Deo Nandan Prasad vs State of Bihar and Others

Mihir Kumar Jha, J.—Heard learned Counsel for the parties. In this writ application, the petitioner has assailed an order of punishment withholding/deducting 50% pension vide impugned order dated 14.3.2007.

Mr. Manoj Priyadarshi, learned Counsel for the petitioner, has raised number of contentions but the one which would go to the root of the matter is that the exercise of power under section 139 of the Bihar Pension Rules for the purpose of inflicting punishment of withholding of 50% pension of the petitioner is itself not only arbitrary but also illegal.

No one has appeared on behalf of the State though a counter affidavit is there.

Few facts are not in doubt. Firstly, the petitioner was working as a Junior Engineer in the Road Construction Department and had retired on 30.1.2003. Till the date of retirement, no departmental proceeding was initiated against him and only a show-cause notice dated 12.8.2002 was pending consideration for the purpose of taking a decision as to whether the departmental proceeding could be initiated against him as is apparent from the last paragraph of the show-cause notice dated 12.8.2002:--

It is also not in doubt that before the petitioner had retired, he had already filed his reply on 30.10.2002 but, thereafter, no decision was taken while the petitioner was continuing in service and he was allowed to retire on 30.1.2003 without any stigma on account of proceeding against him. As a matter of fact, the petitioner was also sanctioned pension by the authorities of the department which was also authorized by the office of the Accountant General on 9.2.2004 as is also apparent from Annexure-3, the Pension Payment Order of the petitioner. In fact, in 14.8.2006 i.e. after almost three years of the retirement of the petitioner, a proceeding under section 139 of the Bihar Pension Rule was sought to be initialed on the ground that the petitioner had not submitted the account of 689.468 M.T. of coal tar and, as such, a sum of Rs. 29,99,790/- was recoverable from the petitioner. In the show-cause notice dated 14.8.2006, the petitioner was given time to file his explanation and he did so by filing his exhaustive show-cause reply on 8.9.2006 as contained in Annexure-5. The impugned order has been passed only by way of consideration of the aforesaid show-cause reply which, for the sake of clarity and convenience, is quoted herein below:---

In the light of the aforesaid facts, the only question for consideration of this Court would be as to whether the proceeding under section 139 of the Bihar Pension Rules could have been initiated against the petitioner leading to the impugned order of punishment. As would be apparent from reading of the provision of Rule 139(C), there has to be first a finding recorded that the services of the petitioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. For recording either of the two findings, there has to be a departmental proceeding or concluded determination of the fact that the services of the petitioner was not thoroughly satisfactory or there was proof of grave misconduct on his part.

As noted above, till the date of retirement, there was no such order against the petitioner. There was only a show-cause notice and that to(c) only for the purpose of taking a decision as to whether the departmental proceeding against the petitioner could be initiated;

In that view of the matter, this Court is satisfied that the exercise of power under Rule 139(C) by way of issuance of show-cause notice to the petitioner and the consequential order does not fulfill the test of Rule 139(C) of the Bihar Pension Rule.

This Court must clarify, even at the cost of repetition, that recourse of Rule 139(C) is not a substitute for the provision of Rule 43(b). As a matter of fact, if the allegations against the petitioner were pending by way of show-cause notice,, a contemplated departmental proceeding was to be initiated on the basis of the show-cause notice issued to the petitioner while he was in service. The respondents could have initiated a proceeding even after his retirement in terms of Rule 43(b) provided incident, in question, was not covered by the embargo of four years from the date of initiation of such proceeding. If the Government, however, was of the view that'' the proceeding under Rule 43(b) could not be maintainable against the petitioner because of incident being of the year 1991-92 on account of the embargo of four years under Rule 43(b), an answer could not have been found under Rule 139(C).

This aspect of the matter has already been settled by the Division Bench of this Court in the case of Md. Idris Ansari Vs. State of Bihar and Others, which also stand affirmed by the Apex Court in the case of State of Bihar and others Vs. Mohd. Idris Ansari, . Thus, there would be almost no escape from the inevitable conclusion that the impugned order, withholding 50% of pension of the petitioner, cannot be sustained either on fact or in law.

That being so, the impugned order dated 14.3.2007 as contained in Annexure-6 is hereby quashed.

Before parting with, this Court must make it clear that if there be any proof of the petitioner being liable to refund the amount of coal tar, nothing said in this order will come in the way of the State Government to institute a money suit for such recovery but, then, recovery cannot be made of such amount from the amount of pension of the petitioner. It, therefore, goes without saying that the petitioner''s balance amount of 50% withheld by the impugned order also must be refunded to him and his full pension of 100% is also restored to him within a period of three months from the date of receipt of this order.