Rajnity Jha vs The State of Bihar and Others

Radha Mohan Prasad, J.—The Petitioner in this writ petition is aggrieved by the order dated 4.7.1998, contained in Annexure 19, issued by the Joint Secretary to the State Government in the Water Resources Department, whereby a decision has been taken determining his pension at zero and gratuity at 90% and accordingly the same has been finally approved for payment. The Petitioner has also sought for a mandamus directing the Respondents-authorities to restore his full pension and to pay the arrears over and above the payment already made to him by way of provisional pension and also to pay unpaid 10% of gratuity amount besides direction to suitably compensate Petitioner for the harassment, mental torture and agony.

In short, the relevant facts are that from July, 1980 to 1983 the Petitioner was posted as Superintending Engineer, Minor Irrigation Circle, Dumka with its headquarters at Deoghar. On 23rd/30th June and 7th July, 1983, star question regarding irregularity in purchase of pipes by Minor Irrigation Department was raised on the floor of the Bihar Legislative Assembly and the same was handed over to the Question and Call Attention Committee for its enquiry and report. The said Committee submitted its report and pursuant to it, a departmental proceeding was initiated on 30th October, 1985 against the Petitioner for alleged misconduct in purchase of pipes between 11.7.1980 to 14.11.1983. The Petitioner submitted his show cause on 11.11.1985 denying the charges. Before any order could be passed on the said show cause, he superannuated from service on 30th November, 1987. Since the proceeding against the Petitioner had already been initiated, vide chargesheet dated 30th October, 1985, the same after retirement was converted into one under Rule 43(a) of the Bihar Pension Rules (hereinafter referred to as ''the Rules''), vide Government resolution bearing Memo No. 3388 dated 19.5.1988, contained in Annexure 10. The Departmental Enquiry Commissioner of the State, who was appointed as enquiry officer, under Memo dated 13.6.1988 (Annexure 11) and 22nd September, 1988 (Annexure 12), declined to proceed with the enquiry on technical grounds. The Government, vide resolution dated 1.3.1989, directed for observance of the formalities, yet the Departmental Enquiry Commissioner was not satisfied with the same and again he declaimed to proceed with the enquiry under letter dated 14.3.1989 (Annexure 14).

Thereafter the Petitioner under letter dated 21.7.89 was directed to file show cause reply, whereupon he submitted his show cause reply on 10.8.1989 (Annexure 16) and the same was forwarded to the Departmental Enquiry Commissioner, who on examining the same vide letter No. 688 dated 20.5.1992, once again returned the proceeding to carry out certain procedural formalities. It appears that the Government instead of proceeding further in the said departmental enquiry directed that the Petitioner be served with the notice under Rule 139(a) and (b) of the Rules and the same was duly served on the Petitioner, vide letter No. 1064 dated 30th April, 1998 (Annexure 17). In response to the said notice, the Petitioner submitted his show cause reply dated 4.5.1998 (Annexure 18) and having considered the same, the impugned order dated 8.6.98, contained in Annexure 19, has been passed fixing his pension at zero and gratuity at 90% as the authorities felt satisfied that the Petitioner was guilty of illegal purchase during his posting as Superintending Engineer in the Minor Irrigation Circle, Dumka.

In the counter affidavit filed on behalf of the State of Bihar, the Commissioner, Water Resources Department and the Joint Secretary, Water Resources Department (Respondents No. 1, 2 and 6 respectively), the above facts have not been disputed. However, it has been stated that having considered the show cause reply filed on behalf of the Petitioner in response to the notice under Rule 139(a) and (b) of the Rules, the authorities for the reasons indicated in the impugned order are satisfied that the Petitioner is guilty of indulging in illegal purchase during his posting as Superintending Engineer in the Minor Irrigation Circle, Dumka and that being so, passed the impugned order fixing his pension at nil and gratuity at 90%. It is, thus, submitted that there is no merit in the writ petition and the same be dismissed. The Respondents have annexed the copy of the Cabinet Vigilance report which, according to them, the Petitioner in his written defence dated 10.8.1989 required the Department to make available.

In the reply affidavit filed on behalf of the Petitioner to the said counter affidavit, the fact regarding holding, of departmental proceeding either before retirement or after retirement has been strongly denied and it is asserted that the departmental proceeding initiated against the Petitioner while he was in service was dropped. As such, it is contended that the proceeding earlier dropped cannot be converted into one under Rule 43(a) of the Rules after the Petitioner retired from service and that the same is against the mandate of law and factually also is incorrect.

It has been submitted on behalf of the Petitioner that the exercise of the power by the authority under Rule 139(a) and (b) of the Rules is wholly unwarranted, especially in the absence of finding of guilt recorded against the Petitioner in the proceeding initiated against him earlier. It is submitted that the Petitioner has never been found guilty of misconduct or irregularities pursuant to any departmental or judicial proceeding at any stage either before or even after his retirement from service and as such the impugned order dated 4.7.1998 is based on nonest grounds. According to the learned Counsel for the Petitioner, in fact, no departmental proceeding was even initiated against the Petitioner before his retirement and as such the so-called conversion of the proceeding under Rule 43(a) of the Rules was completely misconceived and not tenable. It is submitted that the Respondents cannot now initiate any proceeding even in terms of proviso to Rule 43(b) of the Rules as the alleged charges relate to the period much beyond the rider of four years provided therein for initiation of such proceeding. Thus, the impugned order is wholly vitiated and the Petitioner is entitled for full pension and gratuity.

Learned Government Pleader No. IX, on the other hand, has submitted that it is not correct to say that no departmental proceeding was initiated against the Petitioner before his retirement. The departmental proceeding was initiated, vide order dated 30th October, 1985, contained in Annexure 4, whereas the Petitioner superannuated from service on 30th November, 1987. It is true that no final order could be passed in the said proceeding before retirement and as such, it was converted into one for passing an order under Rule 43(a) of the Rules. It has been submitted by learned Government Pleader No. IX that under the said circumstances, the rider provided in proviso to Rule 43(b) shall not come in the way of the authority from taking action in the proceeding initiated before retirement. He further submitted that the impugned order passed in purported exercise of the power under Rule 139(a) and (b), in fact, is an order passed in the said proceeding after its conversion under Rule 43 of the Rules which is permissible in view of the Full Bench decision of this Court in the case of Shambhu Saran v. The State of Bihar and Ors. reported in 2000 (1) PLJR 665.

In reply, learned Counsel for the Petitioner has submitted that the Full Bench decision of this Court is not applicable to the facts of the present case. According to the learned Counsel for the Petitioner, bare perusal of Annexure 4 shows that it was just an explanation called for from the Petitioner in order to decide as to whether the, regular departmental proceeding shall be initiated or not. In the Full Bench decision, this Court has simply held that a departmental proceeding initiated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules before retirement can continue even after retirement for the purpose of taking action under Rule 43 of the Rules and not that even calling for an explanation will suffice for taking action under Rule 43 without initiating a proceeding in terms of proviso to Rule 43(b) of the Rules. In any view of the matter, the action under Rule 139(a) and (b) of the Rules is wholly unwarranted and misconceived as it is not the case of the Respondents that the service of the Petitioner has not been thoroughly satisfactory for which the sanctioning authority has taken action under the said provision. Thus, according to him, as no proceeding was initiated before retirement, the entire action of the Respondents against the Petitioner was wholly without jurisdiction, arbitrary and mala fide.

Learned Government Pleader No. IX has ventured to submit that information to the Government servant of the charges framed against him by its service is sufficient to indicate that the disciplinary proceeding was initiated. The form of notice is not of much consequence. In support of this, he placed reliance on the decision of the Apex Court in the case of Delhi Development Authority Vs. H.C. Khurana, . According to him, in the present case, it is admitted by the Petitioner that the charges were served upon him pursuant to Annexure 4 and that he submitted his show cause also, vide Annexure 5, on 11.11.1985, i.e., much before his retirement and, thus, even assuming that the impugned order is purported to have been passed under Rule 139(a) and (b) of the Rules cannot be sustained as it has not been passed on satisfaction of the sanctioning authority that his service has not been thoroughly satisfactory, yet even now the proceeding initiated earlier can continue after retirement in view of the principle laid down by the Full Bench in the case of Shambhu Saran v. The State of Bihar and Ors. (supra).

This Court does not find any substance in the submission of the learned Government Pleader No. IX. Bare perusal of Annexure 4 shows that the Government was not sure as to what action should be taken against the Petitioner. Earlier part of it shows that on the ex parte enquiry conducted by the Vigilance Department, the Petitioner has been found responsible for the alleged so-called purchases of C.I. pipes worth Rs. 62.40 lacs and by the latter part of the said order he was required to submit explanation to the charges mentioned in the charge sheet, failing which it would be presumed that he had nothing to say and necessary action shall be initiated with respect to regular departmental proceeding. The document, which was annexed to the said Annexure 4, shows that it was memo of allegations and not charge sheet.

In the case of Delhi Development Authority v. H.C. Khurana (supra), the Apex Court has considered this aspect. It was held that the service of chargesheet on the Government servant follows the decision to initiate disciplinary proceedings, and it does not preclude or coincide with that decision. It was further held that the delay, if any, in service of the charge sheet to the Government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceeding, inasmuch as information to the Government servant of the charges framed against him, by service of chargesheet, is not a part of the decision making process of the authorities (or initiating the disciplinary proceeding. Thus, the said principle decided by the Apex Court also supports the case of the Petitioner that mere information regarding the charge is not a part of the decision making process of the authority for initiating a disciplinary proceeding. The charges communicated, vide Annexure 4, were with respect to a preliminary enquiry before initiating a regular departmental proceeding as is also evident from the very wordings of Annexure 4.

In the case of Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, , the Apex Court has held that a regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latter''s explanation is obtained. The Constitution Bench of the Apex Court in the case of Champaklal Chimanlal Shah Vs. The Union of India (UOI), exactly in similar situation has held that a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out and it is very necessary that the two should not be confused.

Thus, this Court finds it difficult to hold that a departmental proceeding was ever initiated against the Petitioner before his retirement. As such, the question of continuance of the same under Rule 43 of the Rules in the light of the Full Bench decision in the case of Shambhu Saran v. The State of Bihar and Ors. (supra) was/is not permissible. A proceeding could be undertaken against the Petitioner even after retirement, but it could only be subject to the rider provided in the proviso to Rule 43(b) of the Rules. As admittedly the charges relate to the period July, 1980 to 1983 i.e., much beyond four years even the order of so called conversion of the alleged proceeding, vide Government resolution dated 19th May, 1988, contained in Annexure 10, cannot be sustained in view of the bar as provided in Sub-clause (ii) of Clause (a) of proviso to Rule 43(b) of the Rules which provides that it shall be in respect of an event which took place not more than four years before the institution of such proceedings.

Under such circumstances, this Court finds substance in the submission of the learned Counsel for the Petitioner that the Respondents cannot now initiate any proceeding even in terms of the said proviso as the alleged charges relate to the period much beyond the rider of four years provided therein for institution of such proceeding. The impugned order in exercise of the power under Rule 139(a) and (b) cannot also be sustained as it is based solely on the said charges with respect to which no proceeding has been held and finding recorded as admitted by the Respondents. Moreover, it is not on the ground that the service of the Petitioner has not been thoroughly satisfactory for which under Rule 139(b) of the Rules the authority sanctioning the pension has been vested with the power to make such reduction in the amount as it thinks proper.

Accordingly, this writ petition is allowed. The impugned order, contained in Annexure 19, is quashed and the Respondents are directed to release the remaining pensionary dues of the Petitioner within two weeks of the receipt/production of a copy of this judgment/order. However, in the facts and circumstances, there shall be no order as to costs.