2005 Supreme(SC) 434

2005(3) Supreme 23
Supreme Court of India
(From Jharkhand High Court)
Ashok Bhan & Dr. AR. Lakshmanan, JJ.
Ram Dayal Rai —Appellant
versus
Jharkhand State Electricity Board and Ors. —Respondents
Civil Appeal No. 1599 of 2005
(Arising out of S.L.P. (C) No. 15469 of 2003)
Decided on 9-3-2005
Counsel for the Parties :
For the Appellant : A.N. Deo and Ms. S. Janani, Advocates.
For the Respondents : S.B. Upadhyay, Pawan Upadhyay, Shiv Mangal Sharma and Gopal Prasad, Advocates.

Headnote:Bihar Pension Rules, 1950—Rule 43(b)—Appellant, an employee of respondent Board, retired on 28-2-1998 but did not vacate Board’s Quarter despite Court’s order to vacate the quarter by 1-11-1999 and finally vacated it on 6-1-2000—Order directing permanent deduction of 5% from total amount of pension payable to appellant for the misconduct of appellant not vacating the quarter—Punishment of 5% cut in pensionary benefits in given circumstances was disproportionate—Occupation of quarter from 1-11-1999 to 6-1-2000 could be treated as unauthorised occupation and as against appellant paying Rs. 25/- per month for occupation of quarter, he directed to pay Rs. 500/- per month for period of illegal occupation.

       Held : As already noticed, the respondents have issued the penal order withholding permanently 5% of the pension of the appellant. It is not in dispute that the BSEB adopted Bihar Pension Rules, 1950 mutatis mutandis for its employees. Under Chapter III of Bihar Pension Rules, 1950, “general provision relating to grant of pension” has been laid down. While under Rule 43(b), the competent authority reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, future good conduct is also implied as a condition for every grant of pension under Rule 43(a) of the Bihar Pension Rules, 1950. Admittedly, the appellant, after retirement, did not choose to vacate the Board’s quarter. He initially moved before the High Court by filing a writ petition and the High Court vide order dated 19.2.1999 directed the appellant to vacate the Board’s quarter within one month from the receipt of retiral benefits. Even thereafter, the appellant having not vacated the quarter, the High Court vide order dated 31.8.1999, directed the appellant to vacate the Board’s quarter by 30.9.1999 as per earlier order. Admittedly, the appellant, even thereafter, did not choose to vacate the quarter and filed a petition for extension of period. Taking humanitarian view, the High Court extended the period up to 1.11.1999 and directed the appellant to vacate the Board’s quarter by 1.11.1999. Even thereafter, the appellant being not satisfied moved L.P.A. No. 460 of 1999. The Division Bench of the High Court rejected the prayer for further extension of time. Thereafter, the appellant vacated the Board’s quarter only on 6.1.2000. Therefore, it is thus crystal clear that the Court’s order was violated and such action of the appellant being a misconduct, the impugned penal order was issued on 15.6.2001 after giving opportunity to the appellant on the basis of the evidence. In the instant case, the appellant vacated the quarter in question within the period specified by the High Court and he informed the respondents about the vacation of the quarter and even after this information the appellant was penalized. The punishment of 5% cut in pensionary benefits, in our opinion, is disproportionate for the misconduct alleged against the appellant. The appellant vacated the Board’s quarter on 6.1.2000 whereas he ought to have vacated the same on 1.11.1999 as per order dated 4.10.1999 of the High Court. The High Court, on various occasions, ordered extension of period on humanitarian grounds. Therefore, extension of time granted by the High Court and the occupation of the quarter during that period as per the orders of the Court cannot be treated as or construed as an unauthorized occupation. The continuance thereof in the quarter in question can, therefore, be treated only as litigious possession. But the fact remains that he has not vacated the quarter on 1.11.1999 but in fact vacated only on 6.1.2000. We are, therefore, of the opinion that the impugned order does call for interference by this Court and modification of the same in order to meet the ends of justice. The occupation of the quarter after 1.11.1999 is illegal. When a question was put, the learned counsel appearing for the appellant submitted that he was paying the monthly rent of Rs. 25/-. Justice would be amply met if we direct the appellant to pay a sum of Rs. 500/- per month for the entire period of illegal occupation (from 1.11.1999 to 6.1.2000). The balance of convenience and the prima facie case is also in favour of the appellant. If the pensioner’s benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since after the retirement, the pensionary ­benefit is the only amount available to eke out livelihood for the retired employees of the Government.­ (Paras 16 to 18)