Binda Ram vs State Of Bihar

Heard learned counsel for the petitioner and learned counsel for the State.

In this writ application, the petitioner has questioned the memo no. 1644 dated 04.10.2019 (Annexure ‘8’ to the writ application) issued under the signature of Respondent No. 3 by which the Respondent No. 3, who is Director, Primary Education, Department of Education, Government of Bihar has ordered for forfeiture of the full pension, gratuity and other retiral benefits of the petitioner under rule 43(A) of the Bihar Pension Rules, 1950 (hereinafter referred to as the ‘Pension Rules’). The petitioner has, while assailing Annexure ‘8’ to the writ application, further questioned the memo no. 333 dated 04.03.2020 (Annexure ‘9’ to the writ application) by which the Additional Secretary-cum-Principal Secretary (Respondent No. 2) refused to interfere with the order as contained in Annexure ‘8’ to the writ application and dismissed the appeal of the petitioner.

The grievance of the petitioner is that both Annexures ‘8’ and ‘9’ are wholly illegal, they do not confirm to the established procedure of law and are in violation of the principles of natural justice, therefore the impugned orders are liable to be set-aside and upon setting aside the impugned orders this Court may issue a writ in the nature of mandamus directing the respondents to pay all the pension and pensionary dues of the petitioner who has retired from service during his suspension period w.e.f. 30.06.2019. Prayer for payment of interest at the rate of 15% with cumulative rate has also been made.

Brief facts of the case

It appears from the narration of facts from the pleadings available on the record that while the petitioner was posted as Block Education Officer, Pakridayal in the district of East Champaran, Motihari, one Krishnadeo Ram who was a Headmaster of Uchh Madhyamik School, Shekhpurva lodged a complaint with the vigilance alleging that the petitioner was demanding a bribe for facilitating the payment of outstanding salary for the period November 2016 to July 2017. In his complaint to the Vigilance Investigation Bureau the said Krishnadeo Ram alleged that the petitioner is demanding a minimum amount of Rs. 65,000/-. On the basis of the said complaint, the Vigilance Investigation Bureau verified the allegations and thereafter constituted a trap team. A pre-trap memorandum was also prepared whereafter the trap was led on 05.04.2018.

It is alleged that the petitioner received the bribe amount of Rs. 65000/- in his hands and kept the same in the Godrej Almirah, on the indications given to the trap team the constables deputed there caught hold of the right and left hand of the petitioner and thereafter the money was found in between the files in the Almirah which was seized and then the hands of the petitioner were put in the water solution/mixture having sodium carbonate. Both the hands of the petitioner became pink. Accordingly, the Vigilance arrested the petitioner and he was forwarded to judicial custody.

According to the petitioner, the alleged date on which the verification is said to have been done i.e. 30.03.2018 was a public holiday on account of ‘Good Friday’, therefore, there was no question of the petitioner being available in Office on that particular day. The petitioner has further questioned that the trap team had raided the office of the petitioner and arrested the petitioner on the charge of having taken bribe of Rs. 65,000/- which was found in the Almirah of the office. Petitioner claims that there was no recovery from the physical possession of the petitioner and that the Almirah is being used by other office staffs and they are also having the keys of the Almirah.

It is an admitted position that pursuant to the seizure of the said alleged bribe amount of Rs. 65000/- a First Information Report giving rise to Patna Vigilance P.S. Case No. 13/2018 dated 05.4.2018 under Section 7/13(2) read with Section 13(1)(D) of the Prevention of Corruption Act was lodged against the petitioner. He came out on bail on 30.06.2018 and was allowed to join on 02.07.2018 before the District Education Officer, East Champaran, Motihari. This case is pending awaiting trial.

Petitioner was subjected to a departmental proceeding. A memo of charge i.e. Prapatra ‘ka’ was served upon the petitioner and thereafter he was directed to file his show cause vide Annexure ‘2’ to the writ application. The stand of the petitioner is that while serving the memo of charge the procedures as prescribed under Rule 17(4) and 17(5) of the Bihar Civil Services (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the ‘Service Rules’) were not followed. The charges leveled against the petitioner are as under:-

The petitioner has made complaints that he was served with the memo of charge after his letter saying that he had not received the memo of charge with all necessary documents. His stand is that he was not provided all the required documents despite direction of the enquiry officer to the authorities concerned.

It is stated that after receipt of some documents the petitioner filed his show cause denying all the charges and enclosed eighteen (18) evidences in support of his stand. The facts stated in the writ application are not in chronological order, however it appears that the disciplinary proceeding was conducted against the petitioner and vide Annexure ‘6’ dated 19.06.2019 to the writ application, the petitioner was made available a copy of the enquiry report submitted by the enquiry officer. All the charges leveled against the petitioner were found proved. Petitioner was given opportunity to submit his show cause by 25.06.2019. The copy of the enquiry report has been brought on record by the respondent nos. 2 and 3 by way of Annexure ‘B’.

In course of enquiry, it appears the District Education Officer, East Champaran and the complainant Sri Krishnadeo Ram appeared and supported the charge against the petitioner.

The petitioner claims that after receiving the enquiry report on 28.06.2019, the petitioner filed a representation and prayed for 15 days time for filing written reply on the ground that he is suffering from ailment. During pendency of the proceeding, the petitioner superannuated from service on 30.06.2019.

After superannuation of the petitioner, his suspension was revoked and the departmental proceeding was converted under Rule 43(B) of the Pension Rules. Annexure ‘7’ to the writ application is the copy of the order by which the proceeding was converted under Rule 43(B) of the Pension Rules.

There is no statement in the writ application that the petitioner submitted his show cause/reply after receipt of the enquiry report. The case of the petitioner is that though the departmental proceeding was converted under Rule 43(B) of the Pension Rules but the enquiry officer neither conducted any enquiry under the said Rule nor gave any opportunity to the petitioner to defend his case.

The petitioner has assailed the order of the disciplinary authority (respondent no. 3) on the ground that he has passed the impugned order under Rule 43(A) of the Pension Rules by ignoring the legal position that no punishment can be awarded under Rule 43 (A) for the past conduct during his service period. It is this order which is Annexure ‘8’ to the writ application and had been challenged before the Appellate Authority but the Appellate Authority dismissed the appeal of the petitioner vide Annexure ‘9’ to the writ application.

Learned counsel for the petitioner has relied upon Hon’ble Division Bench Judgment of this Court in the case of Nityanand Kumar Singh Vs. The State of Bihar and Ors. reported in 2016 (2) PLJR 315 to submit that there is a distinction between Rule 43(A) and Rule 43(B) of the Pension Rules. Rule 43(A) relates to future good conduct of a pensioner and the same may be invoked only when a pensioner is convicted of a serious crime or is held guilty of grave misconduct but that serious crime or grave misconduct under this provision could not relate to his conduct during his service period.

Stand of the State

Learned counsel for the State has opposed the writ application. Referring to the statements made in the counter affidavit, learned counsel submits that the disciplinary authority has passed the reasoned order vide Annexure ‘8’ to the writ application after following due process of law and the same has been affirmed by the appellate authority.

In the counter affidavit, the statements made in the writ application in paragraph 29 to 36 have not been specifically denied. All that is stated in the counter affidavit is that the enquiry officer submitted the inquiry report on 21.05.2019 to the Director, Primary Education in which he found all charges to be proved.

Consideration

Having heard learned counsel for the petitioner and learned counsel for the State as also on perusal of the records, it appears that after service of a copy of enquiry report, the petitioner was given an opportunity to submit his reply/show cause vide Annexure ‘6’ to the writ application. The statement of the petitioner that he had received copy of the enquiry report on 28.06.2019 and the he had submitted a representation praying for 15 days time for filing written reply on the ground that he was suffering from ailment are not at all denied by the respondents in their counter affidavit. Thus, this Court finds that even as the last date for filing the show cause/reply by the petitioner was 25.06.2019, the said Annexure ‘6’ has been issued on 19.06.2019 and the same was received by the petitioner on 28.06.2019. In terms of the Rule 18(3) of the Service Rules, the respondents were required to give at least 15 days time to the petitioner to submit his response. This provision under the Service Rules is in accordance with the principles of natural justice and violation of this provision would result in rendering the impugned order of the disciplinary authority futile. There is no dispute that Rule 18(3) of the Service Rules applies to the petitioner.

This Court further finds that no doubt the proceeding was converted in a proceeding under Rule 43(B) of the Pension Rules but the disciplinary authority has proceeded to pass the impugned order under Rule 43(A) of the Pension Rules which is not in accordance with law. In the case of the petitioner Rule 43(A) of the Pension Rules would not be attracted. This Court finds force in the submission of learned counsel for the petitioner when the following paragraphs of the Hon’ble Division Bench Judgment in the case of Nityanand Kumar Singh (supra) are referred to. Paragraph ‘5’, ‘6’ and ‘7’ are being quoted hereunder for ready reference:

“5. Rule 43(a) and rule 43(b) on account of similarity of expression and words used, appear to be overlapping and that has led to issue at hand. However, the opening sentence of Rule 43(a) provides the key to answer the issue. Future good conduct will be implied condition of every grant of pension would mean that a pensioner who has been granted pension is expected to maintain a good conduct in future and in case a pensioner is convicted of serious crime or held guilty of grave misconduct, the Provincial Government has the power granted by Rule 43(a) to withhold or withdraw the pension or any part of it and its decision has been made final and conclusive. So far as Rule 43(b) is concerned, this also confers power upon the State Government to withhold or withdraw a pension or any part of it, either permanently or for a specified period (this expression is not provided in Rule 43(a) if the pensioner is found, in a departmental or judicial proceeding, 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 (emphasis supplied by us). Under Rule 43(b), the Government also has the right of ordering recovery from a pension of the whole or part of any pecuniary loss caused to Government on the basis of finding in departmental or judicial proceeding.

Before coming to the proviso which consists of three clauses (a), (b) and (c) along with an explanation provided after clause (c), it is obvious from a comparison of Rule 43(a) with Rule 43(b) that the former relates to future good conduct of a pensioner and the same may be invoked if he is convicted of serious crime or is held guilty of grave misconduct. The serious crime or grave misconduct under this provision, i.e. rule 43(a) is not related to his conduct during service and/or service rendered on re-employment. It is a conduct expected of a pensioner in future after he is granted a pension. Thus, there is clear distinction between the aim and object of Rule 43(a) and that of Rule 43(b). Both the provisions operate in different areas having different connotations. The decision under Rule 43(a) is not on account of any departmental proceeding or judicial proceeding instituted when the Government servant was in service or instituted later in respect of an event which related to his service rendered before retirement or on re-employment. On the other hand, the purpose of Rule 43(b) is clearly to enable the State Government to continue or initiate a departmental or judicial proceeding in respect of omissions or commissions by a Government servant done while he was in service. Such provision in the rules governing pension vests the State Government with necessary powers to maintain action against a retired Government employee for his conduct while in service but subject to some restrictions mentioned in the proviso. The purpose of proviso is to safeguard pensioners or superannuated employees from loss of pension on account of belated disciplinary proceedings or judicial proceedings. On the other hand, the future good conduct mentioned in Rule 43(a) is good conduct expected of every Government servant even after superannuation. Such future conduct is not related to his service period at all.

Hence, the requirement of proviso (a)(ii) cannot apply to Rule 43(a). Such provision in the proviso puts a restriction upon the power of the State Government to initiate a departmental proceeding if not instituted while the Government servant was in service, either before retirement or during re-employment. Such departmental proceeding, by virtue of the provision under consideration cannot be in respect of an event which took place more than four years before the institution of such proceeding. Rule 43(a) comes into play after retirement and applies till pensioner breathes his last. There can be no question of time limitation for exercise of such power because this Rule is not at all connected with any departmental proceeding. Rule 43(a) nowhere refers to any departmental proceeding instituted earlier or to be instituted later. Hence, it cannot be governed by proviso (a)(ii) to Rule 43(b) as it can apply only to initiation of departmental proceeding by the Government after an employee has retired.”

The appellate authority also seems to have committed an error in not appreciating the pleas raised by the petitioner in appeal. The appeal seems to have been rejected in a routine and mechanical manner.

For the aforesaid reasons, this Court finds that the impugned orders (Annexure ‘8’ and ‘9’ to the writ application) have been passed in complete violation of the mandatory provision of Rule 18(3) of the Service Rules. There being no denial of the statements of the petitioner in paragraph 29 and 30 of the writ application, it is crystal clear that the disciplinary authority has passed the impugned order as contained in Annexure ‘8’ in complete haste.

Although, the petitioner has raised an issue with regard to the competent authority who can pass an order under Rule 43(B) of the Pension Rules, since this Court is quashing the impugned orders on the ground of violation of the procedures and principles of natural justice, issue as to competence of the authority under Rule 43(B) of the Pension rules is left open.

Annexure ‘8’ and ‘9’ are hereby quashed. The respondents are at liberty to proceed afresh under Rule 43(B) of the Pension Rules and take an appropriate decision in accordance with law as early as possible preferably within a period of six months from the date of receipt/ communication of a copy of this order.

In the meantime, the petitioner would be entitled for the consequential reliefs in accordance with law.

This Writ Application is allowed to the extent indicated hereinabove.