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PATNA HIGH COURT
NAGENDRA RAI, J.
Braj Kishore Prasad Shrivastava - Petitioner
Vs.
The Bihar State Electricity Board though its Chairman, Vidyut Bhawan, Bailey Road, Patna & ors. – Respondents
C.W.J.C. No. 4499 of 1996
Decided on : 9.7.1998
PENSION - WITHHOLDING - DEPARTMENTAL PROCEEDING - CONTINUATION AFTER RETIREMENT - PENSION RULES - ADOPTION BY BOARD - SERVICE REGULATIONS - CONFLICT - SAVING AND INTERPRETATION PROVISION - DEPARTMENTAL PROCEEDING - INITIATION WHILE IN SERVICE - CONTINUATION AFTER RETIREMENT - PENSION WITHHOLDING - CONDITIONS - JUDICIAL PRECEDENTS - RELEVANCE - DEPARTMENTAL PROCEEDING - INITIATION AFTER RETIREMENT - CONDITIONS - PENSION WITHHOLDING - POWER OF STATE/DISCIPLINARY AUTHORITY - MISCONDUCT AND NEGLIGENCE - PROOF - PENSION WITHHOLDING - NATURAL JUSTICE - OPPORTUNITY OF HEARING - COMMUNICATION OF REASONS FOR DIFFERING WITH ENQUIRY REPORT - REQUIREMENT - DEPARTMENTAL PROCEEDING - ENQUIRY OFFICER'S REPORT IN FAVOUR OF DELINQUENT - DISAGREEMENT BY DISCIPLINARY AUTHORITY - REASONS - COMMUNICATION TO DELINQUENT - REQUIREMENT - NATURAL JUSTICE - VIOLATION - JUDICIAL PRECEDENTS.
Fact of the Case:
Petitioner, an ex-employee of Bihar State Electricity Board (Board), challenged the order reducing his post-retirement benefits by 50% as punishment for causing pecuniary loss to the Board. A departmental proceeding was initiated against him while in service for irregular purchases. He superannuated during the pendency of the proceeding. The enquiry officer exonerated him, but the disciplinary authority disagreed and passed the impugned order. Petitioner contended that the Board had not adopted the Bihar Pension Rules, the departmental proceeding ended on superannuation, and the disciplinary authority should have communicated reasons for differing with the enquiry report.
Finding of the Court:
1. The Board adopted the Bihar Pension Rules by resolution in 1966 and reiterated it in 1987. The Board's Service Regulations did not provide for withholding pension for misconduct or negligence. The saving and interpretation provision of the Regulations prevailed over any conflict with the Pension Rules. 2. A departmental proceeding initiated against an employee while in service can be continued after retirement for the purpose of withholding pension under Rule 43(b) of the Pension Rules. 3. After retirement, a fresh departmental proceeding can be initiated for withholding pension, subject to the conditions in the proviso to Rule 43(b). 4. The State/disciplinary authority has the power to withhold pension on proof of misconduct and negligence of a government servant during service. 5. In a departmental proceeding, the delinquent employee is entitled to be informed of the charges, given an opportunity to explain, and defend himself. A copy of the enquiry report should be supplied to him. 6. The disciplinary authority can disagree with the enquiry officer's findings and impose punishment. Reasons for disagreement must be recorded in the final order. 7. Communication of reasons for differing with the enquiry report and an opportunity to represent against those reasons are not required before passing the final order.
Issues: 1. Whether the Board had adopted the Bihar Pension Rules. 2. Whether the departmental proceeding initiated against the petitioner while in service came to an end after his superannuation. 3. Whether the impugned order was vitiated for non-communication of reasons for differing with the enquiry report. 4. Whether the orders passed in similar cases of other employees were relevant.
Ratio Decidendi: 1. The Board's resolution adopting the Bihar Pension Rules in 1966 and reiterating it in 1987 was sufficient to make the Pension Rules applicable to the Board's employees. The saving and interpretation provision of the Board's Service Regulations ensured that any conflict between the Regulations and the Pension Rules would be resolved in favor of the Pension Rules. 2. Rule 43(b) of the Bihar Pension Rules expressly provides for the continuation of a departmental proceeding initiated against an employee before retirement for the purpose of withholding pension. 3. The disciplinary authority is not required to communicate reasons for differing with the enquiry report and give an opportunity to the delinquent employee to represent against those reasons before passing the final order. The requirement is that the reasons for disagreement with the enquiry officer's findings must be recorded in the final order.
Final Decision: The writ petition was dismissed. The Board's order withholding 50% of the petitioner's pension was upheld.
Nagendra Rai, J. - This application under Article 226 of the Constitution of India has been filed by the petitioner, an ex-employee of the Bihar State Electricity Board (hereinafter referred to as the Board) for quashing the order dated 20.3.96 passed by the Board reducing the post retirement benefits of the petitioner to the extent of 50% of the amount payable by way of punishment towards partially compensating the loss caused to it. A copy of the said order has been annexed as Annexure-1 to the writ application.
2. The facts leading to the present writ application are that the petitioner was posted as Deputy Director of Accounts in Koshi Area Electricity Board at the relevant time. There was charge of irregular payment against the purchase of materials at Saharsa in the year, 1981-82 against him. The Board lodged a criminal case being Saharsa P. S. Case no. 4 of 1985 under sections 120 (B), 201, 204, 409, 468, 477A of the Indian Penal Code and 5(2) of the Prevention of Corruption Act against the Chief Engineer of the Koshi Area Electricity Board, the petitioner and others and the said case is still pending. A departmental proceeding was also initiated against the petitioner and other officers of the Board. The memo of charge dated 25.10.85 was served upon the petitioner, a copy of which has been annexed as Annexure-2 to the writ application. The charge, in brief, against the petitioner is that he having informed the Financial Controller of the Board earlier regarding irregular purchases of different kinds of materials by the General Manager-cum-Chief Engineer of the Kosi Area Electricity Board later on connived with him and others and sent requisitions for funds from the Apex Board for payment to suppliers for the said irregular purchases. He made requisition for a total sum of Rs. 286.29 lacs. While the said departmental proceeding was pending the petitioner superannuated on 30th October, 92 and a provisional pension of 90% was sanctioned vide the Board order dated 29.10.92. The departmental enquiry was conducted by the Director of the departmental proceeding and he submitted a report on 25.5.88 holding that no charge has been substantiated against the petitioner. A copy of the said enquiry report has been annexed as Annexure-3 to the writ application. A copy of the said enquiry report was supplied to the petitioner vide letter dated 3.11.89.
3. The petitioner tiled a writ application being C.W.J.C. No. 3712/93 in this Court for a direction for payment of his full pension, dearness allowance, gratuity and other post retirement benefits. The said writ application was disposed of on 27.1.94, a copy of which has been annexed as Annexure-8 to the writ application. This Court having taken note of the fact that a departmental proceeding as well as a criminal case is pending did not direct for payment of full pension but ordered for payment of gratuity as no provision was brought to the notice of the Court that the same could be withheld during the pendency of the departmental proceeding and the criminal case. With regard to dearness allowance and other dues a direction was issued to file a representation with a direction to the Board to dispose of the same in accordance with law. Again the petitioner filed a writ application being C.W.J.C. No. 4945/94 making a grievance that full retiral benefits have not been paid. This Court held that so far pendency of the criminal case is concerned that will not affect the right of the petitioner to claim his post retirement benefits, but the pendency of a departmental proceeding which was initiated before the retirement of the petitioner is the only point which requires consideration under Rule 43 (b) of the Bihar Pension Rules, disciplinary proceeding initiated against an officer before his retirement can be continued and dependent upon the findings in that proceeding, a decision may be taken under that rule. This Court having noticed that the enquiry report has already been submitte
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