Patna High Court
Muneshwar Prasad Sinha vs State Of Bihar And Ors. on 4 August, 2004
Equivalent citations: 2004(2)BLJR1551
Author: Aftab Alam
Bench: Aftab Alam
ORDER Aftab Alam, J.
1. The petitioner is a retired employee of the Bihar State Electricity Board. He has filed this writ petition challenging office order No. 3383, dated 10.7.2001 (Annexure-4). By that order the Board held and found that the petitioner, during his service tenure, was responsible for causing loss amounting to Rs. 1,80,026.25 and took the decision, in purported exercise of power under Rule 139 of the Bihar Pension Rules, to recover the amount of loss suffered by the Board from the gratuity and pension payable to him. Following the Board's decision the Finance Controller by communication dated 21.8.2001 (Annexure-4/A) informed the Electrical Executive Engineer, Jehanabad that Rs. 53,985/-sanctioned as gratuity to the petitioner was fully adjusted against the amount recoverable from him and the balance of the Board's dues should be recovered by deducting half of his pension on a monthly basis.
2. The facts of the case are simple and brief. The petitioner retired from service as Assistant Store Keeper on 28.2.1995. When he was not paid his retiral dues even after more than a year of his retirement he came to this Court in CWJC No. 11668 of 1996. That writ petition was disposed of by order dated 17,11.1997 in terms of the general directions given by this Court in Rukmani Devi v. State of Bihar and Ors., 1996 (2) PLJR 348. In the light of the Court's order he filed a representation before the authorities in the board but that did not seem to have any effect. He then filed a contempt petition being MJC No. 556 of 2000.
3. At this stage, the petitioner was given a notice vide office order No. 476, dated 23.1.2001 (Annexure-2) to show cause why a sum of Rs. 1,80,026.25 may not be recovered from his retiral dues under Rule 139 of the Bihar Pension Rules'. In notice it was stated that in course of physical verification of stock held during the periods 19.8.1975 to 24.10.1975, 1.12.1983 to, 7.12.1983, 9.2.1987 to 10.3.1987, 9.6.1988 to 8.7.1988 and 16.7.1993 to. 17.8.1993 certain store discrepancies were found which the petitioner failed to regularise despite repeated directions during his service tenure, as a result of which store materials valued atleast at Rs. 1,62,632/- remained unadjusted. The value of the unadjusted store materials was recoverable from him under Rule 2.32 and 7-144 of the Financial and Accounts Code. Apart from the loss resulting from the store discrepancies there were other dues against the petitioner. These were (i) Rs. 8,707.00 as misc. advances, (ii) Rs. 150/- as travelling advance and (iii) Rs. 8,537.25 as energy charges. Thus, according to the notice, a total sum of Rs. 1,80,026.25 was recoverable from his gratuity, pension and other retiral dues and in that regard he was required to show cause within 15 days from the receipt of the notice. The petitioner gave his reply on 15.2.2001 in which he admitted his liability only in regard to the energy charges. He strongly denied any liability arising from the store discrepancies and stated that he had sent a number of letters (giving their numbers and dates) to the concerned authorities in connection with the regularisation of store discrepancies. He further stated in his reply that on retirement he had, handed over the charge of the store to his successor on 17.10.1995 and he was also given a 'No Dues Certificate' on 4.9.1997 by the Assistant Electrical Engineer (Stores), copy at Annexure-3. He also questioned the action of the Board in initiating a proceeding against him on an unfounded charges after more than five years of his retirement from service. He also denied any other dues of misc. advances or travelling advance.
4. Later on, the Board passed the impugned order dated 10.7.2001 holding the petitioner responsible for causing it a loss of Rs. 1,80,026.25 paise and directing for the recovery of the amount from his gratuity and pension.
5. Mr. P.K. Shahi strongly assailed the impugned order of deduction from the gratuity and pension receivable by the petitioner. Learned counsel submitted that in the absence of any, departmental or judicial proceeding held against the petitioner there was no legal basis for holding that he was responsible for the alleged losses to the Board and the losses and the dues were, therefore, liable to be recovered from his retiral dues. He, however, submitted that he need not go into that question because the impugned order of the Board was manifestly illegal for another reason. He submitted that from perusal of the show cause notice dated 23.1.2001 and the impugned order dated 10.7.2001 it was apparent that the Board aimed to recover from the petitioner's retiral dues certain specified losses and dues for which it held the petitioner responsible. The show cause notice and the impugned order, therefore, clearly fell under Rule 43(b) and a mere citation of Rule 1'39 in the order will not make it an order under the latter rule.
6. Learned counsel submitted that the show cause was issued to the petitioner after more than six years of his retirement and the alleged losses referred to in the notice related to periods that were several decades in the past. Rule 139 of the Bihar Pension Rules was, therefore, simply cited to a void and circumvent the bar of limitation provided under Rule 43(b) of the Pension Rules.
7. The submission of Mr. Shahi appears to be well founded. The provisions of Rule 43(b) and Rule 139 are completely different in their nature, scope and ambit. Rule 43(b) vests in the Government (or the Board in this case) the power to withhold or withdraw pension for a misconduct or to recover any pecuniary loss caused to the Government resulting from any misconduct or negligence from the pension provided the pensioner was found guilty of a grave misconduct in a departmental or judicial proceeding. The provision of Rule 43(b) thus deals with specific and separate acts of grave misconduct which in case proved against the pensioner in a departmental or judicial proceeding may form the basis for withholding or withdrawing his pension or recovery from his pension of any pecuniary loss caused to the Government or the Board.
8. Unlike Rule 43(b) that deals with specific and individual act(s) of grave misconduct, Rule 139 empowers the authority sanctioning the pension or the State Government to make an over- all assessment of the service of the concerned employee and to suitably reduce the amount of pension if his service was not thoroughly satisfactory. There can be, therefore, no doubt that the two rules have different scope and they operate differently; one cannot be substituted for the other. In order to recover a loss caused to the Board or the State Government as a result of some specific and individual act(s) of misconduct by an employee the power under Rule 139 cannot be invoked for the simple reason that there is a separate rule specially for that purpose, of course, with the bar of limitation provided therein. In this case, both the show cause notice and the impugned order make it quite clear that the Board intended to proceed against the petitioner in regard to specific events during certain periods and to recover from him the amounts of specific losses and advances. Apart from the issue whether or not the responsibility for causing those losses and the dues in question were established against the petitioner the relevant provision in the rules for the purpose was clearly Rule 43(b) and not Rule 139. The exercise of power under Rule 139 was therefore clearly misconceived and there appears to be some substance in Mr. Shahi's criticism that rule was invoked in order to avoid the bar of limitation under Rule 143(b).
9. That is not all, this Court finds that there is a trend these days in the Government, the Board and in other similar bodies and organisations to cite Rule 139 of the Bihar Pension Rules without much application of mind. In this regard it needs to be made clear that Rule 139 does not only give certain powers to the authorities sanctioning pension but it also lays down a certain procedure. It is highly doubtful whether the power alone can be exercised without the slightest regard to the procedure prescribed by the rule. It may be noted that under Rule 139(b) the authority sanctioning pension has the right to suitably reduce the amount of pension in case the service of the concerned employee had not been thoroughly satisfactory. Sub-rule (c) of that rule vests the State Government (or the Board in this case) with the revisional power. Sub-rule (c) envisages that an order sanctioning pension should first be passed by the sanctioning authority and then that order would be subject to revision by the State Government within three years from the date of the order. It is, therefore, open to question whether the State Government or the Board may directly exercise the revisional power without there being any order by the sanctioning authority that needs to be revised.
10. In this case both the Show cause notice and the impugned order was passed by the Board itself and that clearly does not conform to the procedure laid down under Rule 139.
11. For the reasons discussed above, I am clearly of the view that the impugned order does not fall within the purview of Rule 139 of the Pension Rules.
12. Mr. R.K. Dutta, Addl. SCCG for the Board then tried to defend the impugned order on the basis of the provisions of paragraph 2.32 and 7-144 of the Board's Financial and Accounts Code.
13. I think that neither of the two provisions empower the Board to make any deduction or recovery from the pension/gratuity receivable by a retired employee. The provision of para 2.32 deals with fixing of responsibility for losses and the provision in para 7-144 provides that in case of stock found deficient, the value of the deficiency may be debited to the personal account of the Store Keeper pending recovery from the person responsible for the deficiency. Neither of the two provisions even remotely suggest any deduction or recovery from the retiral dues.
14. Here it needs to be realised that the provisions contained in paras 2.32 and 7-144 may be statutory or executive, instructions in their nature. In any event those provisions would be deemed to be incorporated in the service contract of the employee and would thus constitute part of their service condition but once the contract of service itself comes to an end on superannuation of an employee those provisions would cease to operate in so far as he is concerned. Any deduction/ recovery from retiral dues needs special provisions and it is for that purpose that the Bihar Pension Rules is framed (which was adopted by the board) that contains provisions for deduction/recovery from the pension (Rule 43(b) or grant of reduced pension on the basis of an over all assessment of the service of the employee (Rule 139).
15. Mr. Dutta then sought to defend the impugned order on the basis of the provisions contained in paragraph 10(b) of Resolution No. 3014, dated 31.7.1980 of Finance Department, Government of Bihar. It was first pointed out to Mr. Dutta that the provisions in the Government resolution were only in the nature of executive instructions whereas the Bihar pension Rules were framed under Section 241 of the Government of India, Act, 1935 and therefore any provision of the resolution could not over ride the statutory provisions of Rule 43(b) or 139 of the Pension Rules.
16. In reply he made a somewhat tortuous submission. He submitted that may be the position in a case of the State Government. But the Board had separately adopted both the Bihar Pension Rules (vide resolution No. 5031 dated 6.9.1966 and office order No. 6196/EB dated 2.12.1987). The adoptions were made in exercise of power under Section 79(c) of the Electricity Supply Act. He contended that pursuant to their adoption both the Pension Rules and the later resolution became rules under Section 79(c) on the Electricity Supply Act and thus acquired an equal status. According to him, therefore, the later provisions of the resolution would supplement and/or over-ride the earlier provisions of the rules.
17. It is not required to make any pronouncement on the submission made by Mr. Dutta regarding the provisions of the later resolution over-riding the provisions of the rules in case of the Board because to my mind the provision contained in paragraph 10(b) of the Government resolution, dated 2.12.1987 has no application to the facts of the present case.
18. It may be noted that from the title of the resolution itself it is evident that the provisions were made for simplification of grant of pension and the D.C.R. Gratuity. The provision of paragraph 10(b), as translated from Hindi by Mr. Dutta is as follows :--
"Paragraph No. 10. Adjustment of Government dues,--
(a) Dues relating to Government accommodation.
(b) All other type of dues except accommodation-Two years prior to date of superannuating when the process of preparing the pension papers is initiated from that very time the evaluation of other Government dues should also be started because immediately after one year four months the process of preparing the actual pension papers is begun and little time remains for evaluating all Government dues. Eight months prior to the date of retirement as soon as that sage comes, then for accounting for the dues the records of a limited period only should be verified, that is, certainly not for the period exceeding two years prior to the date of retirement. In this way it will be convenient for the Head of Office or the office concerned with issuing Pension Payment Order (Accountant General) for finding out before the time fixed for issuing Pension/Gratuity Payment Order or Provisional Pension/Gratuity Payment Order the previous dues specially advance sanction on long terms such as House Construction or Conveyance Advance, amount of excess payment of salary and allowance and other dues. In the Pension papers the entire amount to be recovered from the Death-cum-Retirement Gratuity or Provisional Pension/Pension/Gratuity should be cleared mentioned. If the Pension papers have been sent to the Accountant General for issuing Payment Order and later on Government dues are discovered then its information should be immediately sent without fail to him (Accountant General). In those matters where major dues are not to be. recovered, but for recovery of undetermined dues or in case of non issuance of final payment certificate the withheld amount of 10% of Gratuity or Rs. 1000/- shall be automatically paid after six months of retirement. In the Provisional Gratuity Payment Order (or in the Final Gratuity Payment Order) the amount withheld by the Head of Office or Accountant General should be clearly mentioned with this condition that if no information is received within six months for further withholding the withheld amount then the disbursing officer should make payment to the concerned employee. At the same time this should be clearly mentioned in the Pensioner's copy also."
19. From a bare reading of the provision it is evident that the object is to expedite the grant of pension as much as possible and the provision speaks of :--
"the previous dues specially advance sanction on long terms such as House Construction or Conveyance Advance, amount of excess payment of salary and allowance and other dues."
20. It does not need much argument to realise that the expression 'other dues' has to be read ajusdem generis and along with the dues of kind enumerated just before those words. It is thus evident that Clause 10(b) of the resolution deals with normal dues of the kind an employee may accumulate in course of service. Clause 10(b) does not deal with losses/dues resulting from defalcation, misappropriation or any other misconduct committed by an employee his service tenure. Losses/dues of those kind specifically fall under Rule 43(b) of the Pension Rules.
21. It may further be noted that in an earlier case from the Board in CWJC No. 12432 of 1999, Ram Sewak Singh v. The Bihar State Electricity Board and Ors., this court had an opportunity to consider the submission of Mr. Dutta based on Clause 10(b) of the resolution, dated 31.7.1980. In judgment dated 3.11.2003 in that case it was observed in that regard as follows :--
"I see hardly any need to go to the provisions of the State Government's resolution in question. The resolution as its title indicates was aimed at simplification of procedure for grant of pension, gratuity etc. and expeditious payment thereof and it appears debatable to me whether under the provisions of that resolution the Government would acquire any rights viz-a-viz the retired employee in addition to those already contained in the Bihar Pension Rules. In any event once the loss caused to the Government (or the Board in this case) is established, following a procedure known to law, and once the amount of the loss is quantified in accordance with the rules, there is ample power for the recovery of the amount of loss from the retiral dues of the concerned employee under Rules 43 and 139 of the Pension Rules."
22. For the reasons discussed above, I find and hold that the impugned order of the Board, dated 10.7.2001, as contained in Annexure-4, and the consequent order dated 21.8.2001, as contained in Annexure-4/A, are bad and illegal. Those are accordingly set aside. The only permissible deduction from the petitioner's due is the amount of energy charges, admitted by him. The Board is, therefore, directed to make payment of the full amount of gratuity and pension to the petitioner deducting from it only the amount of energy charges.
23. In the result, this writ petitioners allowed by with no order as to costs.