Ram Swaroop Prasad vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard counsel for the petitioner and the counsel for the State.

The prayer in this writ application is to quash an order of punishment dated 15.9.1997 (Annexure 9) withholding 15% pension of the petitioner for certain misconduct as also yet another order of punishment dated 8.7.1999 (Annexure 15) inflicting further punishment including withholding of another 20% pension on the allegation that the petitioner had knowingly continued in service even after attaining the date of his superannuation.

Counsel for the petitioner has submitted that both the impugned orders are bad, inasmuch as the departmental proceeding against the petitioner was initiated after his retirement at a point of time, when he had already gone out of disciplinary control of the respondents. In this context he has also taken a stand that the no action against the petitioner could have been taken in terms of Rule 43(b) of the Bihar Pension Rules in view of an embargo of four years of the event from the date of initiation of the proceeding. He has also contended that the petitioner in fact was given no effective opportunity to defend himself as against the order of punishment dated 8.7.1999 arising out of the second proceeding which was by way of a regular departmental proceeding and the first order of punishment dated 15.9.1997 was passed without even initiating a departmental proceeding. He therefore by placing reliance on the judgment of the Apex Court in the case of Nand Kishore Prasad Vs. State of Bihar and Others, as also the judgment of this Court in the case of Md. Fakhruddin Vs. State of Bihar and Others, has further asserted that in the second proceeding even the memo of charge was never served on him and as such, the ratio laid down by the Apex Court in the case of Union of India and Others Vs. Dinanath Shantaram Karekar and Others, would be squarely applicable with full force in the case of the petitioner.

Counsel for the State on the other hand with reference to the counter affidavit filed in this case has however submitted that it is not a case where memo of charge was issued after the retirement of the petitioner. In this context he has pointed out that the work of the petitioner in capacity of the Executive Engineer was made subject matter of some internal enquiry by a Flying Squad and there were three reports of the Flying Squad dated 5.7.1993, 26.12.1994 and 20.12.1996 which necessitated taking of disciplinary action against the petitioner. The first memo of charge in relation to the first Flying Squad report was issued on 21.7.1995 whereafter when no response was made by the petitioner a reminder was issued on 13.8.1996 and the petitioner had actually responded to the said reminder by sending his reply on 2.9.1996 that he had not received the memo of charge dated 21.7.1995. Thereafter on 10.01.1997 a press release was issued in the daily newspaper notifying the issuance of memo of charge to the petitioner as also asking him to file his show cause reply and in response to the said press release the petitioner had written letter dated 12.1.1997 whereafter he was again sent the memo of charge dated 21.7.1995 vide letter No. 603 dated 22.2.1997.

Similarly, as with regard to the second memo of charge, Learned Counsel for the State has explained that the same was pertaining to the second report of the Flying Squad which was sent to the petitioner by letter No. 98 dated 10.1.1997 and the petitioner having received the same on 31.1.1997 had submitted his show cause reply on 18.2.1997. He has also contended that a third memo of charge again was issued to the petitioner vide letter No. 652 dated 26.2.1997 but the petitioner did not reply the same.

Though the petitioner has filed a rejoinder to the counter affidavit but there is no denial to the aforesaid facts asserted in the counter affidavit and the only defence of the petitioner in reply to the counter affidavit is that once the petitioner had gone out of disciplinary control on account of his superannuation on 31.1.1997 the service of any memo of charge pertaining to service period in terms of Rule 55 of the Civil Services Classification Control and Appeal Rules would not hold ground for the purposes of inflicting punishment under Rule 43 of the Bihar Pension Rules.

This Court having noted the aforesaid undisputed facts is not required to go into question of law pertaining to validity of such memo of charge served on the petitioner after his retirement afresh because a Division Bench of this Court in the case of The State of Bihar and Others Vs. Man Bahadur Mahto and Another, as also a learned Single Judge in his elaborate judgment on this issue in the case of Sudheshwar Nath Vs. State of Bihar and Others, have laid down the law while distinguishing the issuance of memo of charge vis-a-vis its communication or service on the delinquent. It has been held therein as a proposition of law in terms of Rule 43(b) of the Bihar Pension Rules that the moment a memo of charge is issued the departmental proceeding shall be deemed to have been initiated and as such, its service on the petitioner cannot be made a ground for making the proceeding one under proviso to Rule 43(b) of the Bihar Pension Rules envisaging bar of four years for the event in question. Thus as the memo of charge was already issued to the petitioner before his retirement the resultant proceedings could not be held to be bad only because the petitioner was successfully evading service of memo of charge so much so that the Respondents had ultimately public the same in the daily newspapers.

That being so, this Court must reject the first part of the submission of the counsel for the petitioner that the charges served on him with regard to the first proceeding and the first order of punishment were not fit to be acted upon. In that view of the matter, as the law has again been settled by the Full Bench of this Court in the case of Shambhu Saran Vs. The State of Bihar and Others, that once a proceeding before retirement is initiated the same shall be deemed to be continued for the purposes of inflicting punishment under Rule 43(b) of Bihar Pension Rule for the event in question it must be held that the proceeding which was initiated against the petitioner was wholly justified.

The second limb of the submission of the learned Counsel for the petitioner that no regular departmental proceeding was held for inflicting punishment as against the first order also does not much of substance because if proceedings in terms of Rule 55A of the Civil Services Classification Control and Appeal Rules have been initiated the same could be also continued in terms of Rule 43(b) as has been held by the Division Bench of this Court in the case of State of Bihar and Others Vs. Bipin Bihari Prasad and Another,

The problem for the State, however, still would be how can it justify its impugned order which even if accepted to be in terms of Rule 55A would not fulfil the test as laid down by this Court in the case of Ramawati Devi Vs. State of Bihar, wherein this Court had held that even if Rule 55A of Civil Services Rules for inflicting minor punishment would not contemplate a full-fledged departmental proceeding but then the order of punishment has to be a speaking order and that too showing application of mind to the defence furnished by the delinquent in his show cause reply. Judged on the parameters of the aforementioned Division Bench in the case of Dr. Rabindranath Singh (supra) this Court must hold the first impugned order inflicting punishment of withholding of 15% pension of the petitioner to be bad, inasmuch as the entire consideration of show cause reply by the petitioner therein is in one word that the same was ''unsatisfactory''.

That being so, the impugned order, as contained in Annexure 9, is hereby quashed.

As with regard to the second proceeding, there would be no difficulty in holding that the petitioner having intentionally and deliberately continued in service for a period over six months beyond the date of his retirement was definitely liable to be proceeded with regard to an event which had taken place after his retirement, therefore, the department had also correctly initiated a departmental proceeding. Thus the plea of the petitioner of the bar under Rule 43B of Pension Rules would not be applicable. Reference in this connection may be made to the judgment of Apex Court in the case of Radha Kishan v. Union of India reported in 1997(2) PLJR 129 (SC), wherein it was held:

This SLP arises from the order of the Central Administrative Tribunal, Patna Bench made on November 26, 1996 in OA No. 652/95. The petitioner had joined the service in Telecommunications Department. Admittedly, his date of birth is May, 13, 1933. On attaining the age of superannuation, he was to retire on May 31, 1991. Instead, he remained in service till May 31, 1994. When action was taken to recover the amounts paid to him for the period beyond the date he was to retire viz. May 31, 1991 and to which he was not entitled, he filed OA in the Tribunal and the same has been dismissed. Thus, this special leave petition.

The learned Counsel for the petitioner contends that since the petitioner has worked during the period he is entitled to the payment of the pay and allowance from 1.6.1991 to 26.6.1994 and that he is also entitled to the payment of provisional pension, Death-cum- retirement gratuity, leave encashment, computation of pension amount, GPF money and the amount deposited under CGHS on the plea that he retired from service on May 31, 1994. We are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the abovesaid date when admittedly he was to retire on May 31, 1991. It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the Establishment in the concerned section for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances we do not find any illegality in the action taken by the authorities in refusing to grant the benefits.

It is then contended that the petitioner would have conveniently secured gainful employment elsewhere and having worked, he cannot be denied of the legitimate salary to which he is entitled to. Though, the argument is alluring, we cannot accept the contention and give legitimacy to the illegal action taken by the authorities. If the contention is given acceptance it would be field day for manipulation with impugnity and one would get away on the plea of equity and misplaced sympathy. It cannot and should not be given countenance.

Under those circumstances, we dismiss the petition with a direction to the Government of India to take appropriate disciplinary action against all the persons concerned for their deliberate dereliction of duty in not ensuring the petitioner''s retirement on his attaining the age of superannuation.

(Underlining for emphasis)

It has to be taken into consideration that the petitioner was a gazetted officer of the State and therefore he had owed a duty to demit his office on the date of his superannuation. His having not done so by itself is a gross misconduct which can be dealt with under Rule 43 of Bihar Pension Rules.

The difficulty however for the department is that the memo of charge of the proceeding initiated against the petitioner for continuing in service beyond the date of retirement was not served on him and it is the specific case of the petitioner, not controverted in the counter affidavit, that the petitioner had not been served with the memo of charge of the said proceedings. Therefore, this Court would also find that the ratio of the judgment of the Apex Court in the case of Dinanath Shantaram Karekar (supra) shall be applicable and the entire action taken as with regard to the second enquiry and the consequential order will have to be held to be bad in absence of service of the charge sheet on the petitioner. Consequently the second order of punishment dated 8.7.1999 (Annexure 15) cannot be sustained and is also hereby quashed.

As this Court has quashed both the orders of punishment only on technical grounds and some of the charges against the petitioner are very serious against the petitioner, which are well covered within the ambit of Rule 43 of the Bihar Pension Rules, namely, gross misconduct and/or causing loss to the State exchequer, this Court will have to give liberty to the respondents to issue a fresh compact show cause notice which must be confined to the aforementioned parameter of Rule 43(b) i.e. gross misconduct and/or causing loss to the State exchequer. Such proceedings under Rule 43 by way of a show cause notice with memo of charge if issued by the respondents the petitioner will be under obligation to file his reply within a period of two months from the date of service of such memo of charge, failing which the Respondents would be at liberty to pass an appropriate reasoned order on the basis of materials on record.

In order to avoid any further possibility of non-service of such show cause notice and the memo of charge the petitioner is hereby directed to report to the office of the Principal Secretary of Water Resources Department within 15 days of the receipt of this order whereafter the show cause notice with memo of charge pertaining to the enquiry to be held in terms of Rule 43(b) of Pension Rules would be furnished to the petitioner. The petitioner upon service of such memo of charge and show cause notice would file his reply within two months and if he would deny the charges, an enquiry by way of full fledged departmental proceedings would be conducted by the Enquiry Officer appointed by the departmental Secretary. The Enquiry Officer would be required to complete his enquiry within a period of four months from the date of filing of the show cause reply by the petitioner. The final order as against the petitioner again in terms of Rule 43(b) only must be passed within a period of three months from the date of submission of the enquiry report. It is further directed that entire exercise by the Respondents as against the petitioner, who has retired from service on 31.1.1997, must be completed expeditiously within the time frame as indicated above and the Respondents would be liberty to proceed ex-parte in the event of non-cooperation of petitioner.

Any financial benefit to the petitioner including arrears and current pension/other retirement benefit would strictly abide by the result of the final order in terms of the enquiry now sought to be conducted under the orders of this Court. In other words the petitioner for the present would continue to receive 65% of pension till the enquiry is completed and final order as directed is passed against the petitioner.

With the aforesaid observations and directions, this writ application is allowed only to the extent indicated above. There would be, however, no order as to costs.