Patna High Court
Balmiki Prasad Sinha vs The State Of Bihar & Ors on 16 December, 2013
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13773 of 2005
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Balmiki Prasad Sinha (since deceased), son of late Jageshwar Prasad, through his
heir and legal representative, the wife Chandra Prabha Verma, resident of Village
Noorzamapur, P.S.-Ballia, P.O.-Lakhminia, District-Begusarai. At present resident
of "Shirodeep", Road No.-18, Rajiv Nagar, Patna-24.
.... .... Petitioner
Versus
1. The State of Bihar.
2. The Registrar General, Patna High Court, Patna.
3. The Commissioner-cum-Secretary, Department of Personnel & Administrative
Reforms, Govt. of Bihar, Patna.
4. The Deputy Secretary, Department of Personnel & Administrative Reforms,
Govt. of Bihar, Patna.
5. The Accountant General, Bihar, Birchand Patel Path, Patna.
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Ratnesh Kumar Singh, Advocate
Mr. Deepak Kumar, Advocate
For the Respondent-State: Mr. P.N. Shahi, A.A.G.-10
Mr. Mritunjay Kumar, A.C. to A.A.G.-10
For the Respondent-H.C.: Mr. Piyush Lall, Advocate
For the Respondent-A.G.: Mr. J.P. Karn, Sr. Advocate
Mr. L.P.K. Rajgrihar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE) Date: 16-12-2013 Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 2/9 This Petition under Article 226 of the Constitution has been filed by a retired Judicial Officer against the action of the High Court in reducing the pension of the writ petitioner by 75%.
Pending the Writ Petition, the petitioner has passed away. Petition is prosecuted by his heir and legal representative, the wife Chandra Prabha Devi.
In 1975, the petitioner joined Bihar Judicial Service. In course of service, he received time bound promotion; was posted as Sub-Divisional Judicial Magistrate; was promoted as Sub Judge; was posted as Chief Judicial Magistrate, and was also promoted to Superior Judicial Service in March 1999. On attaining the age of 58 years, his service was extended and was permitted to continue in service till he attained the age of 60 years. On attaining the age of 60 years, the petitioner retired from service on 31 st January 2003. Since his retirement, under the recommendation made by the High Court, under order dated 20th June 2005, his pension to the extent of 75% has been withheld. Therefore, the Writ Petition.
Learned advocate Mr. Ratnesh Kumar Singh has appeared for the petitioner. Mr. Ratnesh Kumar Singh has submitted that admittedly the action of withholding of pension has been taken by the High Court in exercise of power conferred by Rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as „the Pension Rules‟). The said Rule 43(b) empowers an appointing authority to withhold a pension or part of a pension of a Government servant if he has been found guilty of grave misconduct or convicted pursuant to a criminal prosecution.
Mr. Ratnesh Kumar Singh has submitted that neither disciplinary proceeding was ever initiated against the petitioner, Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 3/9 nor he was prosecuted in a criminal Court. There was no occasion for the High Court to take any action against the petitioner for reduction in pension under Rule 43(b) of the Pension Rules.
Mr. Ratnesh Kumar Singh has submitted that the entire service of the petitioner was blotless. The petitioner had received all his annual increments; monetary benefits; promotion regularly from time to time indicating that the service of the petitioner was satisfactory. In the submission of Mr. Ratnesh Kumar Singh, the order withholding part of the pension is wholly unjustified; is made without following due process; and without the authority of law; is violative of Articles 14, 16 and 21 of the Constitution.
In support of his submissions, Mr. Ratnesh Kumar Singh has relied upon the judgments of the Supreme Court in the matters of Commissioner of Police, Bombay Vs. Gordhandas Bhanji { AIR 1952 SC 16}; of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others {AIR 1978 SC 851}; of Bharat Singh & Ors. Vs. State of Haryana and others {(1988) 4 SCC 534}; of Rajasthan Pradesh V. S. Sardarshahar & Anr. Vs. Union of India {2010 AIR SCW 3660}; and of this Court in the matters of The State of Bihar & Ors. Vs. Serajuddin Ahmad { 2000 (3) PLJR 150}; of Urmila Sharma @ Urmila Singh Vs. The State of Bihar & Ors. { 2010 (3) PLJR 845}.
Learned advocate Mr. Piyus Lall has appeared for the respondent- High Court. He has contested the Writ Petition. Mr. Piyus Lall has not denied the factum of the petitioner‟s receiving monetary benefits and the promotions from time to time or the extension of his service till he attained the age of 60 years. Mr. Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 4/9 Lall has, however, relied upon certain orders made by the petitioner in weeks/ months before his retirement. He has submitted that the orders in question were made by the petitioner ex-facie on extraneous consideration. On account of such orders, the action of the petitioner came to be scrutinized by the High Court. After issuing notice to the petitioner to show cause and after receiving his reply, the High Court had made the recommendation for withholding of part of the pension.
Mr. Piyush Lall concedes that the impugned order has not been made stricto senso under Rule 43(b) of the Bihar Pension Rules referred to in the show cause notice. He has, however, relied upon Rule 139 of the Pension Rules. He has submitted that Rule 139 of the Pension Rules empowers the appointing authority to withhold the pension in whole or any part of it if the service of the Government servant is not found satisfactory. He has submitted that the perusal of the orders under scrutiny made by the petitioner will satisfy this Court that the service of the petitioner was not wholly satisfactory. The High Court, after due consideration of the materials before it, exercised its power under Rule 139 of the Pension Rules and recommended to withhold a part of the admissible pension of the petitioner.
In support of his submissions, Mr. Lall has relied upon the judgments of the Supreme Court in the matters of State of Bihar and others Vs. Mohd. Idris Ansari, {AIR 1995 SC 1853}; of Collector of Central Excise, Calcutta Vs. Pradyumna Steel Ltd. { (2003) 9 SCC 234}; and of this Court in the matter of Anirudh Prasad Choudhary Vs. The High Court of Judicature at Patna & Ors. {1996 (1) PLJR 633}.
Mr. Ratnesh Kumar Singh has tried to distinguish the Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 5/9 above referred judgment in the matter of Anirudh Prasad Choudhary {1996 (1) PLJR 633}.
We have perused the materials brought on record. It is apparent that a few months before his retirement, the petitioner started making orders obviously on extraneous grounds. In one such case, one Suman Singh, accused of offence under Section 302 of the Indian Penal Code alleged to have killed one Mantu Sharma, was released on bail on the ground that the deceased Mantu Sharma was a notorious criminal and that the brother of the said Mantu Sharma and the other family members, who were present at the hearing of the bail application, they had admitted that the deceased was a notorious criminal and that they had supported the accused. The said order was found to have been made on extraneous consideration as recorded by this Court (Coram: Mr. Justice P. N. Yadav) under order dated 21st April 2004 made in Cr. Misc. No.27040 of 2003. A similar remark was recorded by yet another Bench (Coram: Mr. Justice Shiva Kirti Singh, as he then was) under order dated 17th March 2004 made in Cr. Misc. No.12207 of 2003.
It appears that since his retirement a complaint was received in respect of bail orders made by the petitioner during the months before his retirement. His orders made during the period of three months prior to his retirement were taken up for scrutiny. On finding substance in the allegations made against the petitioner, the petitioner was given a notice to show cause and was also allowed to peruse the records. After considering the materials examined and the reply submitted by the petitioner, the Standing Committee of the High Court in its meetings held on 8 th, 10th and 11th February 2005, resolved to withhold the pension of the Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 6/9 petitioner to the extent of 75%.
We must note that although action was alleged to have been taken under Rule 43(b) of the Pension Rules, it was a mistake. Rule 43(b) can be invoked if the pensioner is found guilty in departmental or judicial proceeding. In the present case, no departmental or judicial proceeding was ever initiated against the petitioner. Rule 43(b), therefore, could not have been invoked against him. Evidently, the High Court exercised its power under Rule 139 of the Pension Rules. Rule 139 of the Pension Rules provides that the pension is not a matter of course and that a reduction may be made in pension if the service of the pensioner is not found thoroughly satisfactory. In other words, a pensioner would be entitled to the full pension only if his service is found to be thoroughly satisfactorily. The said Rule 139 reads as under:-
"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 Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 7/9 opportunity of showing cause against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed."
In the backdrop of the objectionable orders made by the petitioner referred to in the counter affidavit made on behalf of the High Court, there is not an iota of doubt that the petitioner did abuse the judicial power vested in him and made orders on extraneous consideration. True, there is no evidence of extraneous consideration, but extraneous consideration or oblique motive have to be inferred from the conduct of the writ petitioner as reflected in the orders made by him.
It is well settled that if the order making authority has the jurisdiction to make the order, the reference to a wrong provision will not vitiate the order. In the present case, it cannot be said that the High Court had no authority to recommend reduction in pension in exercise of power conferred by Rule 139 of the Pension Rules. Further, the order was made after giving due opportunity to the petitioner to explain his conduct, after giving him opportunity to peruse the records and after considering his reply.
In the matter of Gordhandas Bhanji {AIR 1952 SC 16}, the Hon‟ble Supreme Court in respect of the public order held, "We are clear that the public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 8/9 authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Similar view has been expressed by the Supreme Court in the matter of Mohinder Singh Gill & Anr. (supra). The judgments in the matters of Bharat Singh (supra) and Rajasthan Pradesh V. S. Sardarshahar & Anr. (supra) have no relevance whatsoever with the subject matter in this Writ Petition.
In the matter of Serajuddin Ahmad { 2000 (3)PLJR 150}, a disciplinary proceeding initiated against the Government servant after his retirement was set aside as it did not comply with the conditions mentioned under Rule 43(b) of the Pension Rules. Same was the matter at issue in the matter of Urmila Sharma (supra). We may note that in the present case, we are not dealing with a case of disciplinary proceeding initiated after the retirement of the writ petitioner. The above referred judgments, therefore, have no relevance to the facts of the present case.
In the matter of Pradyaumna Steel Ltd. {(2003) 9 SCC 234}, the Hon‟ble Supreme Court observed, "it is settled that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power."
In the matter of Anirudh Prasad Choudhary (supra), a Special Bench of five Judges of this Court was constituted to consider the decision of the Full Court of the High Court in respect of extension of the service of the Judicial Officer beyond the age of 58 years till the officer attained the age of 60 years. The Patna High Court CWJC No.13773 of 2005 dt.16-12-2013 9/9 Hon‟ble Court (per majority) held, "the Full Court was not obliged to give reasons for its decision. In absence of reasons alone, it cannot be said that the decision of the Full Court was bad in law."
On perusal of the records, the orders under scrutiny made by the petitioner, the observation made by the High Court on its judicial orders, we have no hesitation in holding that the service of the petitioner was far from being satisfactory. The High Court was justified in exercising power under Rule 139 of the Pension Rule. We see no merit in challenge to the order of withholding of pension. Petition is dismissed.
(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Sunil/-