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IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Ganesh Prasad Yadav - Appellant
Versus
The State Of Bihar & Ors. - Respondent
Civil Writ Jurisdiction Case No. 16576 of 2017
Decided On : 03-08-2021
Bihar Pension Rules, 1950 – Rule 43(b) – Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 – Rule 18 – Punishment of withholding of 25% pension imposed on petitioner – Sole allegation against petitioner is of making recommendation for price neutralization in respect of a contractor which was found to be substantially more than actually payable, by Tender Committee – Another charge refers to failure on part of petitioner to duly verify various documents and registers of stores – Disciplinary Authority has not disagreed with findings recorded by Enquiring Authority in relation to calculation of amount against price neutralization by petitioner – Disciplinary Authority has differed with opinion of Enquiring Authority only in respect of responsibility of petitioner as Executive Engineer in maintaining registers – Nowhere in charge-memo, there is any allegation of ill-motive against petitioner in his conduct of sending a proposal relating to claim of agency for price neutralization – Tentative notes of disagreement also do not display any finding that petitioner had submitted such proposal with any ill-motive for his personal gain – In absence of any specific allegation in charge-memo of ill-motive against petitioner for submitting a proposal relating to determination of amount of price neutralization, Disciplinary Authority could not have recorded a finding in this regard – There is no allegation against petitioner that any misconduct or negligence on his part, has in fact caused any pecuniary loss to Government – No case of grave misconduct has been made out against petitioner which is a prerequisite for action under Rule 43(b) of Bihar Pension Rules – Impugned order quashed. (Paras 8, 10, 12, 13, 14, 19 and 26)
Service Law – Misconduct – Disregard of an essential condition of contract of service may constitute misconduct – Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct – There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating developing situation may be negligence in discharge of duty but would not constitute misconduct unless consequences directly attributable to negligence would be such as to be irreparable or resultant damage would be so heavy that degree of culpability would be very high – An error can be indicative of negligence and degree of culpability may indicate grossness of negligence. (Para 20)
JUDGMENT
1. This matter has been taken up for hearing online because of COVID-19 pandemic restrictions.
2. Aggrieved by a resolution of the Public Health Engineering Department, Government of Bihar issued vide Memo No. 853 dated 12.10.2017 whereby, in exercise of power under Rule 43(b) of Bihar Pension Rules, 1950 punishment of withholding of 25% pension has been imposed on the petitioner, the petitioner has approached this Court by filing present writ application under Article 226 of the Constitution. Short facts relevant for adjudication of the present case, as culled out from the pleadings, on record are that the petitioner at the relevant point of time was posted as the Executive Engineer, Public Health Engineer Division, Muzaffarpur. In the meeting of a Tender Committee held on 08.04.2010 at the departmental headquarter under the Chairmanship of Departmental Principal Secretary, it emerged that the petitioner had recommended for irregular payment of Rs. 2,20,54,120/- on a claim made by the contractor Ms. Jusco Ltd., Jamshedpur by way of price neutralization without any examination and proof. The Tender Committee, on careful consideration of the claim of the Firm, recommended payment of Rs. 1,14,13,628/- only. It was accordingly alleged against the petitioner that had the amount recommended by the petitioner by way of price neutralization been accepted and paid, the Government would have suffered a loss to the tune of Rs. 1,00,64,492/-. The basis for calculation done by the petitioner for recommending price neutralization was found to be defective and it was alleged in the charge memo that without proper and comprehensive enquiry on the claim of the contractor regarding price neutralization and any reliable and legal proof, the petitioner made the recommendation, which was not proper and was rather objectionable.
3. Evidently, for the occurrence of April, 2010, the departmental proceeding was initiated with the issuance of charge sheet on 31.01.2014 under Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as the BGS (CCA) Rules) which coincided with the date of the petitioner's superannuation. By a subsequent order dated 18.07.2016, the departmental proceeding was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules. By the said resolution dated 31.01.2014, the Departmental Enquiry Commissioner was appointed as the Enquiring Authority. A Presenting Officer was also appointed by the same resolution dated 31.01.2014. The petitioner submitted his written statement of defence and participated in the departmental enquiry. The Enquiring Authority submitted its report on 02.03.2016 with the findings that none of the charges against the petitioner could be established. A copy of the report of the Enquiring Authority has been brought on record by way of Annexure-3 to the writ application. The Disciplinary Authority, however, disagreed with the enquiry report and asked the petitioner to submit his response to the tentative notes of disagreement with the report of the Enquiring Authority. The said tentative notes of disagreement contained findings/reasons for disagreeing with the enquiry report. The petitioner submitted his response to the Disciplinary Authority on 19.08.2016, to the said notes of disagreement. The petitioner's explanation that findings recorded by the Enquiring Authority were correct, was not acceptable to the State Government and accordingly it was proposed to impose punishment of withholding of 25% of pension permanently. The department thereafter sought concurrence of the Bihar Public Service Commission on the proposed punishment through letter dated 09.01.2017 issued by the department. The Bihar Public Service Commission, however, refused to concur with the proposed punishment of withholding of 25% of pension. The opinion of the Bihar Public Service Commission was, however, found not acceptable by the Disciplinary Authority and accordingly, disagreei
Disciplinary action under Rule 43(b) of the Bihar Pension Rules requires proof of grave misconduct or financial loss to the government; failure to provide substantiated reasoning in orders renders th....
A single act of omission or error of judgment would not constitute misconduct unless it resulted in serious consequences.
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