Patna High Court
Gurusharan Prasad Singh vs The State Of Bihar & Ors on 19 December, 2008
Author: Jayanandan Singh
Bench: Jayanandan Singh
CIVIL WRIT JURISDICTION CASE No.431 of 2003
with
CIVIL WRIT JURISDICTION CASE No.4768 of 2003
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In the matter of applications under Article 226 of the
Constitution of India.
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Gurusharan Prasad Singh son of Chamru Mahto,
resident of village- Ramdih, P.S. Noorsarai,
District- Nalanda ------ Petitioner
Versus
1.The State of Bihar, through the Chief
Secretary,Govt. of Bihar,Patna
2.The Commissioner-cum-Secretary,
Department of Mines and Geology,
Govt. of Bihar, New Secretariat,
Vikas Bhawan, Patna
3.The Special Secretary, Department of Mines
and Geology, Govt. of Bihar, New Secretariat,
Vikas Bhawan, Patna
4.The Deputy Director(Mines), Bhagalpur Circle,
Bhagalpur
5.The Director, Provident Fund, Bihar, Patna
6.The Accountant General(Bihar), Patna,
Veer Kunwar Singh Marg, Patna ------ Respondents
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For the Petitioner : Mr.Narendra Prasad,Sr.Adv. with
M/s Akashdeep and Shyameshwar
Kr.Singh,Adv.
For the State : M/s V.M.K.Sinha,Spl.P.P.Mines and
S.P.Tripathi,Adv.
For the Accountant General : Mr.L.P.K.Rajgrihar,Addl.S.C.
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P R E S E N T
THE HON'BLE MR.JUSTICE JAYANANDAN SINGH
J.N.Singh,J: Having not received his retiral benefits, upon his
superannuation with effect from 31.1.2000, while working
as Incharge Deputy Director of Mines under the
respondents in the pay scale of District Mining Officer,
in spite of having submitted his pension papers and
representations, petitioner filed C.W.J.C.No.431 of 2003
for a direction for payment of his dues, only to be
surprised by the counter affidavit of the respondents,
enclosing the order contained in Memo no.603 dated
27.3.2002reducing 25% of his pension as punishment upon conclusion of a departmental proceeding, necessitating filing of C.W.J.C.No.4768 of 2003 challenging the memo by annexing the same as Annexure-12 to the writ application. -2- During the pendency of the second writ application, respondents also issued orders, as contained in memo no.2398 dated 26.11.2004 reverting back petitioner to the post of Assistant Mining Officer in purported exercise of powers under Rule 49(1) of Service Rules [Bihar Civil Services (Classification, Control & Appeal) Rules], and consequential fixation of pay scale and pension of the petitioner by the accountant general in proforma dated 11.1.2005 and 24.2.2005, which have been brought on record by the petitioner as Annexures-13, 14 and 14/1 through I.A. No.4308 of 2007 in C.W.J.C.No.4768 of 2003, with a prayer to amend the reliefs sought for in the writ application with liberty to challenge the same also.
2. As the orders, as contained in Annexures-13, 14 and 14/1 are sequel to punishment inflicted upon the petitioner in the departmental proceeding and in continuity of the main impugned order contained in Annexure-12, I.A.No.4308 of 2007 is allowed. Petitioner is granted liberty to challenge Annexure-13 as well as 14 and 14/1 and writ application is held to be modified to the extent prayed for by the petitioner in the I.A.
3. Facts, emerging from the records of C.W.J.C. No.4768 of 2003, show that upon his appointment as Assistant Mining Officer by order dated 16.10.1973 and having joined on 16.11.1973 at Begusarai under the respondents, petitioner soon came under cloud due to some complaint against him in the matter of having fixed lower -3- royalty for manufacturing of bricks by some brick kiln owners of the area during the period 1973-75 allegedly causing heavy loss to Government exchequer submitted in Cabinet (Vigilance) Department leading to a preliminary enquiry. After the said enquiry, petitioner was asked for explanation which he submitted on 25.4.1978. Thereafter, matter remained at rest for a number of years during which period petitioner was allowed to cross efficiency bar with effect from 16.11.1980 and was given first time bound promotion, after Vigilance clearance, with effect from 1.8.1983. By dint of his length of service and seniority, petitioner also became eligible for regular promotion on the post of District Mining Officer as on 1.2.1988. There was no reason for the petitioner not to get it as he did not receive any further communication in the matter for ten years after submission of his explanation in 1978, which gave rise to presumption that the matter stood closed resulting into his time bound promotion in 1983 after Vigilance clearance. However, it was really surprising to the petitioner to receive chargesheet along with memo dated 22.6.1988, annexed as Annexure-1 to the writ application, in connection with the same allegation of fixing of lower royalty during the period 1973-75 causing illegal pecuniary gain to brick manufacturers and causing financial loss to the Government Exchequer. The chargesheet referred to as many as nine documentary evidence including report of one Sub- -4- Inspector of Cabinet (Vigilance) Department as documentary evidence relied upon in framing of charge and name of the said Sub-Inspector as witness in support of the same.
4. Petitioner filed his reply vide Annexure-2 to the writ application stating therein, besides his detailed explanation to the charges, that except for the documentary evidence mentioned at serial no.9 in the chargesheet, he has not received any other documentary evidence referred to and relied upon in the chargesheet nor has he received the report and statement of said Sub- Inspector. In his reply, petitioner stated that on the basis of his memory he was replying to the charges but the documents mentioned in the chargesheet should be supplied to him to enable him to submit his reply effectively. In his reply petitioner enclosed several documents which were available to him and cited names of the witnesses whom he wanted to be examined in the departmental proceeding. However, without acceding to the request of the petitioner, enquiry proceeded and the enquiry officer on conclusion of the enquiry submitted his report through his letter dated 18.6.1990 to the higher authorities, as contained in Annexure-3 to the writ application. The letter of the enquiry officer, who was Deputy Director of Mines under the respondents, in very uncertain terms mentioned that inspite of his request, the relevant records were not made available by -5- the Department in the enquiry causing difficulty in coming to a just conclusion in the enquiry. However, on the basis of the materials available in the enquiry and as produced by the petitioner, he had proceeded with the enquiry and after concluding the same had submitted his report. In his report, which is enclosure to the said letter dated 18.6.1990 and part of Annexure-3 to the writ application, the enquiry officer dealt with the charges one by one and, considering the materials on record and the explanations of the petitioner, found all the seven charges against the petitioner as not proved and in respect of each and every charge he recommended for exonerating the petitioner.
5. After submission of the report by the enquiry officer exonerating the petitioner, matter again remained at rest for a number of years. Hence, petitioner was compelled to move this Court through C.W.J.C.No.10754 of 1995 with a prayer for direction to the respondents to promote the petitioner as District Mining Officer on regular basis. In the writ application he also prayed that the persons junior to the petitioner had been promoted as Deputy Director of Mines and therefore, his case should also be considered for the same. Respondents appeared in the writ matter and filed their counter affidavit taking the stand that some departmental proceeding was pending against petitioner. This Court noticed the pendency of the departmental proceeding for -6- over eight years from the date of issue of chargesheet to the petitioner and also noticed that in the meanwhile juniors to the petitioner have been promoted to the post of District Mining Officer as well as to the post of Deputy Director of Mines. Therefore, while disposing of the writ application by order dated 2.9.1996, as contained in Annexure-4 to the writ application, this Court directed the respondents to finalize departmental proceeding within one month from the date of passing of the order, failing which petitioner would be held to be entitled for posting/promotion as District Mining Officer and consequently as Incharge Deputy Director of Mines with effect from the date when his aforementioned juniors were promoted and the respondents were directed to issue order/notification granting due promotion to the petitioner within one week thereafter, if necessary, by reverting the junior most person.
6. Not surprising, the order was not complied with compelling the petitioner to file MJC No.2531 of 1996 for initiation of contempt proceeding against respondents. Being faced with the contempt, respondents issued orders, as contained in Annexure-5 and 5/1 to the writ application dated 15.10.1996 and 27.11.1996 respectively, promoting the petitioner provisionally on the post of District Mining Officer and posting him on the post of Incharge deputy Director, Mines at Bhagalpur in the pay scale of District Mining Officer. The order of promotion -7- of the petitioner as District Mining Officer was made subject to final outcome of the departmental proceeding. In the light of the order issued by the respondents, contempt application of the petitioner was disposed of by order dated 28.1.1999, as contained in Annexure-4/1 of the writ application giving liberty to the petitioner to stake his claim for his regular promotion to the post of District Mining Officer as well as to the higher post of Deputy Director, Mines. Petitioner has annexed as Annexure-6 a copy of an application of the respondents filed in the earlier writ application, namely, C.W.J.C.No.10754 of 1995, on 10.10.1996 for extension of time fixed by this Court by the said order dated 2.9.1996 passed in the writ matter by three months, with an averment that during this period after locating the records the respondents shall be able to conclude all the departmental proceedings and pass final order in this regard.
7. After disposal of MJC application, respondents issued a letter and a reminder dated 5.4.1999, annexed as Annexure-7 to the writ application, requesting petitioner to submit a copy of his reply to the show cause filed in the proceeding along with evidence. Petitioner submitted his reply to the same vide his letter dated 10.4.1999, as contained in Annexure-8 to the writ application, seriously objecting to continuity of the departmental proceeding inspite of the aforesaid orders of this Court -8- dated 2.9.1996. Along with his said objection, petitioner enclosed the aforesaid orders of this Court. However, it appears that the disciplinary authority decided to proceed with the matter and issued second show cause notice vide his letter dated 15.10.1999, as contained in Annexure-9 to the writ application, enclosing therewith his reasons for disagreement with the findings of the enquiry officer in respect of the charges. In the second show cause notice, the disciplinary authority also asked petitioner to show cause to his proposed punishment of reversion of the petitioner to the post of Assistant Mining Officer. On receipt of the said second show cause notice, petitioner filed his detailed reply vide Annexure-10 dated 12.11.1999. In his detailed reply, while dealing with each and every charges levelled against him and discussing in detail the justification for acceptance of findings of the enquiry officer, he also annexed ten documents for consideration of the disciplinary authority for coming to the conclusion on merits of the charges. Besides his submission on merits, petitioner also objected to issue of second show cause notice to him in the proceeding at the fag end of his service career and after nine years of submission of chargesheet by the enquiry officer and after almost 22 years of the alleged period of incident.
8. Matter remained pending with the disciplinary authority and the petitioner superannuated with effect -9- from 31.1.2000 from the service of the respondents as working in the capacity of Incharge Deputy Director, Mines in the substantive pay scale of District Mining Officer. Upon his retirement, petitioner submitted his pension papers to the respondents. However, since the pension etc. of the petitioner was not finalized, petitioner filed C.W.J.C.No.431 of 2003 before this Court for a direction to the respondents for the purpose. In the said writ application, a counter affidavit was filed by the respondents bringing on record an order passed by the respondents contained in Memo No.603 dated 27.3.2002 reducing pension of the petitioner to the extent of 25% in exercise of powers of the respondents, as contained in Rule 43 of the Pension Rules after due concurrence from the B.P.S.C. under the provisions of Rule 43 proviso (c) of the Pension Rules. On receipt of the said memo, for the first time, through the counter affidavit of the respondents filed in the said writ matter, petitioner filed C.W.J.C.No.4768 of 2003, bringing the same on record as Annexure-12 to the writ application and challenged the same. During the pendency of the said writ application, respondents came out with another order as contained in Memo No.2398 dated 26.11.2004 imposing punishment, on proved charges in terms of Rule 49(1) of the Service Rules, demoting the petitioner on the post of Assistant Mining Officer mentioning that as the petitioner had retired, necessary communication for
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correction of pension and for recovery of excess paid was being sent to the Accountant General. Consequently, Accountant General issued revised calculation of pay scale of the petitioner as well as of his revised pension in proforma issued on 11.1.2005 and 24.2.2005 respectively. Since these developments occurred in the case of the petitioner during the pendency of the said writ application, petitioner has filed aforesaid I.A.No.4308 of 2007 enclosing the documents as Annexures- 13, 14 and 14/1, with a prayer for modification of the relief portion of the main writ application giving liberty to the petitioner to challenge the same which stands allowed as aforesaid. In the I.A., petitioner has also cited one example of one J.K.Chaudhary, junior to the petitioner in whose case in identical circumstances, on account of charge being 17-18 years old, the proceeding was dropped against said Sri Chaudhary and he was exonerated from all the charges. The order exonerating said Sri Chaudhary and consequent order of his promotion on the post of District Mining Officer with consequential benefits of pay etc. has been brought on record by the petitioner as Annexure-15 and 15/1 to the I.A.
9. In the backdrop of the facts emerging from the records of the case, learned counsel for the petitioner made following submissions:
(i) He submitted that inordinate delay in
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initiating the proceeding against the petitioner and further inordinate and unexplained delay in concluding the same has prejudiced the petitioner as throughout his service career petitioner had to remain under agony and stress of departmental proceeding being pending against him and therefore, merely on account of delay caused in the disciplinary proceeding by keeping the same pending throughout the service career of the petitioner and till his retirement, without any explanation or justifiable reason for the same, the same is fit to be quashed. In support of this submission, learned counsel for the petitioner relied upon judgments of the Supreme Court passed in the cases of State of M.P. Vs. Bani Singh, reported in AIR 1990 S.C.1308; State of A.P. Vs. N.Radhakishan, reported in (1998)4 S.C.C.154 and P.V.Mahadevan Vs. MD T.N.Housing Board, reported in (2005)6 S.C.C.636.
(ii) He further submitted that at each stage of proceeding there has been flagrant violation of principles of natural justice inasmuch as the documents mentioned in the enquiry report were never supplied to the petitioner or were made accessible to him for perusal, as admitted by the enquiry officer himself in his forwarding letter along with enquiry report. He further submitted that detailed reply submitted by him in response to the second show cause was not at all considered by the disciplinary authority nor documents
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enclosed with the said reply was even noticed by him while imposing punishment upon petitioner of reducing his pension by 25% and later on by demoting him to the post of Assistant Mining Officer. He further submitted that after his superannuation and before passing of the order, as contained in Annexures-12 and 13, no notice was issued to the petitioner in that respect. In support of his contention with regard to necessity of supply of documents and affording effective opportunity to a delinquent in the enquiry, learned counsel for the petitioner has relied upon judgments of the Supreme Court in the case of Kashinath Dikshita Vs. Union of India, reported in AIR 1986 S.C.2118 and State of U.P. Vs. Shatrughan Lal, reported in AIR 1998 S.C.3038. He further submitted that in the enquiry no records were produced by the Department to substantiate the charges as admitted by the enquiry officer himself, and therefore, it was not open to the disciplinary authority to come to a conclusion of guilt against the petitioner while disagreeing with the findings of the enquiry officer without any materials available in the enquiry proceeding for the same. In support of this contention, learned counsel for the petitioner relied upon a judgment of the Supreme Court in the case of Kuldeep Singh Vs. The commissioner of Police, reported in AIR 1999 S.C.677 and a judgment of this Court in the case of Kumar Upendra Singh Parimar Vs. B.S.Co-operative Limited, reported in
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2000(3) PLJR 10.
(iii) Learned counsel for the petitioner next contended that the disciplinary authority erred in law while giving composite notice to the petitioner by way of second show cause, as contained in Annexure-9 to this writ application, which is not permissible in view of settled proposition of law by judicial pronouncements. In support of this contention, learned counsel for the petitioner relied upon two judgments of this Court in the case of Ranjan Kumar Vs. Nalanda Gramin Bank, reported in 2003(1) PLJR 722 and Saroj Kumari Vs. State, reported in 2004(1) PLJR 31(DB) and a celebrated judgment of Supreme Court in the case of MD, ECIL Vs. B.Karunakar, reported in AIR 1994 S.C.1074.
(iv) Learned counsel for the petitioner further submitted that as the relationship of master and servant gets severed with his employer upon superannuation of the employee, no order as contained in Annexure-13 demoting petitioner could be passed against him after his superannuation. The only punishment which the authorities could pass against petitioner after his superannuation was of reducing or withholding pension of the petitioner in whole or in part, for a period or permanently, after conclusion of the enquiry and upon finding of guilt of gross misconduct against petitioner. No other punishment as envisaged under the Service Rules of the State Government could be imposed upon petitioner by the
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respondents after his superannuation. In support of this contention, learned counsel for the petitioner relied upon a number of judgments of this Court in the case of Mohini Bala Verma Vs. State, reported in 1998(2) PLJR 135; Bajrang Deo Narain Sinha Vs. State, reported in 1999(3) PLJR 949(DB), Sadanand Ram Vs. State of Bihar, reported in 1999(1) PLJR 69 and Shambhu Saran Vs. State of Bihar, reported in 2000(1) PLJR 665(FB).
(v) Learned counsel for the petitioner further submitted that the entire proceeding and punishment imposed on the petitioner was full of malafide and bias on the part of official respondents and in violation of the rights of equity of the petitioner, inasmuch as time to time after number of years, respondents sought to rake up the matter against petitioner and kept the proceeding pending against him throughout his service career and imposed punishment upon him for an incident and allegation of a period almost 27 years back, whereas in similar and identical circumstances, respondents have dropped the proceeding against other officers of the Department only on the ground of delay in holding the proceeding, and on the ground of stale accusation and charges.
(vi) Learned counsel for the petitioner lastly contended that the impugned order (Annexure-12) was not in conformity with the requirements of Rule 43B of the Pension Rules, without any notice to the proposed
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punishment of reducing pension, and therefore, the same has to be held as ultra vires the powers of the respondents and in violation of principles of natural justice, and fit to be quashed.
10. Respondents have filed counter affidavit in the case as well as reply also to the I.A. of the petitioner. In the counter affidavit, respondents have given chronology of the facts and events in respect of the allegations, the charges and proceedings against petitioner. They have claimed that the proceeding has been in accordance with law and as the promotions of the petitioner by Annexures-5 and 5/1 were made subject to the departmental proceeding, they were legally justified in reverting back petitioner, even after his superannuation, upon finding of guilt by the disciplinary authority against him, as a consequence of conclusion of departmental proceeding. However, counter affidavit as well as reply of the respondents to the I.A. of the petitioner is conspicuously silent about the charges of violation of principles of natural justice leveled by the petitioner in his pleadings as mentioned hereinabove and there is conspicuous absence of any explanation whatsoever with regard to the delay caused in the proceeding against petitioner covering almost his entire service career and remaining pending till his superannuation, in spite of orders of this Court passed on 2.9.1996 in the earlier writ application of the
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petitioner. They have only justified their action claiming that the act of the petitioner as alleged in the chargesheet had caused heavy pecuniary loss to the Government Exchequer. They have produced certain documents with the counter affidavit connected with the proceedings as well as concurrence letter of the B.P.S.C. which is dated 11.2.2002. Many of the documents annexed by the respondents in the counter affidavit have already been annexed by the petitioner in the writ application and in his I.A. as noticed above.
11. Learned counsel appearing for the respondents authorities of the Mines Department more or less reiterated the stand of the respondents taken in the counter affidavit and reply to the I.A. of the petitioner as noticed above. However, in respect of categorical submissions made by learned counsel for the petitioner, he could not controvert any of them in so many words, except that he broadly submitted that the act of the petitioner had caused pecuniary loss to the Government Exchequer and therefore, punishment imposed against him was perfectly justified and legal. He also submitted that the delay caused in the proceeding was due to procedural requirements. He further submitted that as the petitioner superannuated from service prior to final conclusion of the departmental proceeding, punishment had to be imposed upon him in exercise of powers under rule 43B of the Pension Rules and, as the promotions granted to him were
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subject to final outcome of the proceeding in which petitioner was ultimately found guilty, the same had also to be cancelled, and therefore, he was rightly reverted back to the post of Assistant Mining Officer. However, he was unable to point out any fallacy or infirmity in the submissions of learned counsel for the petitioner, by drawing the attention of this Court to any particular provision of the Pension Rules or by referring to any judicial precedents against the submissions made by learned counsel for the petitioner on legal aspects of the matter.
12. In view of categorical submissions made by learned counsel for the petitioner, it would be appropriate for this Court to examine the same one by one and independently. Taking the challenge of the petitioner to Annexure-12, from the facts it is established that the petitioner was served with second show cause notice prior to his superannuation to which he filed a detailed reply also while he was in service. However, while the matter was pending with the disciplinary authority, petitioner superannuated and therefore it was not open to the respondents to pass orders for punishment under the Service Rules of the Government. Accordingly, treating the proceeding as continuing, the respondents passed orders vide Annexure-12 reducing pension of the petitioner by 25% in purported exercise of powers under Rule 43B of the Pension Rules. But there is nothing on
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record to show, nor there is any pleading, that any show cause notice was issued to the petitioner upon his superannuation for imposing punishment upon the petitioner in terms of Rule 43B of the Pension Rules. From the second show cause notice, it is apparent that the petitioner was required to show cause as to why he be not demoted to the post of Assistant Mining Officer in view of the charges having found true by the disciplinary authority. This show cause notice was in terms of Rule 55 of the Service Rules as till then petitioner was in service. But with his superannuation, as rightly contended by learned counsel for the petitioner, the relationship of master and servant between the petitioner and respondents got severed and the Service Rules became inapplicable. Hence, the show cause notice, as contained in Annexure-9, asking the petitioner to show cause to the proposed punishment of demotion as Assistant Mining Officer, died its natural death. After superannuation, petitioner could be further proceeded with only in terms of Rule 43B of the Pension Rules. As laid down by this Court in the case of Basishtha Pd. Sinha Vs. State of Bihar, reported in 1993(1) PLJR 605(DB), before proceeding further after superannuation in a pending proceeding in terms of Rule 43B of the Pension Rules, a fresh show cause was essential to be issued to the petitioner to the punishment proposed against him in terms of Rule 43B of Pension Rules. Apparently, no such
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notice has been issued in the present case. In the circumstances, on this score alone, the impugned order, as contained in Annexure-12, is not sustainable in law and fit to be quashed.
13. Another important aspect of the matter, as also canvassed by learned counsel for the petitioner, is that the impugned order (Annexure-12) does not deal with in any way the stand of the petitioner made in his show cause reply. It has been noticed above that the enquiry officer had exonerated the petitioner of all charges. The disciplinary authority intended to differ with the enquiry officer on consideration of charges and therefore he issued second show cause notice to the petitioner. In reply to the second show cause notice, petitioner filed detailed representation enclosing a number of documents. Since the disciplinary authority had decided to differ with the findings of the enquiry officer, his consideration of charges becomes a fresh consideration of the matter, and therefore, in effect he assumes the role of enquiry officer also and acts in dual capacity. In cases in which enquiry officer exonerates the delinquent, and the disciplinary authority proposes to differ with the report and considers the matter afresh at his own level, he decides to act in dual capacity of enquiry officer as well as disciplinary authority. In that situation, for coming to a final conclusion of guilt of the delinquent, on one or more counts, and before passing
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the final order, he must consider the reply and stand of the delinquent, placed before him by the delinquent in response to his second show cause and the oral or documentary evidence referred therein and it becomes obligatory on the part of the disciplinary authority to give such opportunity to the delinquent as may be required in the ends of justice before giving verdict of guilt and passing final order of punishment. This consideration of the case of the delinquent at the level of the disciplinary authority, in cases in which disciplinary authority intends to differ with the findings of the enquiry officer exonerating him, must reflect in the order of punishment to show the objective consideration of the matter by the disciplinary authority and for justifying the order of punishment. This requirement of self contained speaking order of punishment by the disciplinary authority in such a situation is not only in consonance with principles of natural justice but is also by way of fair play so as to enable the delinquent to make an effective appeal before the appellate authority on questions of facts and law challenging the consideration and findings of the disciplinary authority as well as to enable him to challenge the said order before this Court for consideration of the matter under powers of judicial review.
14. In the present case, there is complete absence of
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any such material in Annexure-12 to show that the detailed submissions of the petitioner in his reply to the second show cause and the materials referred to therein was in any way taken note of and considered by the disciplinary authority or that any document referred to or enclosed by the petitioner in his replies were considered by him. Thus, on this ground also Aannexure-12 is found to be in complete violation of principles of natural justice and fair play and not sustainable in law.
15. Now, coming to the submissions of learned counsel for the petitioner to his challenge to Annexure-13, it is apparent that the said order of demotion of the petitioner to the post of Assistant Mining Officer from the post of District Mining Officer has been passed by way of punishment in terms of Rule 49(1) of the Service Rules as a consequence of charges having been found proved. Apparently, the said order was also passed after superannuation of the petitioner when, as discussed above, relationship of master and servant between petitioner and the respondents had already stood severed. As held by this Court in the case of Sadanand Ram Vs. State of Bihar, reported in 1999(1) PLJR 69 as well as a Full Bench decision of this Court in the case of Shanbhu Saran Vs. State of Bihar, reported in 2000(1) PLJR 665(FB), it was not open to the respondents to pass orders imposing punishment on the petitioner in terms of Rule 49(1) of the Service Rules in exercise of powers
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available to them under the Service Rules. It is obvious that on superannuation of an incumbent, the applicability of Service Rules comes to an end and only action against the superannuated employee can be taken under the Pension Rules and specifically either under Rule 43B or Rule 139. Apparently, notification, as contained in Annexure-13 has been issued neither under Rule 43 nor Rule 139 of the Pension Rules. In this notification the petitioner has been sought to be demoted to the post of Assistant Mining Officer from the post of District Mining Officer by way of punishment as laid down under Rule 49(1) of the Service Rules. This exercise of power by the respondents after superannuation of the petitioner is without jurisdiction, beyond their powers and therefore, clearly also fit to be quashed.
16. Annexures-14 and 14/1 are consequential proforma issued by the Accountant General pursuant to the orders passed by the respondents, as contained in Annexures-12 and 13. Therefore, Annexures-14 and 14/1 have also to meet the same fate. Likewise, Annexure-11 is also consequential communication by the respondents to the Accountant General for issue of authorization in favour of the petitioner as a result of reduction of his pension by 25%. Once the order reducing pension of the petitioner goes, this Annexure-11 has only to receive the same fate.
17. Now having found Annexures-12 and 13 as fit to be quashed, question arises as to whether the matter
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requires to be remitted back to the respondents to pass fresh orders after compliance of principles of natural justice. So far as demotion of the petitioner in terms of Service Rules is concerned, apparently no fresh order can be passed after his superannuation even if his promotion was made subject to the final outcome of the disciplinary proceeding as upon superannuation, nature and scope of pending disciplinary proceeding changes. The service conditions of a superannuated employee as appearing from the records, of period prior to his superannuation cannot be changed retrospectively after his superannuation. Therefore, even if the promotion of the petitioner was shown to be made on provisional basis and was made subject to final outcome of the disciplinary proceeding, the effect of the same cannot be taken away after superannuation of the petitioner. Therefore, no fresh order can be passed by the respondents, so far as service conditions of the petitioner of period prior to his superannuation changing the same adversely and retrospectively on the basis of a proceeding concluded after his superannuation. Only action the respondents could take in the matter afresh after complying with the principles of natural justice was fresh order in terms of Rule 43B of Pension Rules but in the present case, this Court does not find it a fit case for giving that liberty to the respondents for reasons indicated hereinafter.
18. It has been noticed above that some allegations
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were made against petitioner soon after he was appointed (the date of such allegation and receipt of the same has not been disclosed in the pleadings of either of the parties). It has come on record that some preliminary enquiry was made on the basis of which draft charges were framed against petitioner by the Cabinet (Vigilance) Department and forwarded to the Administrative Department of the petitioner along with communication dated 16.5.1988 (Annexure-A). On the basis of said draft charges, memo of charge dated 22.6.1988 was served upon petitioner as is evident from Annexure-1. Petitioner submitted his reply vide Annexure-2 and, after conclusion of the enquiry, the enquiry officer submitted his report on 18.6.1990. After submission of the enquiry report, matter remained pending with the disciplinary authority for over nine years till a second show cause notice was issued to the petitioner on 15.10.1999 vide Annexure-9. Petitioner filed prompt and detailed reply to the same on 12.11.1999 vide annexure-10. There is nothing on record to show and nothing has been pleaded or argued as to why this inordinate delay was caused by the disciplinary authority in differing with the findings of the enquiry officer and giving second show cause notice to the petitioner. Petitioner was going to superannuate on 31.1.2000 was not unknown fact to the respondents. Still, no final orders were passed in the proceeding before his superannuation. Even after his superannuation,
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respondents took more than two years to pass impugned order reducing pension of the petitioner by 25%, as contained in Annexure-12. They took more than two years further time to pass impugned order, as contained in Annexure-13, demoting petitioner. There is absolutely no explanation in the counter affidavit with regard to this callous approach by the respondents in dealing with the matter of the petitioner and keeping the matter pending for several years and even till his superannuation and also years after that.
19. Learned counsel for the petitioner has rightly argued that all through this period, petitioner had to suffer mental agony and distress and fear of punishment as a result of a sword of punishment hanging over his head. In support of this contention, learned counsel for the petitioner has relied upon a number of judgments of the Hon'ble Supreme Court in which on the ground of delay and laches the disciplinary proceedings have been quashed. However, one judgment of the Hon'ble Supreme Court in the case of State of A.P. Vs. N.Radhakishan, reported in (1998)4 S.C.C.154 requires particular reference as the Hon'ble Supreme Court has very elaborately discussed and explained the balancing act which is required to be performed by the Court in such matters. It would be useful to quote the ratio laid down by the Hon'ble Supreme Court in paragraph 19 herein itself for ready reference :
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"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings, the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from his path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations."
20. Applying the principles laid down by the Hon'ble Supreme Court as above in the present case, the balance has to tilt in favour of the petitioner. Therefore, while
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holding the impugned order (Annexure-12) as illegal, in violation of principles of natural justice and fair play, this Court finds that it is not a fit case in which any liberty should be granted to the respondents, by remitting the matter back to them, to pass fresh orders after taking into account the stand of the petitioner in reply to the second show cause and in accordance with law. It is high time that the matter should be given a decent burial and this Court has no option than to do so.
21. In view of the above conclusions arrived at by this Court as above, other submissions of learned counsel for the petitioner does not require any independent consideration as on the grounds indicated above the orders, as contained in Annexures-12 and 13, and the entire proceedings are fit to be quashed, which are hereby quashed. The consequential communications, as contained in Annexure-11 as well as authorizations, as contained in Annexures-14 and 14/1, are also quashed.
22. C.W.J.C.No.431 of 2003 was filed by the petitioner for payment of his retiral dues as detailed in paragraph 1 of the petition including his pre-retiral dues of his salary as District Mining Officer from 1.2.1988 till 15.10.1996 and as Deputy Director, Mines from 15.10.1996 till 31.1.2000 as a consequence of his promotion to the post vide Annexures-5 and 5/1. Now that the orders of punishment of reducing pension of petitioner by 25% and order of his demotion to the post of Assistant Mining
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Officer stands quashed by this Court, petitioner becomes automatically entitled for consideration of revision of his all retiral benefits taking into account his promotion to the post by Annexures-5 and 5/1 as well as for the salary of the post as claimed by him. Hence, C.W.J.C.No.431 of 2003 is disposed of and respondents are directed to consider the same and pass appropriate orders in this regard positively within a period of three months from the date of receipt/production of a copy of this order. In case, within the stipulated period consequential order of release of pensionary benefits of petitioner is not issued, the unpaid dues shall carry an interest of 10% from the next day, yearly compoundable, till actual payment of the dues, which shall be realized from the salary of the person who may be found responsible for delay, upon an enquiry and after due opportunity in the matter.
23. In the result, C.W.J.C.No.4768 of 2003 is allowed and C.W.J.C.No.431 of 2003 is disposed of with the observations and directions as above.
(J. N. Singh,J.) Patna High Court The 19th December,2008 A.F.R./Pradeep.