Ram Awadhesh Sharma vs The State of Bihar and Others

S.J. Mukhopadhaya, J.—The case relates to curtailment of pension and gratuity permanently under Rule 43(b) read with Rule 139 of Bihar Pension Rules, 1950. The petitioner against whom a departmental proceeding was initiated, while in service, the same was treated to be a proceeding under Rule 43(b) and on conclusion, after retirement, the Government decided to withhold 100% pension and gratuity, permanently. Notice was pressed under Rule 43(b) read with Rule 139 dated 13th January, 1998 and the final order passed to that effect on 21st January 1999, are under challenge.

In this case, the questions to be determined are:

(i) Whether a departmental proceeding initiated against a Government employee, while in service, on retirement can be deemed to be a proceeding under Rule 43(b) of Bihar Pension Rules or not ?

(ii) Whether a ''departmental proceeding'' initiated against a Government employee, while in service, on retirement, if converted/treated as a proceeding under Rule 43(b), the State of Bihar can pass any penal order withholding/withdrawing pension and gratuity in respect of an allegation prior to four years of institution of such proceeding ?

The fact, as admitted, is that the petitioner was a Member of Bihar Engineering Service Class-II of Water Resources (Irrigation) Department of State of Bihar. He was placed on deputation under Minor Irrigation Departmental 1985, but subsequently reverted back to parent department in 1990. He was suspended on 19th November, 1992 by an order issued by the State from Minor litigation Department and subsequently charge sheeted by same department on 23rd March, 1993. In the charge sheet, allegation levelled relating to certain work performed by petitioner along with others in between April, 1985 and March, 1988 while petitioner was on deputation in Minor Irrigation Department.

Against the order of suspension, the petitioner moved this Court in C.W.J.C. No. 5808/95 which was disposed of on 28th August, 1995. While the Court did not choose to interfere with the order of suspension, vide order dated 28th September, 1995, respondents were directed to conclude the enquiry and pass final order by 31st December, 1995 with stipulation that the proceeding, if not concluded by the said date, the order of suspension shall stand vacated since 1st January, 1996.

Admittedly, the departmental proceeding was not concluded nor final order passed and the order of suspension stood vacated since 1st January, 1996. However, no salary having paid, the petitioner had to prefer M.J.C. No. 429/96, which was disposed of on 4th October, 1996 as by that time the proceeding was stated to have been concluded and the petitioner was given liberty to raise all grievances before the disciplinary authority.

In fact, no order was passed in the departmental proceeding and petitioner superannuated on 31st January, 1997 or attaining 58 years of age.

Subsequently, the State treated the said departmental proceeding, a proceeding under Rule 43(b) of Bihar Pension Rules, and vide Memo dated 13st December, 1997(Annexure-20) decided to withhold full (100%) pension and gratuity, permanently on the ground that the gravity of the charges as stood proved related to such misconduct, which would have entailed the petitioner''s dismissal from service, if he would have been in service. Thereafter, the impugned notice under Rule 139 of Bihar Pension Rules was issued on 13th January, 1998 followed by impugned order dated 21st January, 1999.

The counsel for the petitioner raised the aforesaid two questions and relied on specific averments made in the writ petition, reply thereto, as given in the counter affidavit and decisions of this Court and the Supreme Court, which will be discussed at appropriate stage.

However, before discussion, it is necessary to take into consideration relevant rules framed by the State of Bihar.

A ''disciplinary proceeding'' is generally started, while an employee is in the service or re-employment. The competent authority/State has power to punish such employee if found guilty in such proceeding, under B. & O. Subordinate Service (Discipline & Appeal) Rules, 1935 or Civil Services (Classification, Control & Appeal) Rules, 1930. Such punishment can be inflicted while the employee is in service However, a "retired Government Servant'' cannot be punished, in the sense, that none of the punishment specified in the service Rules can be inflicted upon him after his superannuation." [Quoted from unreported Division Bench decision in the case of Bachchu Prasad Gupta vs. State of Bihar & others, in L.P.A. No. 1418/98, disposed of on 13.12.1999].

The same view was taken by this Court in the case of Bindhya Nath Jha and Another Vs. The Patna Regional Development Authority and Another, .

The other provision for "departmental proceeding" has been laid down under Rule 43(b) of the Bihar Pension Rules, 1950; but no such departmental proceeding stipulated under other Rule 139 of the said Rule.

To determine the issue, it is fit and proper to set out Rule 43 of the Bihar Pension Rules, 1950, as shown below:

(a) Future good conduct is an implied condition of every grant of a pension. The provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under the rule, shall be final and conclusive.

(b) The State Government further reserve to themselves the right of withholding or 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 after retirement :

Provided that-

Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment; shall not be instituted save with the sanction of the State Government; shall be in respect of an event which took place not more than four years before the institution of such proceedings; and 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 subclasses (ii) of clause (a); and

(c) The Bihar Public Service Commission, shall be consulted before final orders are passed.

Explanation.-For the purposes of the rule-departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to have been instituted:

(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge sheet is submitted, to a criminal court; and

(ii) in the case of civil proceedings, on the date on which a complaint is presented, or as the case may be, an application is made to a civil court.

On the other hand, the other rule relating to curtailment of pension, gratuity i.e. Rule 139 of the Bihar Pension Rules, reads as follows:

(a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved.

(b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper.

(c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, or any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed.

From the Rule 139(a) aforesaid, it will be evident that an employee as a matter of course is not entitled to full pension, which is payable subject to certain riders.

While past record, including conduct as recorded required to be seen for grant of full pension under Rule 139(b) future good conduct is an implied condition of every grant of a pension under Rule 43(a). Even on the basis of future conduct, the Government has a right to withhold or withdraw a pension or part thereof.

Rule 43(b) empowers the State to withhold or withdraw a pension or any part of it, permanently or for a specified period, if it comes to the notice of the State any grave charge of mis-conducting causing pecuniary loss to the Government by misconduct or negligence, while the person was in service, but where final decision can be taken only on enquiry after the retirement.

Substantive Rule 43(b) stipulates withholding or withdrawing a pension on part thereof, if pensioners found guilty of misconduct/causing pecuniary loss by misconduct or negligence, in departmental or judicial proceeding does not confine to any departments proceeding whether initiated while in service or after retirement. Thus, on play-reaping of substantive Rule 43 (b). it will be evident that the same includes both the departmental or judicial proceeding whether started while in service or after'' retirement.

The only bar to proceed in such departmental proceeding laid down under proviso to Rule 43(b) wherein the power to initiate departmental/judicial proceeding after retirement is vested with the State and not to any other authority, it also: prohibits initiation of such proceeding respect of an event which took place; more than four years before institution of such proceeding. Thereby, it can be here that a departmental proceeding initiated against an employee while in service can be treated to be a proceeding under Rule 43(b), and may proceed even after retirement, as explained in sub-clause (a)/(b) to the explanation given below Rule 43(b) which is part of the rule.

In some of the cases, one or other learned single Judge was of the view that there cannot be any automatic con tendency of a proceeding, for the purpose of Rule 43(b), till specified order is passed by the State immediately before retirement of the employee concerned to continue the same. Reliance can be placed in the case of Ram Equbal Sharma vs. State of Bihar & ors 1997(1) All P.L.R. 161; Andrika Prasad Singh Vs. The State of Bihar and Others, . However, the explanation below Rule 43(b), or the decision of the Full Bench of this Court in the case of Shambhu Saran Vs. The State of Bihar and Others, , which was disposed of as back as on 18.11.1991 were not brought to the notice of the Court.

A learned single Judge of this Court in the case of Braj Kishore Prasad Shrivastava Vs. The Bihar State Electricity Board and Others, took into consideration different decisions rendered by this Court and the Supreme Court. Taking into consideration the explanation below Rule 43(b) held that a departmental proceeding initiated against an employee with regard to misconduct, while in service does not come to an end as a result of superannuation and can continue, for the purpose of Rule 43{b). Similar view taken by the Division Bench of this Court in the case of Bachhu Prasad Gupta vs. State of Bihar & Ors. (unreported) in L.P.A. No. 1418/98, disposed of on 13.12.1999. The Division Bench held that a proceeding initiated against an employee while in service, may continue for the purpose of Rule 43(b) and on the basis of finding, action can be taken for withdrawing/withholding whole or part of pension, if found guilty of misconduct or otherwise.

Similar like Rule 43(b) explanation thereto, Rule 9 of Civil Services Pension Rules 1972 also stipulates deemed continuance of departmental proceeding if initiated under Rule 9(2) of Civil Service Conduct Rules, even after retirement, for the purpose of penal action in the matter of payment of pension. The aforesaid Civil Services Rules fell for consideration before the Supreme Court in the case of D.V. Kapoor vs. Union of India [1990)4 S.C.C. 314] wherein the Apex Court held that the departmental proceeding deemed to be continuing after retirement, for the purpose of Civil Services Pension Rules. Similar view was taken by the Supreme Court in the case of High Court of Punjab & Haryana vs. Amrik singh [1995 Suppl. (1) S.C.C. 221].

The Full Bench of this Court in the case of Shambhu Saran (supra) while dealing the provision in question [Rule 43(b)], held as follows:

The only point involved before us is whether Rule 43(b) is attracted in the facts of this case and whether under the said Rule, even when such disciplinary proceeding was initiated before the retirement, whether it could be continued after the retirement under the provisions of Rule 43(b). It is true that Rule 43 does not say expressly that such proceeding may be continued after such superannuation. However, in our opinion, it is inherent in the said Rule. The opening words of proviso (a) state that "such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment." In our opinion such expression makes it quite clear that such enquiry if initiated before, may be continued even after such retirement. In any event by necessary implication also it is quite clear that continuance of such enquiry after superannuation is permitted by the said Rules. In this context, it may be pointed out that if the Government servant is in service, the disciplinary proceeding can be initiated against him and certain punishments may be imposed upon him as provided in the relevant classification, control and Appeal Rules. However, such punishments cannot be imposed upon him if retired from service. After his retirement he cannot be punished otherwise but pension can be withheld and other steps taken as contemplated by the said Rule 43. Punishments, major or minor, like dismissal or removal from service or withholding of increments etc. which contemplates that he is still in service, cannot be imposed upon him. In such view of the matter, if such a person has committed some wrong, merely because he retires and no remedy remains available to the Government even if there was good case against him, then it would be incongruous. Accordingly, such a provision was made to that effect. It is in order to fill up this lacuna that provisions like Rule 43(b) has been introduced.

In a case whether a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary.

Earlier, a Division Bench of this Court in the case of Singeshwari Sahay vs. The State of Bihar & Ors. (1979 B.B.C.J.735) held that the departmental proceeding cannot continue after retirement even under Rule 43(b), in absence of specific order by the State. The aforesaid decision of the Division Bench was reversed by the Full Bench in the case of Shambhu Saran (supra).

In view of aforesaid decisions, including the decision of the Full Bench of this Court in the case of Shambhu Saran (supra), it can be safely stated that a departmental/judicial proceeding initiated against a State Government employee while in service will be deemed to be continuing as a proceeding under Rule 43(b), after retirement, if it does not reach finality while the employee in service.

Now the question arises as, to whether any period of limitation prescribed under the Bihar Pension Rules in the matter of curtailing/withholding of pension and which authority has jurisdiction to curtail the same.

From plain reading of Rule 139(a) and (b), it will be evident that the ''Sanctioning authority'' is empowered to sanction a pension or may reduce the amount, if the service of the employee has not been thoroughly satisfactory No limitation prescribed therein for reduction of pension, at the time of initial sanction which is to be granted on the basis of service record. The State Government except in a case where it is the sanctioning authority has otherwise no right to withhold/curtail pension, if already sanctioned by the competent authority.

Under sub-rule-C to Rule 139 by way of ''revision'' power, such curtailment-can be made by the State if the service by the pensioner is ''not thoroughly satisfactory'' or ''there is proof of grave misconduct''. However, for exercising such revision power to curtail the pension, limitation of three years prescribed which'' is to be counted from the date, the pension is sanctioned by the competent authority. The question of limitation has also been prescribed under sub-cause- of clause (a) to the proviso under Rule 43(b) wherein four years period of limitation has been prescribed and to counted from the date of institution of proceeding. Therein, specific stipulation made not to pass penal order under Rule 43(b) in respect of an event which took place more than four years before the in situation of proceeding.

The aforesaid period of limitation prescribed under Rule 43(b) and Rule 139 fell for consideration before the Supreme Court in the case of State of Bihar vs. Md. Idrish Ansari 1995 Supply. (3) S.C.C. 56 : 1995(2) PLJR (SC) 51]. In the said case, the Supreme Court observed and held as follows :

A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the Government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years'' old, rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27.9.1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17.10.1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition no. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17.10.1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned notice dated 27.9.1993. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17.10.1987.

So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired Government servant or not in the circumstances contemplated by the Rule. The first circumstance is that if the service of the Government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of the Government servant concerned white in service, the State Government in exercise of revision power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revision power has to be exercised in consonance with the principles of natural justice and secondly such revision power can be exercised only within three years from the date of the sanctioning of the pension for the first time. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture:

A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the seen/ice record of the respondent was not thoroughly satisfactory.

Even if the service record of the officer concerned is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct of the officer concerned during his service tenure, the State Government can exercise revision power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favor by the sanctioning authority and not beyond that period.

So far as the second type of cases are concerned the proof of grave misconduct on the part of the Government servant concerned during his service tenure will have to be culled out by the revision authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 31.1.1993 and the show-cause notice was issued on the ground of grave misconduct on 27.9.1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27.9.1993 meaning thereby it should have been committed during the period from 26.9.1989 up to 31.1.1993 when the respondent retired. Only in case on such a misconduct, departments proceedings could have been initiate against the respondent under Rule 43(b). In such proceedings, it he WAS found guilty of misconduct he coal have been properly proceeded again under Rule 139(a) and (b). On the. facts of the present case it must by held, agreeing with the High Court that the notice dated 27.9.1993 invoking, powers under Rule 139 (a) and (b) was issued wholly on the ground of allege past misconduct and was not based on the ground that service record of the respondent was not thoroughly sates factory. So far as that ground was con corned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed to, the respondent prior to 4 years from the date on which the show-cause notice dated 27.9.1993 was issued, the appellant authority had no power to it: vole Rule 139(a) and (b) against the respondent on the ground of prove misconduct. Consequently, it had to the held that proceedings under Rule 1st were wholly incompetent. The High Court was equally justified in quash the final order dated 13.12.1993 there is no proof of such a misconduct'' No question of remanding the proceed inks under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in are departmental proceedings after the expiry of four years from 1986-87 such proceedings would be clear barred by Rule 43(b) proviso a) Consequently the show-cause notice dated 27.9.1993 will have to be carnation as still born and ineffective from its caption Such a notice cannot the resorted to for supporting any free(sic) proceedings by way of remand. For these reasons no case is made for on interference in this appeal. In the reason appeal fails and is dismissed. There is no order as to costs.

In view of aforesaid decision of the Supreme Court in the case of Md. Idrish Ansari [1995 Suppl. (3) S.C.C. 56 : 1995(2) PLJR (SC)51], one can come to a definite conclusion that no penal order under Rule 43(b) can be passed for withholding/curtailing of pension or part thereof, for temporary or permanent period in respect of an event which took place more than four years before institution Or such proceeding. In a case where proceeding is instituted after the retirement, must be in respect of an event which took place within four years before institution of the said proceeding and not of an earlier period. The same principle is applicable in the case of departmental proceeding instituted prior to retirement, for the purpose of withholding/curtailing of pension or part thereof and no penal order can be passed in respect of an event which took place more than four years prior to institution of such proceeding, as held by Supreme Court in the case of Md. Idrish Ansari (supra).

After retirement, all the (ex) employees belonged to common class of retired employees, who are entitled for retrial benefit, in accordance with law. No classification can be made except on valid ground having a nexus to achieve some object.

From the limitation prescribed under proviso to Rule 43(b), it appears that in respect of allegation/events four years prior to the institution of proceeding, the Government has taken lenient view, not to proceed departmental; not to pass penal order of curtailment of pension but to pay full pension. If such benefit is given to retired employee, the same benefit cannot be denied to other similarly situated retired employee on the ground that the Government was vigilant and instituted a proceeding while the employee was in service. This will amount to giving premium to employees in whose cases the competent authority or the State was not vigilant. If such classification is made, the same having no nexus with the object to achieve may render the proviso to Rule 43(b) volatile of Article 14 of the Constitution of India.

In the aforesaid background, in the light of decision in case of Md. Irish Ansari (supra), (Supreme Court) no penal order can be passed in respect to an event which took place more than four years before institution of proceeding under Rule 43(b) read with Rule 139 of the Bihar Pension Rules and no distinction can be made on the ground of institution of proceeding prior to or after retirement. 18A. On the basis of provisions as laid down under the Rule and decisions as referred above, the Rules 43(b) and 139 can be summarized as follows:

The full pension is admissible only if the service rendered by a person has been approved and not to be given as a matter of course [Rule 139(a)].

The sanctioning authority may reduce the pension, at the time of initial sanction, if the service had not been thoroughly satisfactory, on the basis of service records [Rule 139(b)].

Once pension is sanctioned by the sanctioning authority, the State Government cannot reduce the same, except under Sub-rule-C to Rule 139, under revision power, which should be based on service record or proof of grave misconduct, recorded while in service. However, such revision/reduction of pension cannot be made, if not made within three years from the date of his sanction of pension [Rule 139(c)].

Even after retirement and sanction of pension for future misconduct, the Government can withhold or withdraw the pension or part thereof, if convicted of a serious crime or found guilty of a grave misconduct. That means, even after retirement, a retired employee is to maintain good conduct for grant of each and every month pension otherwise the same may be curtailed, if convicted [Rule 43 (a)].

In respect of an allegation/event, while in service if proceeding is not initiated or concluded, for such allegation, pension or part of it can be withheld permanently or for a specified period or recovery from pension can be made.

However, such event must have taken place within four months (sic years ?) from the date of institution of a proceeding and not of prior period. Such curtailment can be made, if found guilty for misconduct or if found to have caused pecuniary loss to the State Government by misconduct or negligence during the service [Rule 43(b)].

The same principle to be applied in respect of a judicial proceeding.

In the present case, the event relates to the period from April, 1985 to March, 1988, in respect of which departmental proceeding was initiated, while the petitioner was on deputation in Minor Irrigation Department. He was suspended on 19.11.1992 and Memo of charges were issued on 23.3.1993. Even in terms with the explanation given below proviso to Rule 43(b), if the said departmental proceeding is deemed to be a proceeding for the purpose of Rule 43(b) and dates back to the date of suspension (19.11.1992), the event being more than four years prior to the institute ion i.e., the event being of earlier Peron to 19.11.1988, the State Government has no jurisdiction to withhold or curtail pension, temporarily or permanently which ground is enough to set aside they impugned orders dated 13.1.1998 an 21.1.1999.

At paras-26, 27, 28 & 33 of writ petition, the petitioner has specifically state'' that he requested to supply the reliever evidences and the list of witnesses by the respondents neither supplied the hip of documents, nor list of witness or has The petitioner was merely asked to look into the documents, without giving reference of evidences. Only the supervision note of the police authority was server and no other document. In spite of on vacation of order of suspension in view of Court''s order, the petitioner was create under suspension. These facts have on been disputed by the respondents.

Annexure-6, a resolution date 23.3.1993 is the charge sheet contains five imputation of charges; only or evidence i.e. extract of report submitted by the S.P. Nalanda cited as prosecution evidence. No other document, nor nun of any witness has been shown there as prosecution evidence/witness.

From the enquiry report, it will the evident that the same is not based to any evidence. The enquiry officer has or cited any evidence, nor statement of any witness to bring home the charges. Meanly giving extract of charge; gist of show cause reply submitted by petitioner given a finding of his own, not based on as evidence.

Thereby, it will be evident that the enquiry was conduce in violation rules of natural Justice and the enquire report is not based on.

In the aforesaid background, punitive order could have been passed against the petitioner on the basis of such enquiry & enquiry report.

This apart, the non-application of mind on the part of the respondents will be evident that though Rule 139 was not applicable in the case and the order had been passed under Rule 43(b), still notice was issued both under Rule 43(b) read with Rule 139, on 13.1.1998.

For the reasons aforesaid, the impugned orders dated 13.1.1998 and 21.1.1999 are set aside with direction to the respondents to pay full pension and gratuity to petitioner, after adjustment of amount if any, paid within a period of three months. On failure to pay the admitted dues within the aforesaid period of three months, the respondents will be liable to pay penal interest @ 10% on such admitted dues to be calculated from the date of retirement till the same is being paid. The writ petition is allowed, with the aforesaid observations/directions.