This Appeal under Clause 10 of the Letters Patent has been preferred by the respondent-Bihar State Electricity Board, (now South Bihar Power Distribution Company Limited) (hereinafter referred to as ‘the Board’) against the judgment and order dated 29th October 2010 passed by the learned Single Judge in CWJC No. 704 of 2004.

2. The above CWJC No. 704 of 2004 was filed by one Paras Nath Dubey, a retired employee of the Board, against the order dated 5th May 2003 made by the Board withholding 5% of the pension, and the order dated 28th August 2003 made by the Financial Controller to recover a sum of Rs.80,600.00 being the amount of advance received by the petitioner for distribution and maintenance work while he was in service and had not accounted for and a sum of Rs.6,663.70 being the amount of excess pay. According to the petitioner, the order of withholding the pension as well as the order of recovery was vitiated having been made in contravention of the rules. Although the enquiry officer had recorded finding in favour of the petitioner, the disciplinary authority did not afford opportunity of hearing in respect of finding of guilt recorded by it. The order of withholding of 5% of pension was not commensurate to the guilt proved against the petitioner.

3. The Writ Petition was contested by the Board. The Board filed counter affidavit. According to the Board, the Board has adopted the Bihar Pension Rules, 1950 (hereinafter referred to as the ‘Pension Rules’) for application to its employees. In view of rule 43(b) of the Pension Rules, the Board has the authority to withhold the pension of a pensioner if he is found guilty of misconduct in a disciplinary proceeding. The Board also has the power to recover the amount of loss suffered by the Board from the terminal dues of a pensioner.

4. Pending the Petition, the petitioner passed away in 2007. Since his death the Petition was pursued by his heir and legal representative - his wife Deo Lagna Devi, the present respondent.

5. Learned Single Judge has allowed the Writ Petition on the premise that the Board had failed to follow the procedure of departmental proceeding scrupulously. Although the enquiry officer had recorded finding in favour of the petitioner, the Board was required to record its own reasons for differing with the finding of the enquiry officer and was required to give notice to the petitioner to show cause why the finding of the enquiry officer be not accepted and why the petitioner be not held guilty of the charges levelled against him. After receiving the reply and holding the petitioner guilty of the charges, the Board was obliged to give notice to show cause why the petitioner should not be punished for the guilt established against the petitioner. In the present case, the Board gave a composite notice recording its own reasons for not accepting the enquiry officer’s findings and for holding the petitioner guilty and also calling upon the petitioner to show cause why 50% of the pension should not be withheld. According to the learned Single Judge, procedure adopted by the Board was contrary to the principles of service jurisprudence. The order of punishment and recovery were, therefore, vitiated.

6. Feeling aggrieved the Board has preferred this Appeal.

7. Learned advocate Mr. Vinay Kirti Singh has appeared for the Board. Mr. Singh has, with a view to satisfying the Court, produced the Resolution of the Board dated 2nd December 1987. It appears that the Board had, under its resolution dated 6th September 1966, adopted the provisions contained in Bihar Pension Rules for admissibility of pension to its employees born in pensionable establishment. Under the said resolution dated 2nd December 1987 the Board has affirmed that the Pension Rules and the Government Resolution dated 31st July 1980 as well as the circular, resolution, order of the Bihar Government issued in connection with simplifying the procedure would automatically apply to the employees of the Board