| SooperKanoon Citation | sooperkanoon.com/134981 |
| Subject | ;Service |
| Court | Patna High Court |
| Decided On | Sep-24-1997 |
| Case Number | C.W.J.C. No. 2189 of 1997 (R) |
| Judge | M.Y. Eqbal, J. |
| Appellant | Mohd. Wakil |
| Respondent | The State of Bihar and ors. |
| Disposition | Petition Allowed |
M.Y. Eqbal, J.
1. In this writ petition, the petitioner has prayed for issuance of appropriate Writ commanding upon the respondents to pay all the retrial benefits, i.e. full pension, gratuity, General Provident Fund (GPF), Group Insurance, leave encasement etc. on account of superannuation of the petitioner on 31.1.1997. A further prayer has been made for quashing the departmental proceeding which has been initiated against the petitioner by order dated 13.2.1997 under Rule 43 (b) of the Bihar Pension Rules (hereinafter to be referred to as 'the Rules' for short).
2. According to the petitioner he retired on 31.1.1997 while working as Village Level Worker in the Burmu Block, Ranchi. Further, the petitioner has submitted all the papers before his retirement, but even after lapse of six months no payment has been made, except 75% of the provisional pension which was paid in the month of May, 1997.
3. The petitioner earlier filed CWJC No. 3568 of 1995 (R) praying for grant of 2nd time bound promotion with effect from 19.3.1988 and other benefits and the said writ petition was allowed on 14.2.1996 and Respondent No. 3 (Deputy Commissioner, Ranchi) was directed to grant 2nd time bound promotion to the petitioner with effect from 19.4.1988 within a period of three months from the date of receipt/production of copy of that order. When the order was not complied with by authority concerned the petitioner moved this Court by filing contempt petition, being M.J.C. 440 of 1996 (R).
It is stated that instead of complying the aforesaid order, the respondent concerned filed a review petition, being Civil Review No. 23 of 1996 (R) in which the respondents brought some new/more facts, stating, inter alia that the departmental proceeding was initiated after retirement of the petitioner for the same cause of action for which the petitioner was charge-sheeted in the year 1990, but the departmental proceeding was not concluded, this Court in terms of the order dated 17.3.1997 refused the review application. It appears that the respondents then filed L.P.A. 223 of 1997 (R) against the order dated 14.2.1996 passed in C.WJ.C. of 1995 (R) and the said L.P.A. was rejected by this Court on 2.7.1997. It is stated by the petitioner that the whole phenomenon has been done by the respondents with the sole purpose of harassing the petitioner and for not paying the amount as directed by this Court. However, the contempt petition was finally disposed of on 23.7.1997. Since the respondents have complied with the direction of this Court, but considering the malafide intention and harassing attitude of the respondents in putting the petitioner for such a long way of litigation and delaying the matter warning has been given to the Deputy Commissioner while accepting the apology tendered by him. A copy of the order dated 23.7.1997 has been annexed as Annexure-4 to this writ petition. It is slated that by order dated 13.2.1997, respondent No. 2 (Deputy Commissioner) has initiated the proceeding against the petitioner under the provision of Rule 3 (b) of the said Rules and also mentioned that the departmental proceeding which has been initiated against the petitioner in his service tenure has not been completed during his service and the final order has not been passed and, therefore, for the same cause it has been continued after superannuation of the petitioner.
4. A counter, affidavit has been filed on behalf of the respondents justifying the continuation of the departmental proceeding on the ground that the petitioner was suspended in August, 1989, on account of charges of misconduct for defalcation of Government fund, and therefore, a departmental proceeding was initiated and charge-sheet was issued on 12.10.1990. It is stated that the departmental proceeding against the petitioner had already commenced before the date of superannuation from 31.1.1997 in view of the Government instruction as contained in paragraph-3 of the Letter No. 20233 dated 8.11.1978 issued by the Department of Personnel and Administrative Reforms, Bihar, Patna, a copy of which is Annexure-C to the counter affidavit. It is further stated that the departmental proceeding against the petitioner had been initiated when the petitioner was already in service and the same has been allowed to continue in terms of Rule 43 (b) of the Rules by order as contained in Memo No. 248 (II) dated 13.2.1997 and it is not a fresh proceeding drawn under Section 43 (b) of the said Rules. It is further stated that it is not an initiation of a departmental proceeding afresh and, therefore, it is not in any way contrary to the provision of Rule 43 (b) of the Pension Rules.
5. I have heard Mr. Anil Kumar Sinha, learned, senior counsel for the petitioner, and the J.C. to the learned Standing Counsel for the respondent- State.
6. Mr. Sinha, submitted that the impugned order of initiation of departmental proceeding is absolutely illegal, arbitrary and malafide for the reasons stated in the writ petition. It is submitted that the impugned order was passed by the Deputy Commissioner, Ranchi, under Rule 43 (b) of the Rules for the same cause of action, which was initiated in the year 1990 by issuing charge-sheet to the petitioner and for the last seven years departmental proceeding has not been concluded. According to the learned Counsel admittedly the service of the petitioner was not extended for continuance of the departmental proceeding; rather he was superannuated and, therefore, the action of the respondents is in violation of Rule 43 (b) of the said Rules.
7. Before appreciating the submissions made by the learned Counsel for the parties, it would be appropriate to look into the impugned order dated 13.2.1997, copy of which is Annexure-5 to this writ petition. The impugned order dated as follows:
MO. WAKIL,SEVA NIRVRIT JANSEVAK, BURMU PRAKHAND KE BIRUDDH PRARAMBHA VIBHAGIYA KARJAVAHI JO UNKE SEVAKAL ME HI SARKARI RASHI KE DURVINIYOG AVAM GABAN TATHA UCCHADHIKARIYO KE ADESH KI AVAHELANA KE KARAN PRARAMBHA KI GAI HAL ME ANTIM ADESH PARIT NAHIN KIYA GAYA HAI MO. WAK1L DINANK 31.1.1997 KO SEVA NIRBRITYA HO CHUKE HAIN. UNKE BIRLJDH AROP PRATHAM DRASTYA GHOR KADACHAR KI KOTI ME ATE HAIN TATHA UNHONE KADACHAR YA LAPARAWAHI SE SARKAR KO VITTIYA CHHATI PAHUCHAI HAI. UKTA STKITI ME BIHAR PENSION NIAMAVALI KE NIAM 43 (B) KE ANTARGAT UNKE BIRUDDHA SANCHALIT VIBHAGIYA KARJABAHI CHALU RAKHNE KA ADESH DIA JATA HAIN.
From perusal of the aforesaid order passed by the Deputy Commission, it appears that the Deputy Commissioner proceeded on the basis that departmental proceeding was initiated against the petitioner while he was in service for the alleged defalcation of Government fund, but final order could not be passed in that departmental proceeding till the date of superannuation of the petitioner. The Deputy Commissioner, therefore, passed the order under Rule 43 (b) of the said Rules for continuation of the departmental proceeding. In order to test the validity of the aforesaid order, it would be useful to look into the relevant provision, i.e. Rule 43 (b) of the said Rules, which reads as follows:
43....
(b) The State Government further reserve to themselves the right of withholding or withdrawing pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:Provided that--
(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment;
(i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;
(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and
(c) the Bihar Public Service Commission, shall be consulted before final orders are passed.
8. From a bare reading of the aforesaid provisior? it is manifest and that Government has the right to with-hold the pension or any part of it and also order for recovery of any loss caused to the Government out of the pension, if the petitioner is found guilty in a departmental or judicial proceeding, while he was in service. The aforesaid provision does not in any way permits continuance of the departmental proceeding in the manner ordered by there Deputy Commissioner in his impugned order. Admittedly, the alleged defalcation and misconduct for which the departmental proceeding was initiated against the petitioner was committed in the year 1987-88.
I fall to understanding so to how the proceeding initiated in the year 1987- 88 shall continue under the provision of Rule 43 (b) of the said Rules.
9. In the entire counter affidavit the impugned order for continuance of the departmental proceeding was justified by the respondents by referring the letter dated 8.11.1978 issued by the department of Personnel and Administrative Reforms. From perusal of the said letter (Annexure-C) it appears to me that the said letter does not in any way say about continuance of the departmental proceeding after superannuation in respect of charges/misconduct even if committed four years before the date of superannuation of the employee. The said letter simply contemplates that in those cases where the departmental proceeding was not concluded before the date of superannuation of the employee for the grave charges of defalcation of public money, then steps should be taken for initiation of a proceeding under Rule 43 (b) of the said Rules.
10. It is well settled that the departmental proceeding, if not concluded by issuance of a final order, lapses on superannuation of the Government servant concerned. Once a Government servant superannuates from service, he goes beyond the disciplinary control of the Government and thereafter on such proceeding may be initiated against the concerned Government servant is expressly provided under the law/rules.
In the counter affidavit, the respondents have admitted that no fresh departmental proceeding has been initiated; rather by' the impugned order the respondents decided to continue the departmental proceeding which was initiated in respect of charges levelled against the petitioner in the year 1987- 88. In view of the admitted statement of the respondents. I am of the opinion that the impugned order is absolutely illegal, arbitrary, and wholly without jurisdiction. Rule 43 (b) does not contemplate continuance of the departmental proceeding even after superannuation in respect of chargers of misconduct alleged about 9/10 years before the date when the employee was superannuated.
11. In the case of State of Bihar v. Mohd, Idris Ansari : (1995)IILLJ705SC , in the similar facts and circumstances of the case, the question of interpretation of Rule 43 (b) of the said Rules came for consideration before the Supreme Court and Their Lordships have held as under:
A mere look at these provisions shows that before the power under Rule 43 (b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned Government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place nor more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43 (a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years old, Rule 43 (b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27.9.1993. It was clearly stated therein mat no action can be taken under Rule 43 (b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17.10.1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17.10.1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned notice dated 27.9.1993. Consequently it is not open to the learned Advocate for the appellant to rely upon the said earlier notice dated 17.10.1987.
12. As noticed above, the petitioner was superannuated in January, 1997 and thereafter for getting the retrial benefits he had to move this Court by filing writ petition and direction was issued to the respondents for payment of retrial dues. Non-compliance of the direction of this Court resulted into initiation of a contempt proceeding against the there respondent No. 2 (Deputy Commissioner, Ranchi). Instead of complying the direction for payment of retrial dues/benefits, the respondents firstly tried to get the order reviewed and when the review application was rejected, they challenged the order by filing L.P.A. which to was dismissed. After harassing the petitioner by continuing frivolous proceedings, the order/direction of this Court was complied with and the contempt application was disposed of with the warning given to respondent No. 2 and that too when the Deputy Commissioner tendered his un-qualified apology.
Now the respondent No. 2 in order to frustrate the entire earlier proceedings and orders, time to time passed by this Court, has passed the impugned order and decided to continue the departmental proceeding which was initiated 10 years back. The impugned order passed by respondent No. 2 is, therefore, illegal, arbitrary, capricious and malafide.
13. For the reasons aforesaid, this writ petition is allowed and the impugned order passed by the Deputy Commissioner, Ranchi (respondent No. 1) for continuance of the departmental proceeding is hereby quashed. Respondent No. 2 is directed to make payment of all the retrial dues/benefits to the petitioner as expeditiously as possible, preferably within two months from the date of receipt/production of a copy of this order.