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2010 Supreme(Pat) 1041
PATNA HIGH COURT
Sheema Ali Khan, J.
Baldeo Ram Son Of Late Shyam Rajbanshi, Resident Of Village-rehua, P.S.-pakari baranwa, District-nawada
Versus
State Of Bihar
CWJC No. 18634 of 2009
Decided On : April 29, 2010
A person cannot be held guilty of an offence/misconduct without being given an opportunity of hearing.
Headnote:
PENSION - CHALLENGE TO DEDUCTION - RULE 139, RULE 43(b) - The court discussed Rule 139 and Rule 43(b) of the Bihar Pension Rules, which empower the State authority to decide whether full pension should be allowed to a retired Government servant and the right of withholding or withdrawing a pension or any part of it, respectively. The court highlighted that a retired Government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the service record was not satisfactory, and that the State Government can exercise revisional power to reduce the pension within three years from the order sanctioning pension. The court emphasized that a person cannot be held guilty of an offence/misconduct without being given an opportunity of hearing and quashed the order withholding the petitioner's pension.
Fact of the Case:
The petitioner, a retired District Transport Officer, challenged the deduction of 10% of his pension under Rule 139 of the Bihar Pension Rules, based on allegations of misconduct in 1995, without any departmental proceedings to indicate his guilt.
Finding of the Court:
The court found that the reasons for finding the petitioner guilty of misconduct without giving him an opportunity of hearing were misplaced and quashed the order withholding the petitioner's pension.
Issues: Challenge to deduction of pension without departmental proceedings and opportunity of hearing.
Ratio Decidendi: A retired Government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the service record was not satisfactory. The State Government can exercise revisional power to reduce the pension within three years from the order sanctioning pension. A person cannot be held guilty of an offence/misconduct without being given an opportunity of hearing.
Final Decision: The court quashed the order withholding the petitioner's pension and directed payment of his entire pension without granting interest on non-payment.
1. Heard the parties.
2. The petitioner has challenged the order contained in Annexure-11 dated 16.1.2004, issued by the Secretary-cum- Commissioner, Department of Transport, Government of Bihar by which 10% of his pension has been deducted under Rule 139 of the Bihar Pension Rules.
3. The facts of the case are that the petitioner was posted as District Transport Officer at the relevant time i.e. in the year 1995. On 7.1.1995 non-gazetted officers went on indefinite strike and it has been pleaded on behalf of the petitioner that there was no token receipts available in the office, as such he asked the District Magistrate to supply him the proforma of tax receipts by a letter dated 7.1.1995. On 29.4.1995, a show cause was issued to the petitioner alleging that he had misappropriated Rs. 2,00,000/- . On 2.8.1995, second show cause was issued to the petitioner regarding the same facts. It is not clear from the averments made in the writ application whether the petitioner responded to the show cause issued to him on 29.7.1995 and 2.8.1995. In any event no order was passed by the authorities in question. The petitioner retired on 30.6.1998, On 14.7.2000, the petitioner was again issued a show cause notice as to why 10% of his pension be not deducted in view of the allegations which had been levelled against him. The petitioner came to this Court and filed CWJC No. 5340 of 2002 which was disposed of on 12.9.2002 giving a direction to the petitioner to file a show cause. The petitioner thereafter filed a show cause which is contained in Annexure-8 of the writ application. As usual after the show cause was filed no order was passed by the authorities and the petitioner had to file contempt application (M.J.C. No. 1774 of 2003 disposed of on 12.8.2009) and it was during the contempt application that the order dated 24.1.2004 was passed.
4. The petitioner has challenged the impugned order on the ground that the authorities concerned could not have passed the order impugned, deducting his pension by 10% as the matter relates to an offence allegedly committed in the year 1995 for which there was no departmental proceedings to indicate that the petitioner was guilty of the offences alleged.
5. Counsel for the petitioner relies on a decision in the case of the State of Bihar & Ors. vs. Md. Idris Ansari reported in 1995(2) PLJR (SC)51. In the case of Idris Ansari the incumbent was punished by an order dated 6.6.1990 for offences relating to the year 1986-87. The order was challenged in the High Court by filing a writ application which was allowed on 16.11.1992 on the ground that the principles of natural justice were violated during the departmental proceedings. The matter went up to the Supreme Court. The Supreme Court and the counsel appearing on behalf of the State relied on Rule 139 of the Rules stating therein that the authorities had the power to deduct either wholly or in part pension of a retired Government servant. Counsel for Md. Idris Ansari on the other hand contended that the proceeding was barred by Section 43(b) of the Rules. It would be relevant to quote both the Rules. Rule 139 reads as follows:
"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 people.
(c) The State Government reserve to themselves the power 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 opportunity of showing cause against the action proposed to be taken in regard to his pension, or any such power shal
