Umesh Kumar Sinha Vs. State of Bihar and ors. - Court Judgment

Excerpt:
- a. indian succession act, 1925, s.63 - evidence act, 1872, section 68 - will -suspicious circumstances -[ g.s. singhvi and; asok kumar ganguly, jj.] father of the 1st appellant as also of the plaintiff-respondent, had three sons - in his lifetime he executed a will which was registered - by the said will he bequeathed certain properties in favour of plaintiff-respondent and his other son and two daughters and giving his wife life interest - no property was bequeathed to appellant-testator died and after his death, the plaintiff-respondent was in exclusive possession of the property - ist appellant tried to disturb the possession of the plaintiff-respondent with the help of some anti social elements - suit as to stand of the 1st appellant was that will was not genuine and the said will had been revoked by another will - plaintiff-respondent claimed that the so-called subsequent wills are fabricated - trial court dismissed the suit upholding the contention of the 1st appellant - the first appellate court, however, allowed the appeal and decreed the suit - existence of the first will admitted - but the appellants' case is that the same has been revoked - however, there is no attesting witness to prove two subsequent wills - high court affirmed orders of first appellate court - held, both the wills are surrounded by suspicious circumstances. appellants did not succeed in discharging its onus of removing the suspicious circumstances surrounding will. appeal dismissed.-- b. indian succession act, 1925, section 63 & - evidence act, 1872, section 68 -will -suspicious circumstances - held, in a case where testator's mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the will is not the result of testator's free will and mind, the court may consider that the will in question is encircled by suspicious circumstances. -- c. indian succession act, 1925, section 63 - evidence act, 1872, section 68 - will -suspicious circumstances - execution of will - held, will has to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence, and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. order1. leave granted. heard the parties.2. the appellant retired on 31.3.1998 while serving as the managing director of bihar state pharmaceutical and chemical development corporation ltd. (for short 'the corporation'). he was suspended pending inquiry and disciplinary proceedings were initiated against him, when he was in service. the disciplinary proceedings were continued after his retirement on 31.3.1998. the enquiry officer submitted a report holding that five out of the nine charges were proved. thereafter, the disciplinary authority by order dated 1.10.2002 imposed the punishment of forfeiture of entire gratuity under rule 43(b) of the bihar pension rules ('rules' for short). the appellant filed a writ petition praying that the said order dated 1.10.2002 be quashed. the writ petition was dismissed by a learned single judge of the patna high court on 23.5.2006. the letters patent appeal was also dismissed on 16.1.2007. the special leave petition filed by the appellant was dismissed by this court on 10.7.2007. however, as the appellant submitted that the high court had not considered the issue whether gratuity of the appellant could not be forfeited, this court observed that if is he so desires, the appellant may file a review petition before the high court.3. appellant accordingly filed a review petition which was rejected on 22.1.2008. the said order is challenged in this appeal by special leave. notice was issued on the said slp, limited only to the quantum of punishment.4. rule 43(b) of the bihar pension rules provides that the state government could withhold or withdraw the pension wholly or any part of it and that the state government has 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 the departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to government by misconduct or negligence, during his service. rule 27 of the rules provides that pension includes gratuity. it is therefore evident that gratuity could be forfeited by way of punishment under rule 43(b) of the pension rules.5. the appellant contended that withholding of the entire gratuity was a harsh punishment which was highly disproportionate to the gravity of the charge that was held to be proved, the principal charge which was held to be proved was in regard to purchase of machinery, part payment for which was made by him even before its delivery, the appellant had defended himself by stating that the purchase order for the said machinery had been placed by his predecessor and having regard to the terms of the contract he was bound to make payment and accordingly he made the payment of rs. 72,387/-. be that as it may. having regard to the nature of misconduct for which the punishment was imposed, the forfeiture of the entire gratuity appears to be excessive and disproportionate. forfeiture of half of the gratuity would serve the ends of justice.6. on the facts and circumstances, we are of the view that the punishment should be reduced to forfeiture of only 50% of the gratuity. the balance of the gratuity should therefore be released to the appellant. the appeal is allowed in part accordingly.

Judgment:
ORDER

1. Leave granted. Heard the parties.

2. The appellant retired on 31.3.1998 while serving as the Managing Director of Bihar State Pharmaceutical and Chemical Development Corporation Ltd. (for short 'the Corporation'). He was suspended pending inquiry and disciplinary proceedings were initiated against him, when he was in service. The disciplinary proceedings were continued after his retirement on 31.3.1998. The Enquiry Officer submitted a report holding that five out of the nine charges were proved. Thereafter, the disciplinary authority by order dated 1.10.2002 imposed the punishment of forfeiture of entire gratuity under Rule 43(b) of the Bihar Pension Rules ('Rules' for short). The appellant filed a writ petition praying that the said order dated 1.10.2002 be quashed. The writ petition was dismissed by a learned Single Judge of the Patna High Court on 23.5.2006. The Letters Patent Appeal was also dismissed on 16.1.2007. The Special Leave Petition filed by the appellant was dismissed by this Court on 10.7.2007. However, as the appellant submitted that the High court had not considered the issue whether gratuity of the appellant could not be forfeited, this Court observed that if is he so desires, the appellant may file a review petition before the High court.

3. Appellant accordingly filed a review petition which was rejected on 22.1.2008. The said order is challenged in this appeal by special leave. Notice was issued on the said SLP, limited only to the quantum of punishment.

4. Rule 43(b) of the Bihar Pension Rules provides that the State Government could withhold or withdraw the pension wholly or any part of it and that the State Government has 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 the departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service. Rule 27 of the Rules provides that pension includes gratuity. It is therefore evident that gratuity could be forfeited by way of punishment under Rule 43(b) of the Pension Rules.

5. The appellant contended that withholding of the entire gratuity was a harsh punishment which was highly disproportionate to the gravity of the charge that was held to be proved, The principal charge which was held to be proved was in regard to purchase of machinery, part payment for which was made by him even before its delivery, The appellant had defended himself by stating that the purchase order for the said machinery had been placed by his predecessor and having regard to the terms of the contract he was bound to make payment and accordingly he made the payment of Rs. 72,387/-. Be that as it may. Having regard to the nature of misconduct for which the punishment was imposed, the forfeiture of the entire gratuity appears to be excessive and disproportionate. Forfeiture of half of the gratuity would serve the ends of justice.

6. On the facts and circumstances, we are of the view that the punishment should be reduced to forfeiture of only 50% of the gratuity. The balance of the gratuity should therefore be released to the appellant. The appeal is allowed in part accordingly.