Patna High Court
Ram Nandan Prasad Sinha vs State Of Bihar And Ors. on 9 May, 2001
Equivalent citations: 2001(2)BLJR1452
JUDGMENT Sachchidanand Jha, J.
1. A short but significant question of law is involved in this letters patent appeal. The question relates to the procedure meant to be followed in conducting proceeding under Rule 43(b) of the Bihar Pension Rules.
2. The petitioner is a retired Government servant. He superannuated from the post of Head Accountant, Purnea Treasury on 31-12-1990. On 24-11-1992 he was served with a notice seeking explanation on certain points relating to provident fund withdrawals by some officers/employees of the Irrigation Department. Earlier, Khazanchi Hat P.S. Case No. 149/91 (State v. Devendra Prasad Srivastava) had been instituted by the Treasury Officer, Purnea in which the petitioner was not named as an accused. In the charge-sheet too, he did not figure. On 8-12-1992 the petitioner submitted his explanation. On 14-5-1993 he was informed by the Director of Treasuries that inquiry was proposed to be held under Rule 43(b) of the Bihar Pension Rules (in short, 'the Pension Rules') with respect to charges enclosed with the letter. On 5-6-1993 he submitted his written statement denying the charges. The case of the petitioner is that 29-6-1993 and 30-6-1993 were fixed for inquiry. Though he was present on those dates no inquiry was held and nothing happened thereafter. On 5-12-1995 the Finance Commissioner passed an order reducing the petitioner's pension to 50%. He learnt about the order only when reduced pension was paid for the month of August 2000. The petitioner made representations on 9-9-2000 and 14-9-2000 and finally came to this Court in CWJC No. 11728/2000. In the writ petition he made a grievance that order had been passed without holding inquiry. Neither oral evidence was recorded nor any document was exhibited. No opportunity was given to produce his defence. No personal hearing was given. Without giving copies of the materials relied upon by the Department or copy of the inquiry report, if any, the impugned order was passed. The Bihar Public Service Commission was also not consulted. The learned Single Judge on 22-11-2000 dismissed the writ petition observing that the procedure laid down in Rule 43(b)(iii) of the Pension Rules had been followed.
3. It may be mentioned here that the respondents did not file any counter-affidavit before the learned Single Judge. In fact, the writ petition was disposed of without giving any opportunity to them to file affidavit. On 21-11-2000 the petition was filed, on 22-11-2000 it was dismissed. In this appeal, however, the respondents have filed counter-affidavit denying the petitioner's case of being denied the opportunity of hearing. They have stated that the proceeding under Rule 43(b) was initiated with the approval of the State Government and the petitioner was given full opportunity to present his case and produce evidence in his defence. He did not ask for any document at any stage other than those already made available, nor he disputed the fact that fraudulent withdrawals had taken place in the Purnea Treasury amounting to Rs. 31 lakh. The charges related to non-observance of the statutory rules and procedures by the treasury staff including the petitioner and the only defence of the petitioner was that he was not aware of the facts nor he was involved in the fraudulent withdrawals;
4. The solitary ground on which the validity, of the impugned order of the Finance Commissioner dated 5-12-1995 and the consequential order has been assailed is. that in terms of proviso (a)(iii) to Rule 43(b) of the Pension Rules the proceeding under that Rule is required to be conducted in accordance with the procedure applicable to proceedings in which the order of dismissal from service can be made, that is, the procedure laid down in Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 (in short 'Civil Services Rules'), which in the instant case was not done and therefore, the impugned orders are fit to be set aside.
5. The relevant provisions may be noticed at one place at this stage. Rule 43(b) of the Pension Rules, so far as relevant, runs as under:
(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-
(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 in which an order of dismissal from service may be passed;
(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.
There is Explanation appended to the Rule which it is not necessary to notice for the purpose of this case.
Before referring to Rule 55 of the Civil Services Rules, in order to appreciate the point it may be appropriate to notice different kinds of penalties which may be, awarded to a Government servant covered by the Civil Services Rules in a departmental proceeding under those rules. The penalties are set out in Rule 49, They are-
(i) Censure,
(ii) Withholding of increments of promotion, including stoppage at an efficiency bar.
(iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale.
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.
(iv-a) Compulsory retirement, (v) Suspension
(vi) Removal from the Civil Service or the Crown, which does not disqualify from future employment.
(vii) Dismissal from the Civil Service of the Crown, which ordinarily disqualifies from future employment.
The procedures for imposing the aforesaid penalties are contained in Rules 55 and 55-A of the Civil Service Rules. They are as follows:
55. Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a Service other than an order based on facts which have led to his conviction in a Criminal Court or by a Court-Martial unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witnesses. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.
xxx xxx xxx 55-A. Without prejudice to the provisions of Rule 55, no order imposing the penalty specified in Clause (i), (ii) or (iv) of Rule 49 (other than an order based on facts which have led to his conviction in a Criminal Court or by a Court-Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed:
Provided that the requirements of this Rule may, for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned."
6. From a combined reading of the above it is clear that the penalties specified in clauses (i), (ii) and (iv), namely, Censure, Withholding of increments or promotion, and Recovery from pay of any pecuniary loss cause to Government may be imposed by simply giving to the person concerned an opportunity of making representation in defence and after considering the representation, if any. But for imposing other penalties the more detailed procedure laid down in Rule 55 is required to be followed. In common parlance the penalties specified in clauses (i), (ii) and (iv) are known as 'minor penalties' while other penalties are knownas 'major penalties' apparently in view of their nature and legal effects.
7. Adverting to the point at issue, it has been submitted by the Counsel for the petitioner that the words "in accordance with the procedure applicable to proceedings in which an order of dismissal from service may be made" occurring in clause (iii) of proviso (a) leave no room for doubt that the proceeding under Rule 43 (b) as to be conducted in accordance with the procedure laid down under Rule 55 because it is that procedure which is required to be followed for imposing penalty of dismissal from service. Though directly not on the point reliance has been placed on D.V. Kapoor v. Union of India and Ors. , Ram VilasMishra v. State of Bihar and Ors. [1993 (1) PLJR 437, and Ugra Nath Jha v. The Administrator, Biscomaun and Anr. 1998 (1) PLJR 129. On behalf of the respondents it has been submitted that Article 311 (2) of the Constitution is not applicable to the proceedings under the Pension Rules as held by the Supreme Court in M. Narsimhachar v. The State of Mysore and, therefore, the proceeding under Rule 43 (b) can be conducted without following the procedure which is required to be followed in case of proposed dismissal from service i.e. without following the procedure laid down in Rule 55 of the Civil Services Rules. It is enough to give an opportunity of hearing before passing an adverse order in the matter of reduction of pension etc. In this regard reliance has been placed on State of Punjab v. K.R. Erry .
8. Rule 43 (b) empowers the State Government to withhold or withdraw pension-whether permanently or for specified period-or recover from the pension whole or part of any pecuniary loss caused to it if the petitioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service including service rendered on re-employment after retirement. The main clause (b) it would appear, is in two parts. The rule refers to withholding or withdrawing of pension and recovery of pecuniary loss caused to the Government. Either of the two can be done only if the Government servant concerned is found, in a departmental or judicial proceeding, to be guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence. There may be three situations. The departmental or judicial proceeding referred to in the Rule may have been held and concluded during tenure of service of the Government servant i.e. before his superannuation. Second, where such departmental or judicial proceeding was initiated during the employment or re-employment of the Government servant but not concluded until his superannuation. Third, there may be cases in which the proceeding--whether departmental or judicial-could not be initiated before the superannuation of the Government servant. So far as the first category of cases are concerned, where adverse finding as to grave misconduct or causing pecuniary loss to the Government has been recorded in either departmental or judicial proceeding, that may be a ground to withhold/withdraw pension or recover the amount of pecuniary loss from the pension of the Government servant after his superannuation. So far as the second category of cases are concerned, there is some divergence of opinion as to whether the proceeding survives the effect of superannuation, the preponderance of view is that a pending departmental proceeding can be continued under Rule 43 (b) for the purpose of withholding etc. the pension of the concerned Government servant. Indeed, a Full Bench of this Court has said so in the case of Shambhu Sharan v. State of Bihar 2000 (1) PUR 665. The provisos take care of the third category of cases where proceeding were not instituted before the superannuation of the Government servant or during his.re-employment. Proviso (a) refers to departmental proceeding while proviso (b) refers to judicial proceeding. In this case we are concerned with proviso (a).
9. It is true, in view of the unambiguous language of clause (iii) of proviso (a), that proceeding under Rule 43 (b) is required to be conducted in the same manner, as a proceeding under Rule 55 of the Civil Services Rules. The question is whether the procedure laid down in Rule 55 of the Civil Services Rules is required to be followed in all types of cases falling within the purview of Rule 43 (b). From a reading of the proviso it is clear that different clauses thereof are not applicable to proceedings which were instituted before retirement but could not be concluded. So far as the concluded proceedings (before retirement) are concerned/there is no question of the proviso or the clauses thereof being applicable as they were not pending on the date of retirement. The proviso refers to such departmental proceedings which were not instituted while the Government servant was on duty before retirement or during re-employment. It is, therefore, apparent that clauses (i), (ii) and (iii) cannot be made applicable to pending proceeding. The very opening words of proviso (a) "Such departmental proceedings, if not instituted while the Government servant was on duty..." are clear and unambiguous. It becomes mere apparent from reading of clauses. While clauses (i) protects the Government servant from being proceeded against save with the sanction of the State Government if departmental proceeding was not Instituted before his retirement. Clauses (ii) provides further protection that such proceeding must be in respect of an event not more than four years old before institution of the proceeding. Read in context, clause (iii) necessarily would apply to only such proceedings which were initiated after retirement. If clauses (i) and (ii) refer to proceedings instituted after retirement, necessarily, the application of clause (iii) must be limited to such proceedings. In other words, they would not apply to proceedings which were instituted before retirement, but remained pending and continued after retirement. The reason obviously is that if a departmental proceeding had already been initiated earlier, the same is to be conducted in accordance with the procedure applicable thereto.
10. In M. Narsimhacha v. State of Mysore (supra) the departmental inquiry was over when the appellant retired from service. The Government amongst other things ordered recovery of money by deducting fifty per cent of pension. Rejecting the contention that the order was violative of Article 311 (2) of the Constitution, the apex Court observed that the order resulted in reduction in pension and not reduction in rank, which was. permissible under the relevant regulations. In fact, referring to similar proviso which prohibited initiation of departmental proceeding after retirement if not instituted earlier, the Court observed that the proviso only comes into play when the departmental proceedings take place after the officer has given up the service. It does not apply to a case, as in the case in hand, where the proceeding took place while he was still in service.
The other decision relied upon by the Counsel for the State, State of Punjab v. K.R. Erry (supra) rather supports the appellant's case. The question for consideration was whether the Government can reduce the amount of pension and gratuity without giving a reasonable opportunity to the persons to show-cause against the proposed reduction. The plea of the appellant State is to the contrary. Rejecting the plea, the apex Court observed that where a body has to determine a matter involving rights judicially and the decision affects individual rights and interests, the principle of audi alteram partem would apply. It would be unfair for that body or authority not to allow a reasonable opportunity to be heard. The.decision in M. Narsimhachar's case (supra) was distinguished. None of these two decisions thus helps the respondents.
11. Adverting to the instant case, it is the admitted position that the proceeding was initiated much after the retirement of the petitioner. The proceeding, therefore, was clearly covered by proviso (a), to Rule 43 (b), of the Pension Rules. That being so, the petitioner was entitled to the safeguards contained in different clauses of the proviso. There is no dispute about the compliance of Clauses (i) and (ii). There is dispute about compliance of clause (iii) alone. In the absence of specific denial of the petitioner's case that inquiry within the meaning of Rule 55 of the Civil'Services Rules was not held, that is, opportunity to examine/cross-examine witnesses was not given, copies of the documents were not supplied and so on, it is not possible to accept the bald assertion of the respondents that opportunity was given. The respondents should have produced materials to substantiate the plea. It is evident that only hearing worth the name took place on 30-6-1993. While that could be compliance of the requirement of giving opportunity of hearing of the kind mentioned in Rule 55-A of the Civil Services Rules meant for imposition of minor penalties, that cannot be said to be adequate. The procedure applicable to proceedings in which order of dismissal from service can be passed, laid down in Rule 55 of the Civil Services Rules, having not been followed. I have no hesitation in holding that there has been violation of clause (iii) of provison (a) to Rule 43 (b) of the Pension Rules rendering the impugned order of the Finance Commissioner dated 5-12-1995 and the consequential orders illegal.
12. In the result, the order of the learned Single Judge dismissing the writ petition is set aside. The orders impugned in the writ petition are quashed but with liberty to the respondents to proceed afresh in the matter in accordance with law. This LPA thus stands allowed but without any order as to costs.
Indu Prabha Singh, J.
13. I agree.