Ramchandra Prasad vs Jharkhand State Electricity Board And Ors

Heard Mr. Nityanand Pd. Choudhary, learned counsel for the petitioner and Mr. Amitabh, learned counsel for the respondents.

The present writ petition has been filed for quashing resolution dated 01.12.2010 whereby and whereunder the petitioner was imposed with the

punishment of “curtail of 5 % of pensionâ€​ under Rule 139 (C) of Pension Rule, 1950.

The petitioner was initially appointed on the post of Assistant Engineer and joined on 07.08.1973 at Electric Supply Division Office, Bhagalpur and

by way of promotion, he was promoted on the post of Executive Engineer on 9. 12.1997 and was directed to join at Electric Supply Division Office,

Chhapra East. Thereafter, on 07.12.2004, the petitioner was promoted on the post of Superintending Engineer and joined on 01.01.2005 as Electrical

Superintending Engineer at Electric Supply Circle, Dumka.

For certain allegations, the Bihar State Electricity Board, Patna (in short 'Board') had passed a resolution dated 13. 01.2006, whereby it was alleged

that while the petitioner was posted at Electric Supply Division Office, Chhapra, he was prima facie found guilty of misconduct and negligence of duty

and accordingly departmental proceeding was directed to be initiated against him. Thereafter, prior to one month of his superannuation i.e. on

13.03.2007, the respondent-authority served a notice to him vide memo dated 13.03.2007 directing him to submit reply with regard to the charges

levelled against him. Pursuant thereto, the petitioner submitted his reply to Chief Engineer, Board Headquarter, Patna on 19.04.2007 denying all the

allegations but the respondent-authority being not satisfied with the reply again issued second show cause notice on 02.04.2008 under rule 43 (b) of the

Bihar Pension Rule asking him to show cause as to why the action be not taken and his pension be not curtailed under the Rule. In compliance

thereof, the petitioner replied on 20.11.2008. Thereafter, the respondent-authority being not satisfied show caused as to why 5 % of his pension be not

curtailed under Rule 139 (C) of the Bihar Pension Rule, 1950 vide memo dated 9. 08.2010, to which, the petitioner replied on 20.08.2010. But, the

respondent-authority passed the resolution dated 1. 12.2010 whereby the petitioner was imposed with the punishment of “curtail of 5 % of

pensionâ€​ under Rule 139 (C) of Pension Rule, 1950, which is impugned in this case.

Learned counsel for the petitioner submits that from bare perusal of Rule 43 (b) of the Bihar Pension Rule, it is quite apparent that the pension of a

person can be withheld or withdrawn or curtailed only when one is found guilty of grave misconduct or negligence during one's service tenure upon

finding in a departmental or judicial proceeding. But in this case, there is no such finding and without any conclusive finding in the departmental

proceeding, the respondent-authority decided to show cause vide memo dated 09.08.2010 for imposing punishment of curtailment of 5 % of pension

under Rule 139(C) of the Bihar Pension Rules without any conclusive finding of the enquiry officer or any order of disciplinary authority or any finding

of departmental or judicial proceeding. Learned counsel for the petitioner further submits that so far Rule 139(C) of the Bihar Pension Rule is

concerned the essential ingredient for exercising power under the said Rule is that the service of the person concerned was not satisfactory while he

was in service in order to come to a conclusion it is necessary that such a conclusion is based on a finding by a competent authority means that there

must be a Departmental proceeding in which the person concerned is given an opportunity of hearing and the proceedings end with such a finding. But

in this case there is no such finding which has been brought on record. It has further been submitted that during the service tenure of the petitioner no

complaint was made and at the fag end of his service allegations of misconduct and negligence of duty had been made. Furthermore, charge was

served upon the petitioner for the occurrence took place in the year 1990 but he joined that place in the year 1997 after seven years. Learned counsel

for the petitioner further submits that without there being any proof or finding that the petitioner's service was not satisfactory or that he was guilty of

grave misconduct, straightway impugned order 01.12.2010 has been passed, which is liable to be quashed and set aside.

In support of his submission, learned counsel for the petitioner referred to a decision rendered in the case of Jai Govind Singh Vs. Bihar State

Electricy Board & Ors as reported in (2004) 2 JLJR 103, in particular paragraphs 18 and 19, which read as under:

“18.The only other provision through which Pension of a person can be withheld, or withdrawn or curtailed is to be found in Rule 43(b) of the Bihar

Pension Rules, but this also is again subject to a finding in a departmental or judicial proceedings holding that the person concerned is guilty of grave

misconduct or a finding that he has caused pecuniary loss to the Government by misconduct or negligence during his service. Once again, therefore,

even this other proceeding makes a finding in a departmental proceeding sine qua non for purposes of proceeding under Rule 43(b) of the Bihar

Pension Rules. In this case, there is no such finding which has been brought on record. On the contrary, the impugned order, after referring to the

reply submitted, states that the same was not found to be satisfactory and therefore, the charge against the petitioner was proved. Nothing has been

stated as to whether the disciplinary authority had differed with the first finding whereafter the petitioner had been given a notice and subsequently

regular departmental proceedings were held giving him an opportunity to show cause whereafter it was found, on the basis of cogent evidence, that he

was actually guilty of misconduct.

In the absence of the aforementioned essential pre-requisite for invoking Jurisdiction either under Rule 43(b) or under Rule 139 of the Bihar

Pension Rules, it must be held that on the date when the petitioner superannuated, he retired with all rights that accrue to a pensioner in relation to his

Pension and Post Retiral Dues. On the basis of the High Courts earlier order, this could have been subject to a finding recorded in the departmental

proceedings, but no such finding has been brought on record either by the petitioner or by the respondents. On the contrary, the counter-affidavit of

the Jharkhand State Electricity Board also states at paragraph 12 that the petitioner submitted his reply to a show cause notice and after going through

the same and considering all facts and circumstances, the Board fixing the responsibility resolved to award the punishment of stoppage of his 5%

Pension which has been communicated to the petitioner vide Memo No. 786 dated 4.4.2000 (Annexure 7). Thus, the overall and the net result is that

even pursuant to the departmental proceedings which were said to be pending against the petitioner, the same did not conclude with a finding of a guilt

nor was there a difference of opinion differing with the findings of the inquiry officer and therefore, upon the date of his retirement, the petitioner

superannuated with all rights to which a pensioner is entitled.â€​

On the other hand, Mr. Amitabh, learned counsel for the respondent-Board submits that on recommendation of I.G., Cabinet (Vigilance)

Department, a departmental proceeding was drawn up against the petitioner by the Board and the respondent-authority after following due procedure

passed the impugned order, which needs no interference by this Court.

Having heard learned counsel for the parties and on perusal of record, this Court finds that provisions of Rule 43(b) and 139(c) of the Bihar Pension

Rules have not been taken proper care of while passing the impugned order and the impugned order is de hors the provisions of above Rules and

further the Board without jurisdiction passed the impugned order, hence, the impugned order is not sustainable.

Consequently, the impugned orders are quashed and set aside. Respondents are directed to release the withheld pension in favour of petitioner

within a period of eight weeks from the date of receipt/production of copy of this order.

With the aforesaid observations and directions, the writ petition stands disposed of.