Jharkhand High Court
Jai Govind Singh vs Bihar State Electricity Board And 5 Ors. on 4 March, 2004
Equivalent citations: 2004(1)BLJR657, [2004(2)JCR34(JHR)], 2004 AIR - JHAR. H. C. R. 1262, (2004) 2 JLJR 103, 2004 BLJR 1 657, (2004) 2 JCR 34 (JHA)
Author: Tapen Sen
Bench: Tapen Sen
ORDER Tapen Sen, J.
1. In this writ application, the petitioner prays for quashing the resolution dated 4.4.2000 (Annexure-7) being resolution No. 785, a copy whereof was forwarded to the petitioner vide Memo No. 786 whereby and where under the petitioner was imposed with the punishment of "stoppage of 5% of pension". The petitioner has also prayed that after quashing of, the aforesaid resolution, a direction be made upon the respondents (respondent No. 3 in particular) to release 5% of the withheld pension.
2. The short facts which are necessary to be taken note of are that after having been appointed as an Assistant Electrical Engineer, he was promoted to the post of an Executive Engineer in April 1976. Thereafter, in January, 1992, the petitioner was promoted to the post of a Superintendent Engineer.
3. On 28.2.1997, the petitioner superannuated from service. It appears from the pleadings that on 5.5.1997, the respondent-Board withheld 10% of pension plus Gratuity and Leave Encashment on the ground of pendency of departmental proceedings. Being aggrieved, the petitioner filed a writ petition before this Court which was registered as CWJC No. 1969 of 1997(R). The writ petition was allowed on 27.10.1997 and the aforementioned order dated 5.9.1997 was quashed and the Board was directed to take a final decision in the departmental proceeding pending against him as expeditiously as possible, but preferably within 2 (two) months from the date of receipt of a copy of the order. Upon perusal of the order of this Court passed on 27.10.1997, quashing the order dated 5.5.1997, it appears that in 1994, a charge-sheet was served on the petitioner for some irregularities said to have been committed by him in the year 1984-85. One day prior to his retirement, i.e. on 27.2.1997, the inquiry officer submitted a report holding that the charges levelled against the petitioner were unjustified. These facts were not controverted by the Board in their counter-affidavit as is evident from the order dated 27.10.1997 passed in CWJC No. 1969 of 1997(R). It further appears that the only, ground the respondents took in that writ application was that because of delay on the part of the petitioner in filing reply to the charge-sheet, the proceedings were not concluded before his superannuation and that the proceedings were still pending. The aforementioned plea of the Board was not accepted by this Court in that writ application and on the contrary, the Court expressed surprise that if some irregularities had been committed in the year 1984, the Board served charge-sheet after a lapse of 10 (ten) years and even thereafter the inquiry officer held that the charges were unjustified. In that view of the matter, the earlier writ Court did not find any justification on the part of the respondents in withholding Gratuity and Leave Encashment. However, taking into consideration the plea that the proceeding was pending, withholding of 10% pension was observed as would be meeting the ends of justice and to that extent the writ application was allowed insofar as it related to withholding of Gratuity and Leave Encashment only and with the observations mentioned above. In other words, the matter relating to withholding of 10% of pension was to await the final outcome of the departmental proceedings.
4. It was thereafter, that on ,31.3.1999, the Board served a show cause notice/resolution upon the petitioner asking him to explain as to why 50% of the amount paid to one Shib Shankar Roy, Khalasht during the period of 1.10.1992 to 30.6.1996 be not recovered at the rate of Rs. 1000/- per month from the pension of the petitioner.
5. From Annexure 2, the charges against the petitioner are as follows :
(a) While he was posted as Electrical Executive Engineer, the Electric Supply Division, Samastipur, he signed the Second Service Book of one Shri Shib Shankar Roy, a Skilled Khalashi whose date of birth had been entered as 5.12.1944 without verifying his actual date of birth which was 21.3.1932;
(b) As a result of such signing the Second Service Book, Shib Shankar Roy, who should have retired with effect from 30.9.1992 continued in the Board's Service, but was finally made to retire by the Executive Engineer by his letter dated 20.7.1996 with effect from 30.9.1992;
(c) Consequently, the Board had to pay a sum of Rs. 2,32,454.21 for such irregular and unwarranted continuance to Shib Shankar Roy for the period 1.10.1992 to 30.6.1996.
6. A photocopy of the aforementioned resolution dated 31.3.1999 has been brought on record vide Annexure 2 to the writ application.
7. It appears that on 12.4.1999, the petitioner submitted his reply to the aforementioned show cause notice/resolution denying the allegations levelled against him. While replying, the petitioner also enclosed therein a copy of the inquiry report submitted by the inquiry officer holding that the charges against the petitioner were unjustified. Thereafter the petitioner received a further resolution dated 13.8.1999 wherein, without reference to the reply filed by the petitioner, the respondents Informed the petitioner that it was proposed to withhold 5% of his pension and consequently he was directed to show cause as to why the same should not be withheld under the provisions of Rule 139 of the Bihar Pension Rules. This was replied to by the petitioner by his letter dated 3.9.1999 as contained in Annexure 6.
8. It is thereafter that the impugned resolution was passed on 4.4.2000 withholding/stopping 5% of the pension of the petitioner vide Annexure 7 under the provisions of Rule 139 of the Bihar Pension Rules. This order has been brought on record vide Annexure 7.
9. A counter affidavit in the instant case has been filed by the respondent Nos. 5 and 6. The same facts which appear in the resolution dated 31.3.1999 (Annexure 2) and in the resolution dated 13.8.1999 (Annexure 5) have been repeated in the counter-affidavit. In other words, the charges have been repeated in the counter-affidavit stating ultimately, that the Board on account of the irregular and unwarranted continuance of Shib Shankar Roy, had to pay a sum of Rs. 2,32,454.21 to him. It has further been stated that after receiving the resolution, the petitioner filed his reply and after going through the same and considering all aspects, the Board fixed the responsibility and resolved to award the impugned punishment. It has further been stated that in the Original Service Book, the date of birth of Shib Shankar Roy was 21.03.1932 and he was 30 (thirty) years as to his date of appointment, i.e. 21.9.1962 and therefore, while opening the Duplicate Service Book, the petitioner had no right to make any changes. No counter affidavit has been filed on behalf of the Bihar State Electricity Board but Mr. Mihir Kumar Jha, appearing for that Board made elaborate and extensive arguments which will be dealt with later.
10. Upon persual of the facts pleaded, it is evident that in the year 1994, a charge-sheet was submitted in relation to an occurrence that took place more than 10 (ten) years ago, i.e. of the year 1981. It is also apparent from Annexure 4 which is the inquiry report that an inquiry was set up and in that inquiry the net conclusion of the inquiry officer was that the charges against the Officers of the Board were unfortunate. Let it be recorded that the inquiry report was submitted on 26.9.1995 (Annexure 4). Thereafter, on 28.2.1997, the petitioner superannuated. Thus, after submission of the inquiry report on 26.9.1995, the most relevant date is the date of superannuation, i.e. 28.2.1997 and it is relevant to note that after submission of the inquiry report, there is no order of the Disciplinary Authority differing with the same. On the contrary, the petitioner superannuated and upon his superannuation, his post retiral rights became a part of his life.
11. It is subsequent to the date of superannuation that one order was passed on 5.5.1997 withholding 5% of his Pension together with Gratuity and Leave Encashment but this Order was quashed by the High Court on 27.10.1997 vide Annexure 1 with the observation that the Board shall take a decision in the alleged departmental proceedings as expeditiously as possible and preferably within 2 (two) months. It is subsequent to all these developments and almost 2 (two) years thereafter that a resolution dated 13.8.1999 was issued vide Annexure 5 under Rule 139 of the Bihar Pension Rules asking the petitioner to show as to why 5% of his pension be not withheld. In this context, the interpretation of Rule 139 therefore, becomes necessary, Rule 139 of the Bihar Pension Rules reads as follows :
"139. (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, (underlining by Court).
12. From a bare perusal of Rule 139 of the Bihar Pension Rules, it is apparent that 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 that a person's service career was not satisfactory, it is therefore necessary that such a conclusion is based on a finding by a competent authority. In Service Jurisprudence, the words "conclusive findings" mean that there must be a departmental proceedings in which the person concerned is given an opportunity of hearing and the proceedings end with such a finding. In the instant case, the finding while the petitioner was in service, ended with the submission of the Inquiry report dated 26.9.1995 (Annexure 4) which clearly recorded a finding to the effect that in the matter relating to Shib Shankar Roy, the then Executive Engineer, namely. Suresh Chandra Pandey had taken a decision with regard to the age of the said Shib Shankar Roy on the basis of a certificate given by the Civil Assistant Surgeon and therefore, the action of confirming the same by a successor Superintendent Engineer was a natural and legal conduct. Consequently, bringing out a complaint of irregularity against any one in such a matter was unfortunate.
13. Apart from the aforesaid, in his reply dated 3.9.1999 (Annexure 6), the petitioner had stated that the duplicate Service Book upon which he had put his signature was prepared by his Subordinate Officer. i.e., by the Assistant Electrical Engineer and signed by him on 12.6.1991. He had further stated that even before he had joined Samastipur, Shib Shankar Roy had made an application on 4.11.1977 before the then Assistant Electrical Engineer, Samastipur for correction of his date of birth and as the period related to prior to 2.2.1981, he had no concern with the same. Petitioner further stated in his reply as follows :
"That the official records of the Division proves it that the detailed enquiry was made with respect to the aforesaid representation submitted by Sri Rai and since as per the calculation Mr. Rai's age was coming to 16 years as on his date of joining i.e. on 21.9.1962, hence suspicion was raised and Mr. Rai was also show caused on the matter.
The aforesaid matter also relates to the period prior to 2.2.1981.
That the show cause of Mr. Rai was received in the office of the Asstt. Electrical Engineer, Samastipur, which was forwarded by his letter No. 188 dated 22.1.1979, to the office of the Electrical Executive Engineer and was received in the said office on 25.1.1979. The concerned Executive Engineer took a decision and directed Sri Rai to get himself examined by the Civil Surgeon for the purpose of getting his age assessed and then to submit the certificate before him. The said decision of the Divisional Office was also communicated to the Asstt. Electrical Engineer through the letter No. 1578 dated 27.6.1979.
That upon the directions of the then Electrical Executive Engineer, Samastipur, Sri Rai got himself examined by the Asstt. Civil Surgeon and submitted the certificate before the Asstt. Electrical Engineer, Samastipur, Sub-Division and in turn, the Asstt. Electrical Engineer sent the same to the office of the Electrical Executive Engineer, Samastipur. Division, vide his letter No. 1717 dated 21.5.1979. The said certificate was again returned by the Division Office, vide letter No. 3156 dated 23.11.1979 saying it was not prepared on the prescribed form No. 29. It was directed that the certificate should be in the prescribed form and then it can be submitted before the Division. It is submitted that thereafter vide letter No. 184 dated 17.1.1980 the age certificate of Mr. Rai was submitted in the Division Office on the prescribed form which was received on 18.1.1980.
The aforesaid matter also relates to the period prior to 2.2.1981, hence I had nothing to do with it.
That on the basis of the aforesaid decisions taken by the Electrical Executive Engineer during the period between 1977 and 1980 and because of the fact that the original service book of Sri Rai was missing, the Electrical Executive Engineer concerned purported to and directed the Asstt. Electrical Engineer to prepare the duplicate service book for which the valid and legal procedure for ascertaining the age of Sri Rai had already been completed. It would appear from the official records itself that every decision, i.e. for considering the representation submitted by Mr. Rai, for sending Mr. Rai for the purpose of ascertaining his age before the Civil Surgeon etc. was all taken much before I joined the offfce of the Electrical Executive Engineer, Supply Division, Samastipur, and hence implicating me in the matter unnecessarily."
14. Apart from the aforesaid submissions that the petitioner made, he also stated in the same reply as follows :--
"That I joined the office of the Electrical Executive Engineer, Supply Division, Samastipur, on 2.2.1981 and on the basis of the resolution/decision taken the previous Electrical Executive Engineer (my predecessor), I was duty bound to follow his decisions and hence there was necessity of opening the duplicate service book of Sri Rai, vide letter No. 1194 dated 1.5.1981, the Asstt. Electrical Engineer, Electric Supply Sub-Division, Samastipur, was directed to open the duplicate service book of Mr. Rat. In pursuance of the said direction of the Division given, vide order dated 1.5.1981, the Asstt. Electrical Engineer concerned opened the duplicate service book of Mr. Rai after verifying all the details and dates and following the date of birth of Sri Rai as per the certificate granted by the Civil Surgeon (which was submitted in pursuance of the decision of my predecessor) it was submitted before me vide letter No. 1693 dated 15.6.1981 of the Asstt. Electrical Engineer.
That in fact, the duplicate service book on which for signing by me, I am being harassed at this stage was opened as per the decision of my predecessor on the basis of the certificate of age issued by the Civil Surgeon I merely signed on the duplicate service book after verifying the records/proceeding of my predecessor, the Electrical Executive Engineer, Samastipur, that too getting it confirmed after seeing the certificate issued by the Civil Surgeon."
15. Thus, from what is stated above, it is apparent that the petitioner pleaded that there was no mala fide intention on his part and upon an inquiry held as per the directives of the Area Board, an elaborate report was submitted observing that all decisions were taken with respect to a matter which had already been taken by the predecessor of the petitioner.
16. Thus, the matter ended with the submission of the inquiry report and it could have been allowed to continue if the disciplinary authority had differed with the findings given in the report, but there is no such difference of opinion on record.
17. However, the fact remains that after the petitioner moved this Court against the order dated 5.5.1997, the said order was quashed only insofar as it related to withholding of Gratuity and Leave Encashment, but insofar as the departmental proceedings were concerned, the respondents were directed to take a final decision in the matter within a period of 2 (two) months. Nothing has been brought on record to show that the departmental proceedings came to an end with a finding to the effect that the petitioner's services were not satisfactory or that he was guilty of grave misconduct which stood confirmed upon proof. Without there being such a proof and/or finding, the respondents straightaway issued the resolution dated 31.3.1999 wherein they stated that it had been proposed to recover 50% of the total amount. In this notice, Rule 139 has not been mentioned, but that provision finds addition in the second show cause notice dated 13.8.1999 (Annexure 5) when the Board, instead of the proposal to recover 50%, decided and proposed to recover 5% of the Pension and accordingly, notice under Section 139 of the Bihar Pension Rules was given. Since this Court has already held in the foregoing paragraphs that a finding based on evidences and conclusion of departmental proceedings is a sine qua non for invoking Rule 139 of the Bihar Pension Rules, and since, this ingredient in the instant case is missing, the Board had no jurisdiction to proceed against the petitioner under the said Rule, i.e. Rule 139 of the Bihar Pension Rules as has been sought to be done, both by reason of the second show cause notice as also by the impugned resolution dated 4.4.2000.
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.
19. 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 Court's 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.
20. Upon perusal of the impugned order, it is evident that after retirement, the petitioner has been residing in Ranchi, i.e., within the territorial jurisdiction of this Court. If the petitioner retired on 28.2.1997 with all rights to receive Pension as has been held above, and if all his post retiral accumulations and payments are now being paid from the Treasury of Jharkhand as was argued by Mr. Rajiv Ranjan, learned counsel for the petitioner, then such a right could not have been curtailed by an illegal/arbitrary decision against the provisions of Rule 43(b) or Rule 139 of the Bihar Pension Rules. To that extent therefore, the argument of Mr. Mihir Kumar Jha that this Court has no territorial jurisdiction is rejected.
21. It would, therefore, be relevant to take into consideration the argument of Mr. Mihir Kumar Jha. Mr. Mihir Kumar Jha argued that this Court has no jurisdiction to entertain this writ application Inasmuch as the cause of action was at Samastipur which was always within' the territory of Bihar and that the resolution as contained in Annexure 2 dated 31.3.1999 was issued by the Bihar State Electricity Board to which the petitioner replied on 12.4.1999, He further states that the second resolution dated 13.8.1999 was also issued by the Bihar State Electricity Board to which the petitioner replied on 3.9.1999. The further argument of Mr. Mihir Kumar Jha is that even the final impugned order which is dated 4,4.2000 has not only been issued by the Bihar State Electricity Board, but it was issued prior to creation of the State of Jharkhand. He, thus submits that the entire cause of action not only arose within the territory of Bihar, but also prior to creation of the State of Jharkhand. He further submits that mere service of notice within the territory of Jharkhand does not confer Jurisdiction upon the Jharkhand High Court. In support of the aforementioned contention, Mr. Mihir Kumar relies upon the judgment delivered by the Supreme Court of India in the case of State of Rajas-than and Ors. v. Swaika Properties and Anr., reported in AIR 1985 SC 1289. He also relies upon the judgment of the Supreme Court in the case of Union of India and Ors. v. Adani Exports Ltd. and Anr., reported in (2002) 1 SCC 567, for the same proposition that no part of cause of action having arisen within the territory of State of Jharkhand this Court should not interfere in this writ application.
22. The aforementioned judgment of the Supreme Court of India will not apply in the facts of this case. From the documents brought on record including the replies filed by the petitioner which are all post retirement, go to show that he has been residing in Ranchi. Mr. Rajiv Ranjan has also submitted in his arguments that after retirement, he has been receiving pension from the Treasury of Jharkhand. Therefore, If the petitioner retired even prior to the creation of the Jharkhand, i.e., on 28.2.1997 with all rights to receive full Pension, that right was subsequently transferred within the territory of Jharkhand from where he started receiving his dues. Subsequently, such a right could not have been upset by the Board at Patna on the basis of an order which is de hors the provisions of Rules 43(b) and 139 of the Bihar Pension Rules. Therefore, it was the Bihar State Electricity Board, which acted without jurisdiction in this matter and therefore, the argument of Mr. Mihir Kumar Jha to the effect that the entire cause of action having been at Samastipur, this Court has no jurisdiction, cannot be accepted because a right accrued has been upset and which has civil consequences and that right will now be permanently affected by other consequences at Ranchi and within the territorial jurisdiction of this Court.
23. The objection therefore raised by Mr. Mihir Kumar Jha, is rejected and as a consequence of what has been stated above, this Court is of the opinion that this writ application must succeed and it is accordingly allowed to do so. As a consequence hereof, the impugned orders are hereby set aside and quashed and the respondents are restrained from withholding any part of the pension of the petitioner.