Chote Lal Prasad Sinha vs State of Bihar (now Jharkhand) and Others

D.G.R. Patnaik, J.—Heard Mr. A.K. Sahani, learned Counsel for the petitioner and J.C. to G.A. for the Respondent-State.

The petitioner in this writ application has prayed for an order for quashing the order dated 01.10.2002 (Annexure-6), passed by the Respondent No. 2, whereby the entire amount of pension payable to the petitioner has been withheld purportedly under Rule 43(b) of the Bihar Pension Rules and a direction has been issued to the petitioner to deposit a sum of Rs. 9,02,574/- in the Government Treasury, failing which the amount would be recovered through the proceedings under the Public Demand Recovery Act.

Facts of the petitioner''s case in brief are as follows:

(i) The petitioner was initially appointed as a Clerk on 18.11.1957 in the Filaria Department and was later transferred to the Malaria Department under the State Government.

(ii) He was superannuated from service from the post of Head Clerk-cum-Store-in-charge from the office of the Malaria Officer, Daltonganj on 31.12.1996. By Office order dated-29.11.1996, issued by the Deputy Commissioner, Palamau, the petitioner was directed to hand over the charge of his Office and materials to one Kuldeep Oraon, a clerk in the said Office.

(iii) Later, the order was modified with a direction to the petitioner to hand over charge of office to one Chandra Bali Singh, another employee of the Department.

(iv) In compliance with the orders, the petitioner claims to have handed over the charge of his office alongwith the entire materials to the assignee.

(v) Despite handing over the charge of his office and the materials, a further letter was issued by the Deputy Commissioner, Palamau to the petitioner calling upon him to show cause as to why the entire materials were not handed over to the assignee. Such show-cause notice was issued on the basis of an audit report that 240 bags of D.D.T. were not entered in the Stock Register, though it was clarified that the Truck carrying the consignment was directly sent to Nagar Ootari and the entry concerning the receipt of the materials was made in the Register of the Nagar Ootari Office.

(vi) Yet, when his retiral dues were not released the petitioner filed a writ application before this Court vide C.W.J.C. No. 2452 of 1998 (R). The writ application was disposed of by order dated 02.08.1999 with an observation that there was nothing on the record to suggest that the Respondents had initiated any proceeding against the petitioner for recovery of any amount from his retiral benefits. A direction was issued to the Respondent-State of Bihar through the Secretary, Health Department to make proper enquiry from the concerned office and, if any, amount is found recoverable from the petitioner, then, the list of articles and the cost of such articles should be communicated to the petitioner and on receipt of reply to the same, the concerned authority should pass a reasoned/speaking order within four months from the date of receipt/production of a copy of that order. It was also observed that if no decision was taken by the authorities within the period of four months, they will release the provisional pension and gratuity in favour of the petitioner, which is to be paid within a period of six months from the date of receipt/production of a copy of the order.

(vii) In compliance with the above order of this Court, passed in C.W.J.C. No. 2452 of 1998 (R), the petitioner submitted his representation before the concerned authorities of the Respondents on 08.09.1999.

(viii) In spite of his representation, stating in detail, the relevant facts, a show cause notice was served on him on 15.10.1999 with a direction to return all the articles.

(ix) Subsequently, by order dated 25.06.2001, the Respondents withheld the entire retiral dues of the petitioner. Being aggrieved by the aforesaid order dated 25.06.2001, petitioner filed another writ application vide W.P. (S) No. 4472 of 2001. The writ application was disposed of vide order dated 15.02.2002 with an observation that the impugned order of withholding the retiral dues of the petitioner was passed by the Director, purportedly under the provisions of Rule 43B of the Pension Rules, though the Director had no jurisdiction to pass such order after retirement of a Government servant. After setting aside the impugned order of withholding the petitioner''s retiral dues, the Court had remitted the matter back to the Secretary, Health Department, Govt. of Bihar with a direction to pass a final order under Rule 43B of the Pension Rules after enquiry within four months, if permissible under the law and with an observation that if no order under Rule 43(b) of Pension Rules is passed within four months from the date of receipt/production of a copy of the order, the Respondents would be liable to release full Pension and Gratuity, payable to the petitioner. It was also observed that it would be open to the petitioner to raise all the objections before the Secretary, Health Department including the objections raised before this Court that the State had no jurisdiction to pass any order under Rule 43(b), the year of event of allegation being four years prior to the date of initiation of the departmental proceedings.

(x) Pursuant to the orders passed by this Court, in W.P. (S) No. 4472 of 2001, the Respondent vide letter dated 18.03.2002 (Annexure-2) called upon the petitioner to submit his explanation and evidence.

(xi) In response, the petitioner submitted his representation on 13.04.2002 before the Respondent No. 2, namely, the Commissioner-cum-Secretary, Health Department, Government of Bihar, Patna and three days later i.e. on 16.04.2002, the petitioner also submitted his show-cause replies before the Respondent No. 3, namely, the Chief Malaria Officer, Bihar, Patna.

(xii) Thereafter, vide the impugned order dated 01.10.2002, the Respondent No. 2 decided to proceed against the petitioner and to withhold the entire pension amount with a further direction to deposit an amount of Rs. 9,02,574/-.

Assailing the impugned order, learned Counsel for the petitioner would raise the following grounds:

(i) That the impugned order is wholly unlawful, arbitrary and without authority of law and is violative of the principles of natural justice.

(ii) The impugned order is vitiated on account of non-compliance of the provisions of the Bihar Pension Rules.

Counter affidavit has been filed on behalf of the Respondent No. 3.

Refuting the grounds advanced by the petitioner, learned Counsel for the Respondent-State would argue that pursuant to the orders passed by this Court in W.P. (S) No. 4472 of 2001, a notice was issued to the petitioner by letter dated 04.10.2002, calling upon him to submit his explanation in his defence. The copy of the report of enquiry conducted against the petitioner was also served on the petitioner. He was directed to file his show cause replies. Though the petitioner has filed his replies to the show-cause notice, but had failed to satisfy.

It is further submitted that at the time of his superannuation on 31.12.1996, the petitioner did not hand over charge of the materials. An F.I.R. was registered against him and thereafter, a proceeding was initiated within four years from the date of his superannuation. The petitioner''s claim was that since the period of the alleged offence related to the year 1991-92, the proceeding under the provisions of Rule 43(b) of Pension Rules, could not have been initiated beyond the period of limitation, is not tenable in view of the fact that he was to hand over the charge of the materials latest on the date when he had superannuated and on his failure, the enquiry was set up against him on 16.03.2000, which was within the period of four years from the date of his retirement. It is also explained that the enquiry against the petitioner was set up on the basis of the audit Report which had found certain irregularities in the official stores but during the tenure when the petitioner was in charge of the Stores.

From the rival submissions, it appears that the petitioner''s consistent stand has been that no proceeding under the provisions of Rule 43(b) of the Pension Rules was ever initiated against him by the competent authority. It also appears that the enquiry referred to, in the counter affidavit of the Respondents, which was set up against the petitioner on 16.03.2000, purportedly under the provisions of Rule 43(b) of the Pension Rules and pursuant to which an order was passed by the Director, Health Services on 25.06.2001, withholding the petitioner''s pension, was quashed by the order of this Court, passed in the earlier writ application being W.P. (S) No. 4472 of 2001. After quashing the order of the Director, this Court had directed the Secretary, Health Department, Government of Bihar to pass a final order after enquiry within four months, if permissible under the law and if no order would be passed within four months from the date of receipt/production of a copy of the order, the Respondents were made liable to release full Pension and Gratuity in favour of the petitioner. By the same order, the petitioner was also given liberty to raise his objections as raised in the writ application against the initiation of fresh proceedings under the provisions of Rule 43(b) of Pension Rules.

Thus, initiation of a fresh proceeding, under the provisions of Rule 43(b) of the Pension Rules was made subject to the condition that such proceedings could be initiated and continued only if the same is permissible under the law.

Admittedly, the petitioner''s representation was considered and decided by the Secretary of the Health Department of the State Government on 01.10.2002, and by the impugned order of even date, the decision was taken against the petitioner. Thus, even if a fresh enquiry was purportedly conducted, yet, such enquiry could not possibly have been conducted beyond four years from the date when the offence was committed, even taking the date of the petitioner''s retirement, as the initial date for computing the period of four years.

From perusal of the impugned order, it transpires that though the objections taken by the petitioner regarding the maintainability of the proceedings under Rule 43(b) was referred to, but the same was rejected only on the ground that an F.I.R. was lodged against the petitioner and a departmental enquiry was initiated against him even prior to the date of his retirement.

Even if, any such departmental proceeding was initiated against the petitioner during his service period, but admittedly, since the proceeding did not conclude prior to the date of his retirement, it could not possibly be continued after his retirement. A proceeding under Rule 43(b) of the Pension Rule is a totally different nature of proceeding, which could be initiated only within four years from the date of offence, even after the Government employee had retired from service. It is apparent from the admitted facts, that no enquiry which could be considered as legal and permissible, was conducted against the petitioner under the provisions of Rule 43(b) of the Bihar Pension Rules. As such, the Respondents cannot legally withhold the Pension amount and the retiral benefits of the petitioner.

Furthermore, even as per the earlier order passed by this Court in W.P. (S) No. 4472 of 2001, a strict direction was issued to the Respondent-State that "if no order under Rule 43(b) of Pension Rules is passed within four months from the date of receipt/production of a copy of the order, the Respondents would be liable to release full pension and gratuity in favour of the petitioner". Whereas, the order of the Court in the aforesaid writ application was passed on 15.02.2002, and was supposed to be complied with within four months i.e. latest by the end of June, 2002, the impugned order was passed, much beyond the stipulated period, on 01.10.2002.

In the light of the above facts and circumstances, the impugned order (Annexure-6) has to be declared as illegal and contrary to the provisions of law and cannot be sustained. Accordingly, the impugned order (Annexure-6) is hereby quashed. This writ application is allowed. The Respondents are directed to release both the full pension and Gratuity to the petitioner within two months from the date of receipt/production of a copy of this order.

Let a copy of this order be given to the learned Counsel for the Respondents.