately subjected to a departmental proceeding. After some time the suspension order was quashed on the ground of delay in the departmental proceeding. The petitioner received charge-sheets dated May 2, 1991 on June 13, 1991. The disciplinary proceeding against the petitioner led to an order of punishment dated May 18, 1993 against him and it included punishment of censure and stoppage of three increments with cumulative effect. The said order was challenged by the appellant/ petitioner through C.W.J.C. No. 942/1994. That writ petition was disposed of by order dated March 23, 1995 whereby this Court did not interfere with the punishment of censure but quashed the other punishment on the ground that such punishment was a major punishment which required a detailed enquiry contemplated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and the Court was satisfied that adequate opportunity as required by that rule had not been given to the delinquent employee. However, while setting aside the order withholding increments the Court observed that it will be open for the department to proceed against the petitioner in accordance with law.
3. In view of the observation noticed above a fresh memo of charges was served upon the petitioner on May 20, 1995 and after enquiry in which the appellant/petitioner participated, an enquiry report dated January 17, 1996 (Annexure-19) was submitted. The disciplinary authority issued a second show-cause notice dated November 23, 1996 to which the appellant replied on January 17, 1997. Thereafter, the appellant superannuated from service on January 31, 1997. Thereafter the order of punishment dated September 24, 1997 was passed by the disciplinary authority. That order which was Annexure-1 to the writ petition shows that the disciplinary authority tad applied its mind to the earlier order of the Court containing the observation on the basis whereof the proceeding under Rule 55 was initiated. On examining the enquiry report the disciplinary authority found that the charge against the petitioner had been found proved and hence second show-cause notice had been issued and reply of the petitioner to that show-cause notice was also considered and the charge was again found proved. According to the disciplinary authority the charge found proved showed that D.K. Headlines contractor had furnished forged bank guarantee but no information of the same was given to higher authorities and Rs. 14,34,725/- had been paid in spite of bank guarantee being forged. The disciplinary authority was of the view that if the petitioner had continued in service he would have deserved dismissal from service but for the said gross misconduct now punishment was being awarded under Rule 43(b) of the Bihar Pension Rules.
4. On behalf of the appellant it has been submitted that the writ Court failed to consider the case of the appellant in proper perspective otherwise it would have interfered with the order of punishment on the following grounds:
(i) Once the punishment of censure passed against the petitioner was allowed to exist by the order of the High Court, another departmental proceeding for awarding major punishment on account of same charges would amount to inflicting double jeopardy, (ii) The alleged omissions and commissions related to the period 1989/90 and to be more specific the payments were made on February 12, 1990, August 23, 1990 and May 10, 1990, therefore in view of the proviso to Rule 43(b) of the Bihar Pension Rules no proceeding could be initiated, against the petitioner after a lapse, of four years from the alleged incident, (iii) The department, as per enquiry report could prove payment of Rs. 14 Lacs and odd by the petitioner which related to payment of running bills of the contractor and not payment of unsecured advance as alleged in the memorandum of charges and hence the enquiry officer as well as disciplinary authority wrongly concluded that charge No. 1 had been proved against the petitioner, and (iv) Since the petitioner has not been made accused and has not been charge-sheeted by the Central Bureau of Investigation in the criminal case lodged in relation to forged bank guarantees, the petitioner did not share the criminal intent of others involved in the occurrence and hence the punishment of forfeiture of 100 per cent pension and gratuity is excessive and disproportionate to the charge found proved.
5. Prima facie, the submission alleging double jeopardy appears to be attractive but on a careful reading of the order of the High Court dated March 23, 1995 which is Annexure-8 to the writ petition, we find that the High Court had given opportunity to the concerned respondents that they could proceed against the petitioner in the matter in accordance with law which had been discussed in the preceding part of the order to show that the proceeding could be held only as per Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. Even if there was some error in that order, both the parties accepted the said order and in the facts of the case it cannot be said that the proceeding initiated in terms of opportunity granted by this Court and leading to award of punishment can be held as bad in law on account of double jeopardy. The High Court found the format of the disciplinary proceeding held earlier against the petitioner to be not in accordance with law but did not interfere with the minor punishment of censure which could be awarded even on the basis of show-cause notice. But it is permissible under the relevant rules governing disciplinary proceeding to award more than one punishment against a delinquent officer and hence the grant of opportunity by the High Court indicates that in substance the High Court treated the proceeding which could be initiated in terms of that opportunity to be a continuation of the earlier proceeding but in the proper format as permissible under the rules, particularly Rule 55 noticed by the High Court. Hence, the first point raised on behalf of the appellant is found without merits.
6. The second submission on behalf of the appellant is on the basis of a proviso to Rule 43(b) of the Bihar Pension Rules. Sub-clause (a) to that proviso is absolutely clear in indicating that a departmental proceeding, only if not instituted while the Government servant was on duty before retirement or during re-employment, shall be subject to the three conditions prescribed under the aforesaid Clause (a) to the proviso. One of the conditions for such departmental proceeding which was not instituted prior to retirement is that it shall be in respect of an event which took place not more than four years before the institution of such proceeding. In the present case, as the facts mentioned in the preceding part of the judgment show, the departmental proceeding was not only initiated prior to retirement of the petitioner-but had in fact reached the stage of passing of final order by the disciplinary authority when the petitioner retired on January 31, 1997. The impugned order was passed thereafter on September 24, 1997. There is no legal bar in continuing an earlier proceeding even if it related to an incident which had taken more than four years before the retirement of the concerned employee. Earlier there was some confusion as to whether a proceeding pending at the time of superannuation of the concerned employee could be continued thereafter or not or whether the law requires afresh proceeding under Rule 43(b) of Bihar Pension Rules or express order converting the earlier proceeding under Rule 43(b). However, the controversy was finally set at rest by a Full Bench judgment of this Court in the case of Shambhu Sharan v. State of Bihar (2000) 1 PLJR 665. In the Full Bench judgment it was clearly held that the earlier proceeding could be continued leading to a punishment in accordance with Rule 43(b) of the Bihar Pension Rules and for such continuation no explicit order was required. On behalf of the appellant, it has been submitted that law in this regard stands interpreted in a (different manner by the judgment of the Supreme Court in the case of State of Bihar v. Mohd. Idris Ansari : (1995)IILLJ705SC . A perusal of that judgment shows that the main issue calling for i consideration of the Apex Court was whether the provisions of Rule 43(b) of the Bihar Pension Rules could be bypassed by resorting to power in the State Government under Clauses (a) and (b) of Rule 139 of the said Rules. The Court answered that power under the said Clauses of Rule 139 for the purpose of reducing pension on the ground of grave misconduct would be subject to provision of Rule 43(b). Clearly, as the main issue indicates, ;the concerned employee was not being proceeded under Rule 43(b) of the Bihar Pension Rules but even then the Apex Court further observed that a show cause notice issued under Rule 139 in respect of a misconduct committed prior to the time limit of tour years under Rule 43(b) would be incompetent. Clearly, the facts in that case were different and the ratio of that judgment does not help the appellant.
7. The third submission on behalf of the appellant requires scrutiny of some facts and this issue was addressed by the counsel for the rival parties at considerable length. Several judgments were cited from both the sides on a presumption that the charge No. 1 in the memo of charge clearly related to payment of Rs. 14.5 lacs towards unsecured advance whereas according to the appellant the payments made by the appellant after February 13, 1990 when a letter was received from the bank and which has been accepted by the enquiry officer to be the date on which the bank guarantees furnished by the contractor became gravely suspect to the knowledge of the appellant, were all by way of payments against running bills and not towards any advance. On the basis of a distinction by way of advance and running bills, it was submitted that enquiry officer has found 14 lacs and odd was paid by the petitioner to the contractor after February 13, 1990 but those payments related to running bills of the contractor and therefore the charge that appellant had made payments towards unsecured advance was not proved at all for want of any material to show that payments were towards advance. On the basis of aforesaid submission, on behalf of the appellants several judgments were cited including judgment in the case of Aligarh Muslim University v. Mansoor Ali Khan (2007) 7 SCC 529 to submit that such glaring difference in the contents of the memo of charges and in the facts proved must lead to the conclusion that facts found are different than the allegation made in the memorandum of charge and therefore the facts actually found against the appellant are in violation of: principle of natural justice because of lack of prior communication of the real allegations or charges. It was submitted that in such a situation the rules of natural justice require setting aside the enquiry report as well as the impugned order passed by disciplinary authority and such blatant deviation from the rules of natural justice cannot be condoned and the appellant cannot be asked to prove any prejudice to him for invoking the benefit of breach of rules of; natural justice.
8. On the aforesaid issue learned Counsel for the State also cited several judgments to submit that at best the charge can only be treated to be vague but the charge was well understood by the appellant who filed his show-cause at various stages and never objected to any vagueness in the charge and never contended that he was prejudiced on that account. It was submitted that the departmental proceeding was conducted after giving full opportunity to the appellant to place his defence and hence if he once contends that he has suffered on account of defect in the charge then he must show prejudice on that account. It was further submitted that such a grievance on account of alleged discrepancy between the charge and the actual evidence was not raised by the appellant before the Writ Court or even in the Review Petition as would appear from the orders of the Writ Court under appeal and order passed on Review Petition. Learned Counsel for the State placed reliance upon judgments of Supreme Court which were referred on behalf of the appellant also. In particular, he placed reliance upon a judgment of Supreme Court in the case of S.L. Kapoor v. Jagmohan : [1981]1SCR746 .
9. On going through the various judgments relating to principles of natural justice cited by the parties, we find that actually the Apex Court has accepted several exceptions to the strict rules of natural justice and it has also accepted that in many cases where the employee had notice and was participating in the proceeding, in order to take advantage of the plea that opportunity of hearing was not adequate or certain demands were not met by the authorities, it is incumbent upon the employee to show that he has been prejudiced by the alleged unfair act. However, where the proceedings are governed by the statutory provisions such as rules, the scope of natural justice has to be appreciated in the background of relevant statutory provisions. According to Rule 55 of the Civil Services (Classification, Control and Appeal) Rules which governs detailed disciplinary proceeding for award of major punishments, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with other required materials. Hence, the statutory rules require a charge to be definite so that the person charged may be in a position to reply to the charges effectively.
10. In the present case the controversy rests on the distinction between the two terms used by the rival parties. According to appellant, charge No. 1 uses the term 'unsecured advance' hence it cannot include payment towards running bills which have been noticed and relied upon by the enquiry officer. On the other and, learned Counsel for the State has submitted that the word 'advance' has different meanings and connotations in context of contract work assigned by the Government of Bihar and a perusal of some of the provisions like Rules 413 to 420 in Chapter-5 ofVolume-1 of Bihar Treasury Code would show that on account of running bills there is provision for advance payment which may be a secured advance or unsecured advance and therefore it is not a correct submission that the term 'unsecured advance', must exclude running bills. Some extracts from tender documents, Volume-1 governing the relevant transactions were produced before us on behalf of the' appellant to submit that in view of special tender documents, Bihar Treasury Code should not be held applicable in relation to transactions in question. In reply, learned Counsel for the State submitted that tender documents prepared by the Chief Engineer of the Department and for the concerned project will represent executive decision and cannot be above policy decision of the Government which is contained in the Treasury Code. It was further submitted that a perusal of last paragraph of Clause-33, just above Clause-34 of the tender document Volume-1 shows that in the tender in question it is clearly mentioned is follows: 'all interim payments shall be treated as advance payments. All payments will be made by Cheques.'
11. On a careful perusal of the memorandum of charge and other materials as well as on consideration of the aforesaid rival submissions, we find that the charge uses the term 'unsecured advance' not in a narrow or pedantic sense so as to cover only Resource Mobilisation Advance which the appellant had Paid to the contractor admittedly before february 13, 1990 but includes all payments as supported by the earlier noticed provision in the tender documents and the provisions in the Bihar Treasury Code. Thus, in the facts of the case, we find no merits in the submission that the department failed to substantiate the charge No. 1 because the payments made by the appellant were towards running bills of the contractor and not towards unsecured advance. If this had been the case, being aware of the technicalities the appellant would have taken clear objection to this effect in his earlier show-cause replies and in his writ petition, the review application and in the memorandum of Letters Patent Appeal. No such clear objection appears to have been taken by the appellant. Hence, we do not find merit in the third submission advanced on behalf of the appellant.
12. In the aforesaid context, it is relevant to notice that on behalf of the appellant it was submitted that the CBI came on the scene much later and the mere facts that CBI has submitted charge-sheet against several persons in respect of alleged forged bank guarantees cannot be conclusive to show that the bank guarantees were forged or fake and that the appellant had notice of such bank guarantees being fake or forged. In this regard it with be useful to notice the concluding part of charge No. 1 as appearing in memorandum of charge which is to the following effect:
Thus, the Executive Engineer is guilty of accepting forged bank guarantee and of paying to contractor U.K. Roadlines unsecured advance.' It is true that the issue of bank guarantee in question being forged or not has to be decided at different levels and it has yet not been decided in the criminal proceeding but there is no escape from the fact that for the purpose of departmental proceeding the enquiry officer was entitled to come to his own view on the basis of nature of show-cause given by the appellant and on the basis of entire facts and circumstances.
13. A departmental proceeding stands on a different footing so far as quality of evidence is concerned. In a criminal trial there must be evidence to prove the charge beyond reasonable doubts whereas in a departmental proceeding the charges may be correctly found proved on the basis of preponderance of probability. The enquiry officer has found the charge proved on the basis of materials adduced before him. Even from the nature of reply of the appellant in his show-cause it appears admitted that on account of false report by the concerned Accounts Clerk in respect of the bank guarantees furnished by the contractor, he has been made an accused and charge-sheeted by the CBI finding him prima facie involved in the offence for use of forged bank guarantees. In such circumstance, it is not possible to hold that such finding of the enquiry officer is based on no material.
14. Now, we have to examine the last submission on behalf of the appellant that the punishment of forfeiture of 100 per cent of gratuity and pension inflicted upon him is disproportionate and excessive. On this issue we have examined the relevant facts minutely and have noticed that there is no dispute that in the criminal case investigated by the CBI, the appellant has not been found guilty and has not been charge-sheeted. In absence of clear guidelines he accepted the bank guarantee on the report of the Accounts Clerk that on verification from bank the bank guarantee was found genuine. That Account Clerk has been charge-sheeted in the criminal case. No doubt, since bank guarantees were of considerable amount totaling Rs. 46 lacs and odd they should have been got inquired through a more responsible official but it is no one's case that at the time of accepting the bank guarantees from the contractor, there was any reason to doubt their genuineness.
15. Taking into consideration all the facts and circumstances, it appears to us that the punishment of forfeiture of 100 per cent of gratuity and pension is too severe and may force the appellant to suffer undeserved penury and misery in the evening hours of his life. Considering that aspect of the matter, we are of the view that punishment awarded to the appellant requires interference. In our view withholding 50 per cent of gratuity and 50 per cent of pension of the appellant would meet the ends of justice. The respondents are directed to act accordingly. With the aforesaid modification in the impugned order of punishment, this appeal is dismissed. There shall be no order as to costs.