IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 3534 of 2003
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Arya Kumar Lal ... ... Petitioner
-V e r s u s-
Bihar State Electricity Board & others ... ... Respondents
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner :- M/s. R.S.Mazumdar and
Kaushik Sarkhel, Advocates
For the Respondents :- M/s. A.K.Pandey and
Amit Sinha, Advocates
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C.A.V. on 24.10.2008 Pronounced on 12.11.2008
The petitioner was under the employment of the Bihar State Electricity
Board since the date of his appointment on 09.12.1957. He retired from service on
28.02.1998
as a Meter Reader from the Dhanbad Circle of the B.S.E.B. Prior to his
retirement, a departmental proceeding was initiated against him on 13.10.1997 on
the charge that without prior approval of the Board he purchased land at
Hirapur vide two separate sale deeds dated 24.03.1972, 15.10.1977 and 07.05.1978
respectively in the name of his wife and son and thereafter constructed two
storied building upon the land. On the allegation of such misconduct, a
departmental proceeding was initiated. The proceeding continued even after the
petitioner’s retirement from service and was concluded on 28.06.2000. The
petitioner was found guilty in the proceeding and by way of punishment, 5% of
his pension was to be deducted. By the impugned order dated 11.02.2003, the
deduction of 5% from the pension of the petitioner was ordered.
The petitioner has challenged the aforesaid impugned order in this writ
application.
2. Assailing the impugned order, Shri R.S.Mazumdar learned counsel for the
petitioner would argue that the departmental proceeding which was initiated
during the service period of the petitioner and continued even after his
superannuation but with-holding of pension can be made only if the charges
leveled against him are of causing financial loss to the employer either due to
misconduct or negligence.
Referring to Rule 43(b) of the Bihar Pension Rules, learned counsel for the
petitioner argues that misconduct per se, not causing financial loss, does not
confer any right on the employer to make any recovery from the pension of the
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delinquent employee. Learned counsel, in this context, refers to and relies upon
the judgement of the Patna High Court in the case of Ball Ram Thakur v/s. Bihar
State Electricity Board & another 1995 Vol. 2 PLJR page 609 and the judgement in
the case of Amod Ranjan Sinha v/s. State of Bihar & others 1999 Vol. 3 PLJR page
496.
3. Per contra, the stand taken by the respondent B.S.E.B. through the counter
affidavit filed by them is that while the petitioner was in service, a departmental
proceeding was initiated against him on the charge that he had amassed
disproportionate assets beyond his known sources of income. The departmental
proceeding continued even after the retirement of the petitioner from service and
he was found guilty.
Shri A.K.Pandey, learned counsel for the respondents would argue that
under Rule 43(b) of the Bihar Pension Rules, it is within the competence of the
employer to with-hold either full or any part of the pension of the delinquent
employee if he is found guilty of grave misconduct. Learned counsel adds that in
the departmental proceeding against the petitioner, the charge was proved
against him and he was held guilty. The departmental proceeding was
conducted strictly according to the rules of procedure and before imposing the
punishment, a second show cause was also served upon the petitioner to enable
him to submit his replies which he did and the same was considered by the
competent authorities.
4. The issue raised for determination is whether in the facts and
circumstances of the petitioner’s case under the provisions of Rule 43(b) of the
Bihar Pension Rules the respondent authorities had the power to with-hold any
portion of the pension of the petitioner ?
The contention of the respondents is that the departmental proceeding
initiated against the petitioner was on the charge of his having amassed
disproportionate assets beyond his known sources of income. However, from the
substance of charge, a copy of which has been annexed with the writ application,
it appears that the charge against him was that without prior approval of his
employer, the petitioner had purchased lands in the name of his wife and son
and had constructed a double storied building thereon. There is apparently no
charge which could suggest that he had amassed wealth beyond his known
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sources of income disproportionately or that he had indulged in any act of
“grave misconduct”.
5. Learned counsel for the respondents emphasizes that such powers are
available to the employer under Rule 43 of the Jharkhand Pension Rules. For
better appreciation, Rule 43(b) is quoted below :-
Rule 43(b) : “The State Government further reserve to themselves the
right of withholding or withdrawing a pension or any part of it, whether
permanently or for a specified period, and the right of ordering the recovery
from a pension of the whole or part of any pecuniary loss caused to
Government if the pensioner is found in departmental or judicial
proceeding to have been guilty of grave misconduct; or to have caused
pecuniary loss to Government by misconduct or negligence, during his
service including service rendered on re-employment after retirement.
6. From a bare reading of the above provisions it is manifest that though the
employer has the right to with-hold any portion of the pension of the delinquent
employee but such action could be resorted to only if the delinquent employee is
found guilty in the departmental or judicial proceeding of “grave misconduct”
and to have caused pecuniary loss to the government by such misconduct or by
his negligence during the period of his service. As rightly pointed out by he
learned counsel for the petitioner, misconduct per se does not confer the right on
the employer to with-hold any portion of the pension of the delinquent
employee. The essential condition for exercising such powers is that the
delinquent employee should, by his act of misconduct or negligence, caused
pecuniary loss to the employer. In the instant case, the fact does not indicate
either that the petitioner was found guilty of any “grave misconduct” or that he
has caused any pecuniary loss to the employer by his alleged misconduct.
7. A similar issue came up for consideration before a Bench of the Patna High
Court in the case of Amod Ranjan Sinha v/s. State of Bihar and others 1999 Vol.3
PLJR page 496 wherein it was held that in absence of gross misconduct, as
distinguished from mere allegation of misconduct, the employer has no authority
to with-hold any portion of the pension of the employee.
8. In the light of the above discussions, I find merit in this application.
Accordingly, this writ application is allowed. The impugned order dated
11.02.2003 whereby 5% of the petitioner’s pension was ordered to be deducted, is
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hereby quashed. The respondents are accordingly directed to release the
deducted 5% pension of the petitioner. The respondents shall pay the arrears of
pension from the date when such payment fell due, within three months from
the date of production of a copy of this order. In the event of the respondents’
failure to pay the arrears within the stipulated period, the payable amount shall
carry interest @ 9% per annum calculated from the date immediately after the
expiry of the stipulated period till final payment.
(D.G.R.Patnaik,J.)
Birendra/A.F.R.