Mere negligence or carelessness on the part of an employee cannot be elevated to the level of grave misconduct for the purpose of imposing a penalty of deduction from pension under Rule 43 of the Bihar Pension Rules, 1950.

G.C.Bharuka, J.

1. In this writ application the petitioner is aggrieved by the order of the State Government as contained in Memo No. 5950, dated 31-12-1988 (Annexure-15) and its communication to the Accountant General, Bihar as contained in Memo No. 337, dated 18-1-1990 (Annexure-17) by which it has been directed that the petitioner will be paid pension after deduction of 5% and the total amount of deduction payable to the petitioner will be calculated on the basis of the salary which he was entitled to as an Excise Inspector since he was not promoted to any higher post. In C.W.J.C. 336 of 1983 disposed on 12th October, 1990 which was filed by this petitioner, it was directed that his seniority has to be determined from 22-2-1968 which is the date on which the petitioner was promoted to the post of inspector of Excise and not from 22-2-1970 when he was confirmed on that post. It was also directed in that case that the petitioner has to be granted all consequential benefits pertaining to his service.

2. So far as the present writ application is concerned, the relevant facts are that pursuant to a charge sheet (Annexure-6) dated 31-7-1984 a departmental proceeding was initiated against the petitioner after due notice to him. The Conducting Officer submitted his report dated 5-9-1986 (Annexure-10) in which it was held that though no pecuniar loss has been caused to the Government because of commission or omission on the part of the petitioner but because of negligence and carelessness of the petitioner the concerned licensee had availed opportunity of some manipulations. In the meantime, on 31-12-1985, the petitioner retired from the service. Therefore, the Government by communication dated 19th October, 1987 (Annexure-12) initimated to the petitioner that, keeping in view the departmental enquiry and the nature of allegations, it has been decided to deduct 15% of pension payable to the petitioner since his activities were found to be unsatisfactory during the tenure of his service. The petitioner was also directed to file his explanation in this regard under Rule 139 of Bihar Pension Rules (hereinafter referred to as the Rules). Accordingly, the petitioner submitted his explanation. Thereafter, the petitioner was communicated with the order dated 31st December, 1988 (Annexure-15) containing therein that pursuant to power under Rule 139 of the Rules, the Government has decided to deduct 5% from the pension payable to the petitioner. As a consequence of this order, the State Government also communicated to the Accountant General, Bihar by Annexure 17 that the petitioner should be paid pension by deducting 5% and the pension payable to the petitioner will be calculated on the basis of salary payable to the petitioner as Inspector of Excise since he was not given any regular promotion to the post of Superintendent.

3. Mr. Madhup, learned Counsel appearing for the petitioner, has submitted that the order as contained in Annexure 15 is ultra vires the powers of the State Government, because, as is evident from Annexure 12 referred to above, the decision for making deductions from the pension has been taken pursuant to a departmental enquiry which was initiated against the petitioner while he was in service. Therefore, the punishment with regard to deduction of pension can be appropriately taken only under Rub 43 of the Rules. His further submission is that under Rule 43, the punishment of making certain deduction from the pension can be awarded only if (i) any pecuniary loss has been caused to the Government because of the conduct of the petitioner or (ii) if there is any finding in any departmental or judicial proceeding holding the pensioner guilty of gross misconduct by referring to the finding of the Conducting Officer as contained in Annexure 10. It has been submitted that in the present case, none of these two condition precedents have been fulfilled and therefore, the Government was not competent to order for deduction