Jagdish Chandra Sinha vs The State of Bihar and Others

S.K. Katriar, J.—Mr. Satish Kumar Agarwal for the petitioner, Mr. P.K. Rajgrihar, learned junior counsel to Standing Counsel No. X for respondent Nos. 1 to 9, and Mr. J.P. Karn for respondent No. 10 [The Accountant General (Accounts and Entitlement) II, Bihar, Patna] are present.

According to the writ petition, the petitioner had initially joined the services of the Bihar Government as a Draftsman on 21.7.1962. He was promoted to the post of Junior Engineer on 13.12.1973, and served as such in different offices. He had been given advance in instalments for completion of a civil work. The petitioner superannuated in the same capacity with effect from 31.12.1999, which functioning as Junior Engineer in the Office of the Building Construction Division, Bettiah. The petitioner raises a grievance before this Court that a sum of Rs. 4,58,919.40 p. is sought to be adjusted against his post-retirement benefit which is impermissible in law.

Respondent Nos. 1 to 9 have filed their counter affidavit wherein it is stated that the petitioner was given the aforesaid sum by way of advance in different instalments to complete the civil work, only 85 per cent of which was completed and that too deficiently. Hence the deductions.

Learned counsel for the petitioner in reply submits that such recovery at this stage is impermissible In law. He relies on the following reported judgments :

(i) State of Bihar and others Vs. Mohd. Idris Ansari, ;

(ii) D.V. Kapoor Vs. Union of India and others, .;

(iii) Bajrang Deo Narain Sinha Vs. The State of Bihar and Others, ;

(iv) Pramod Kumar Sinha Vs. State of Bihar and Others, ;

(v) Smt. Shanti Choubey Vs. The State of Bihar and Others, ;

(v) Parmeshwar Dayal Verma Vs. State of Bihar and Others, .

I have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the petitioner had received the aforesaid sum of Rs. 4,58,919.40p. by way or advanced in instalments to complete the work. The work was undertaken and executed. The difference between the petitioner''s case and that of respondents is that, according to the former, the entire work was completed according to the specifications, whereas according to the latter, only 85 per cent work was completed and executed poorly. According to the respondents, this position became clear to the respondent authorities from the report dated 24.4.2003 (Annexure-J to the counter affidavit) which is an enquiry report submitted by the Additional Collector, West Champaran, Bettiah. This was an enquiry to ascertain the correct position and was not an enquiry contemplated in terms of Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the ''Rules''). Taking the case of the respondents at its highest, it seems to make out a case of misconduct and/or negligence in duties, resulting in loss to the Government.

Rule 43(b) of the Rules is relevant in the present context and is set out hereinbelow for the facility of quick reference :

"43(b) The State Government further reserve to themselves the right of withholding of withdrawing a 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 afterment :

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.

It is manifest from a plain reading of Rule 43(b) that the alleged acts of omission and commission on the part of the petitioner has led to pecuniary loss to the Government which can be determined either in a departmental proceeding or judicial proceeding provided the same is instituted in respect of an event which took place not more than four years before the institution of such proceedings. The admitted position in that no such proceeding in terms of Rule 43(b) has so far been instituted nor any judicial proceedings in pending in Court. It is not on record as to when was the project completed. In so far as the petitioner is concerned, it was surely prior to the petitioner''s retirement on 31.12.1999. A period of more than four years has lapsed since then and, therefore, such a proceeding cannot now be initiated. Applicability of Rule 43(b) of the Rules in the facts and circumstances of the present case is, therefore, obviated.

The position perhaps may have been different, had it been a case of recovery of advances simpliciter. The case of the respondents is incomplete execution of work in a deficient manner resulting in loss to the Government.

I must now deal with the judgments relied on by learned counsel for the petitioner. He has first of all relied on the judgment of the Supreme Court reported in D.V. Kapoor Vs. Union of India and others, . That was a case of disciplinary proceeding in terms of Rule 3(1)(ii) of the Civil Services Conduct Rules, 1964 pending which pensionary benefits had been withheld. Interpreting the terms of Rule 3(1)(ii) of the aforesaid Rules, the Supreme Court observed that the pensionary benefits of the employee cannot be withheld until and unless a finding is recorded either in the departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in discharge of his duty while in office as a condition precedent. The judgment is inapplicable to the facts and circumstances of the present case surely for two reasons. The respondents only seek to recover the advance paid to the petitioner and there is no intention to withhold a part or whole of the petitioner''s pension. Secondly, the judgment related to interpretation of the provisions of Rules 3(1)(ii) of the Civil Services Conduct Rules, 1964, which is not the case here.

The petitioner has next relied on the judgment of the Supreme Court reported in State of Bihar and others Vs. Mohd. Idris Ansari, . The Supreme Court had interpreted the provisions of Rule 43(b) as well as Rule 139 of the Rules. The judgment is obviously applicable to the facts and circumstances of the present case for the reason that the State has not invoked any one of those provisions in the present case, nor has disclosed the intention to vary the petitioner''s pension.

Learned counsel for the petitioner has next relied on a Division Bench of this Court reported in Bajrang Deo Narain Sinha Vs. The State of Bihar and Others, . Relying on the aforesaid two judgments of the Supreme Court, this Court held that pension can be withheld only in the case of proved misconduct on the part of the pensioner by way of condition precedent. This is equally inapplicable to the facts and circumstances of the present case for identical reasons.

I must also notice the judgment relied on by learned counsel for the petitioner reported in Smt. Shanti Choubey Vs. The State of Bihar and Others, . The petitioner''s late husband was Assistant Godown Manager in the Bihar State Food and Civil Supplies Corporation and there was loss of foodgrains to the tune of Rs. 19,036.45p., apart from the advance of Rs. 1,000/-. No proceedings was initiated not any action was taken during the life time of the employee and the aforesaid amount on two counts was sought to be recovered from the pensionary benefits admissible to the widow. The learned Single Judge of the Court held that the recovery could not be done in the absence of a proceeding during the life time of the employee. Furthermore action under Rule 43(b) of the Rules was impermissible because of two reasons, namely, the employee was dead and, secondly, more than four years had lapsed. The learned Judge has laid particular emphasis on the status of the petitioner as a widow who cannot answer the charges with respect to her late husband, inasmuch as the proceeding under Rule 43(b) can be initiated only against the employee. In my view, the judgment stood on a different footing because the widow was the petitioner whose case stands on a different footing.

Learned counsel for the petitioner next relied on the order of a learned Single Judge of this Court reported in Pramod Kumar Sinha Vs. State of Bihar and Others, . That was a case where, according to the petitioner, the work was executed and the amount of advance to him was utilized. The respondents also admitted that works were done and bills were submitted by the petitioner but the same not done for which the advance was received by him. The learned Single Judge observed that the only dispute was as to whether the advance received by the petitioner had been utilized for the work for which he had received the advance or the same was utilized for executing a different work for which an action could have been initiated against him while he was in service or after the retirement in terms of Rule 43(b) of the Rules. The Court, therefore, directed that recovery of the amount was unjustified. The facts of that case are not identical with the present one, but appear to be similar. The judgment supports the '' petitioner''s stand.

Learned counsel for the petitioner has next relied on the judgment of a learned Single Judge of this Court reported in Parmeshwar Dayal Verma Vs. State of Bihar and Others, . The petitioner was a Librarian. While he was still in service, a report disclosed that a large number of books were missing from the library during the period he was incharge of the same value at Rs. 2,18,064/- Apart from the books, materials from the store worth Rs. 3,826/- were also missing. Further a sum of Rs. 1,167/- was given to the petitioner as development advance had also remained unadjusted. All these were disclosed in a report submitted while he was still in service but the authorities sat over the matter and no action was taken. The petitioner retired, whereafter a committee was constituted to quantify the amount of losses to the Government which was impugned before this Court. It has been held that such acts of omission and commission on the part of the petitioner prima facie amounted to gross misconduct in several ways. It was open to the disciplinary authority at the time to frame charges and to hold a disciplinary proceeding against him, which was not done. By the time of his retirement, the matter was already seven years old and it was clearly hit by the provisions of Rule 43(b) of the Rules. In that view of the matter, the Court held that the recovery was no longer possible.

In so far as the present case is concerned, the petitioner''s case appears to be on a better footing, namely, in the reported judgment the entire property of the State Government to the extent indicated therein were completely missing. In the present case, on the other hand, the work has been executed and according to the respondent authorities, work to the extent of 85 per cent has been executed and in a deficient manner. I am, therefore, of the view that the petitioner''s case is fully covered by the judgment of this Court in Parmeshwar Dayal Verma (supra).

In the result, I am of the view that recovery of the aforesaid sum of Rs. 4,58,919.40p. is impermissible in the facts and circumstances of the present case. The respondent authorities are hereby directed to release the pensionary benefits of the petitioner accordingly. The petitioner shall be entitled to interest at the statutory rate on the deposits of the general provident fund till the date of payment.

The writ petition is accordingly disposed of.