IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13534 of 2004
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Mangal Prasad, Retired Store Assistant, aged about 66 years, son of Late
Ranglal Prasad, resident of village- Barki Chapiyan, P.O.- Chapiyan Bujro,
District- Siwan.
…. …. Petitioner/s
Versus
1. The Bihar State Electricity Board through its Secretary, Vidyut
Bhawan, Bailey Road, Patna.
2. Secretary, Jharkhand State Electricity Board, HEC Engineering
Building, At & P.O.- Hinoo, Ranchi.
3. Joint Secretary (Workmen Establishment), Bihar State Electricity
Board, Vidyut Bhawan, Bailey Road, Patna.
4. General Manager-cum-Chief Engineer Patratu Thermal Power Station,
District- Hazaribagh, Jharkhand.
5. Electrical Superintending Engineering, Central Store, Patratu Thermal
Power Station, District- Hazaribagh.
6. Electrical Executive Engineer, Central Store, Patratu Thermal Power
Station, District- Hazaribagh.
7. Assistant Electrical Engineer (Senior Engineer), Patratu Thermal
Power Station, District- Hazaribagh.
…. …. Respondent/s
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Appearance :
For the Petitioner/s : Mr. Banbari Sharma
Mr. R.K.Sinha
Mr. Nilesh Kumar Nirala
For the Respondent/s : Mr. Vinay Kirti Singh
For J.S.E.B. : Mr. Dhruba Mukherjee
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6 04-11-2011 In this application filed under Article 226 of the
Constitution of India, the petitioner questions the
sustainability of the Office Order No. 1944 dated 20.5.2003
(Annexure-1) passed by the Joint Secretary, Bihar State
Electricity Board (for short “the Board”) whereby a sum of
Rs. 2,30,900/- has been directed to be recovered from the
post retiral benefits payable to the petitioner on account of
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shortage of fuel in the Fuel Tank/Pump of the Patratu
Thermal Power Station (PTPS) of the respondent Board
where the petitioner was posted as a Store Assistant during
the period (1.1.1984 to 28.2.1994. By filing interlocutory
application (I.A. No. 25590 of 2011), the petitioner has also
assailed the order passed by the Appellate Authority dated
3.3.2004 (Annexure-11) on the appeal preferred by the
petitioner against the impugned order dated 20.5.2003
(Annexure-1).
While posted as the Store Assistant of the
Petrol/Diesel Pump at PTPS, petitioner was required to
supply fuel on requisition signed by the designated officer. It
is the petitioner’s case that he was placed under immediate
supervision of the Assistant Electrical Engineer, PTPS.
Petitioner reported on the leakage in the supply line/pipe of
the Fuel Station in the year 1997 as reported to him by the
Mechanic of Indian Oil Corporation (IOC), Namkum. Further
case of the petitioner is that earlier also, he had informed the
higher authorities by several communications about the said
leakage whereafter the matter was taken up with the Deputy
General Manager, IOC (Annexure-4 series). No follow up
action, however, was taken which propelled him to file
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further representations (Annexure-5 series). Petitioner
applied for medical leave and after availing the same from
4.7.1991 to 16.9.1991, he again joined the office only to find
shortage of 7393.84 ltrs of diesel. The matter was reported
to the higher authority (Annexure-6) whereafter a Committee
consisting of officials of the PTPS and IOC was constituted
in the year 1992 for enquiry and verification of the shortage
in the diesel/petrol tank of the Fuel Station. The Electrical
Executive Engineer by communication dated 18.7.2000
(Annexure-8) referred the matter to the respondent Board for
reconciliation of the shortage of fuel stating therein that no
Store Register was found maintained by the petitioner.
During enquiry, 52 numbers of articles/materials/equipments
placed in his custody were also found missing therefrom
quantified at Rs. 30,667.65p. The petitioner had volunteered
by his communication dated 10.2.1999 ( Annexure-8) to
adjust the aforesaid sum of Rs. 30,667.65p from the retiral
benefits payable to him. A copy of the said communication
was also enclosed therewith. In the enquiry/verification, it
was found that petitioner was Store Keeper of the Central
Store between 1.1.1984 to 28.2.1994 and during the said
tenure, discrepancy in the stock of diesel and petrol
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was/were found. Be it noted that in the meanwhile, petitioner
superannuated from service w.e.f. 31.8.1998 from the post
he was to transfer from PTPS. It is stated that the
respondent passed the impugned order dated 20.5.2003
(Annexure-1) directing recovery of the amount as set out
thereunder.
Learned counsel for the petitioner contended that the
order impugned was passed without instituting any
departmental proceeding and/or a proceeding under Section
43(b) of the Bihar Pension Rules (for short ” the Rules”)
inasmuch as no opportunity of hearing or submitting his
cause against the order was given to the petitioner. Learned
counsel submits that such order effecting recovery after
superannuation of the petitioner could have been passed in
terms of Section 43(b) of the Rules which was never
resorted to. It is contended that in the facts and
circumstances of the case, the respondents were not
justified in invoking provisions contained in Rule 139 of the
Rules. Reliance in this regard has been placed on the
following judgments:
(i) 2004 (3) PLJR 708 (Manohar Prasad Sinha versus
State of Bihar and Ors).
5
(ii) 1994 (1) PLJR 809 (Md. Idris Ansari versus State of
Bihar) and
As noticed above, during pendency of the application,
petitioner filed supplementary affidavit enclosing therewith
the order passed on appeal dated 3.3.2004 (Annexure-11)
followed by interlocutory application (I.A. No. 25590 of
2011) seeking amendment in the writ petition to assail the
said order dated 3.3.2004 (Annexure-11).
A counter affidavit has been filed on behalf of
respondent Board to oppose the relief(s) prayed for in the
writ petition. Learned counsel for the respondent Board
relying on averments made in the reply affidavit submitted
that the petitioner earlier filed a writ petition for payment of
post retiral dues vide C.W.J.C. No. 12940 of 2003 which
was withdrawn vide order dated 9.9.2004 (Annexure-2) with
liberty. The petitioner was sanctioned Rs. 84,678/- against
Gratuity amount admissible to him which was adjusted
against the amount payable by the writ petitioner to the
Board vide order dated 2.6.2003 (Annexure-A). It has been
contended that in the light of the enquiry report of the
General Manager, PTPS and Audit Report, it was deemed
appropriate to proceed against the petitioner under Rule 139
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of the Rules. He was issued notice to submit his show cause
vide Board’s letter No. 1440 dated 19.12.2009 (Annexure-C)
which was replied by him on 3.1.2003 (part of Annexure-C).
Earlier to this also, the petitioner was called upon to submit
his cause against adjustment/recovery of the loss sustained
by the Board on account of lapses on his part vide Office
Order No. 4173 dated 23.8.2001 which was replied by the
petitioner on 10.9.2001 (Annexure-B). Taking into
consideration the cause shown by the petitioner, the enquiry
report of the General Manager, PTPS and the Audit Report,
it was found that there was proof of misconduct on his part
while in service and as such actions in terms of Rule 139 of
the Rules was required and the order impugned (Annexure-
1) was passed whereagainst the petitioner preferred appeal
which was considered and rejected which was
communicated to the petitioner by Board’s letter dated
3.3.2004(Annexure-11). Learned counsel placed the
appellate order (Annexure-11) to show that between the
period 1.1.1984 to 28.2.1994, pilferage/loss of fuel
(diesel/petrol) was quantified at Rs. 4,16,250/-, 50 %
whereof was found due to lapses on the part of the IOC
whereas rest 50 % was found on account of grave/serious
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lapses on the part of the petitioner and thus, a sum of Rs.
2,08,125/- only was held recoverable from the petitioner.
Learned counsel, relying on the findings contained in
Annexure-1 and Annexure-11 further contended that on
physical verification of the Central Store placed under the
charge of the petitioner, it was found that
materials/machinery/articles worth Rs. 30,667.65p were also
found missing therefrom. Relying on Annexure-8, it has
been contended that when the petitioner was noticed, he
volunteered to make good the loss of Rs. 30,667.65p by
adjustment from the post retiral dues payable to him.
Heard learned counsel for the petitioner and learned
counsel for the respondent Board. Perused the materials on
record. On perusal of the impugned orders (Annexure-1 and
Annexure-11) read with the preceding notice(s), it appears
that the petitioner has been proceeded against under Rule
139 of Rules. There is no controversy that the
event/incidence pertained to the period 1.1.1984 to
28.2.1994. It further appears that the petitioner
superannuated from service w.e.f. 31.8.1998. There is
further no controversy that no proceeding was levied by the
respondents under Rule 43(b) of the Rules and/or any
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departmental proceeding was initiated against him for his
said misconduct causing huge loss to the Board during the
period the petitioner was in service. The respondents have,
therefore, taken action in terms of Rule 139 of the Rules
which reads as under:
“Rule 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 proper
(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 petitioner 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 power shall be exercised after the expiry of
three years from the date of the order
sanctioning the pension was first passed.”
Scope of Rule 139 fell for consideration before a
Division Bench of this Court in Md. Idris Ansari (supra). Rule
139 enables the Revisional Authority to reduce the pension
payable to the employee if the service of the employee has
not been thoroughly satisfactory or there was proof of grave
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misconduct on the part of the employee while in service. It is
more than apparent from bare perusal of the order contained
in Annexure-1 that the authorities referring to the jurisdiction
conferred on them under Rule 139 of the Rules had, in fact,
passed the order directing the recovery for the misconduct
on the part of the petitioner causing financial loss to the
Board. This Court in paragraph 6 Md. Idris Ansari (supra)
interpreted the said provision as under:
“6. There is no doubt that Rule 139
provides that if the service of a Government
servant, who has superannuated, has not been
thoroughly satisfactory, the authority
sanctioning the pension should make such
reduction in the amount as it thinks proper.
However, Rule 139(c) makes it clear that the
State Government may revise the 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. In the
instant case, it is not the case of the State that
the service record of the petitioner showed that
his service was not satisfactory. In fact, the
show cause notice (Annexure-9) issued to the
petitioner under Rule 139 of the Bihar Pension
Rules refers to specific acts of misconduct
alleged against the petitioner in connection with
the execution of works in the year 1986-87.
There are more than one reason to hold that in
the facts of this case the proceeding under
Rule 139 was not maintainable. Firstly, if the
Government wished to reduce the pension
payable to the petitioner on the ground that he
had committed an act of misconduct, the case
being squarely covered by Rule 43(b), a
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proceeding could have been initiated, if the
incident giving rise to the proceeding had taken
place within four years of the date of the
institution of the proceeding. It is conceded in
the show cause notice itself (Annexure-9) that
the proceeding under Rule 43(b) could not be
initiated in the facts of the case. Secondly, Rule
139(b) provides for the order that the
sanctioning authority may pass, if the service of
a Government servant is not found to have
been thoroughly satisfactory. Rule 139(c)
empowers the State Government to revise an
order passed by subordinate authorities in
regard to pension if the State Government is
satisfied that the service of the petitioner was
not thoroughly satisfactory, or that there was
proof of grave misconduct on his part while in
service. Even if the power to be exercised
under Rule 139(b) is read in the light of the
provision of Rule 139(c), the State Government
can reduce the pension payable to a retired
Government servant if (a) they are satisfied
that the service of the petitioner was not
thoroughly satisfactory or (b) there was proof of
grave misconduct on his part while service. So
far as the first condition is concerned, the same
is not fulfilled, because it is not the case of the
State that the record of service of the petitioner
was unsatisfactory. So far as the second
condition is concerned, the same is also not
fulfilled, because there is no proof of grave
misconduct on the part of the petitioner while in
service. Neither in a court of law nor in a
departmental proceeding had any charges
been proved against the petitioner. The
allegations remained mere allegations and they
were sought to be made use of for the purpose
of exercise of power under Rule 139(a) and (b)
of the Rules. In the absence of proof of grave
misconduct, as distinguished from mere
allegations of misconduct, the power under rule
139(a) and (b) could not be exercised by the
State Government. In these circumstances, we
have no doubt that even if a wider meaning is
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given to Rule 139(b) by reading the said rule in
the light of Rule 139(c), the power conferred
thereby is not wide enough to confer on the
Government jurisdiction and authority to reduce
the pension of a retired Government servant
without proof of grave misconduct in the
absence of unsatisfactory service record. Such
grave misconduct may either be proved before
a court of law, or even in a departmental
proceeding. That not being the case, the
impugned order reducing the pension of the
petitioner is wholly unjustified.”
I have already noticed that no proceeding either under
the relevant disciplinary rules or under 43(b) of the Rules
was instituted and a finding was recorded with regard to
misconduct of the petitioner. In absence of the aforesaid
step having not been taken against him in accordance with
the Rules, in my view, the respondents were not justified in
invoking Rule 139 of the Rules for passing an order of
recovery. From the notices given to the petitioner (copy
enclosed with the counter affidavit), it is apparent that the
respondents have not found the service of the petitioner
thoroughly unsatisfactory on perusal of his entire service
record(s). That being the position, the order impugned
(Annexure-1) must go.
From perusal of the pleadings in the writ petition and
the contents of Annexure-8 as also the appellate order
(Annexure-11), it appears that the petitioner, on notice,
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made an application on 10.2.1999 permitting the Board to
adjust a sum of Rs. 30,667.65p from his post retiral benefits
in regard to the government materials/articles/instruments
placed in the Central Store under his charge which were
found missing therefrom on verification. In whole of the writ
petition, the petitioner has not denied the aforesaid stand
taken by him in course of verification of the articles/materials
placed in the Store during the period he was Incharge
thereof. To that extent, this Court considers it to be a case of
adjustment and not recovery since the facts to that extent
are admitted. Adjustment of loss is different from recovery of
the loss. Recovery can be ordered where certain losses are
claimed and the employee to whom they relate dispute
whereafter complying with the provisions of relevant Rules,
a finding is to be recorded with regard to the liability of the
employee and the quantum of loss sustained by the
employer. In a case of adjustment, on the other hand, such
finding in accordance with the relevant Rules is not
necessary since the employee does not dispute his liability.
Adjustment of the aforesaid amount of Rs. 30,667.65p in
view of materials on record cannot be said to be unjust or
contrary to the provision of the Rules.
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In view of the foregoing reasons, this Court allows the
present writ petition in the following terms:
(i) The order dated 20.5.2003 (Annexure-1) is
quashed and set aside.
(ii) The order passed by the Chairman and
communicated to the petitioner vide letter dated 3.3.2004
(Annexure-11) is quashed and set aside insofar as it relates
to recovery of a sum of Rs. 2,08,125/- from the post retiral
benefits payable to the petitioner. Said order is upheld in so
far as it relates to adjustment of Rs. 30,667.65p from the
retiral benefits payable to the petitioner.
(iii) The respondents are directed to refund the
aforesaid amount of Rs. 2,08,125/- if already deducted from
the post retiral benefits payable to the petitioner within six
weeks from the date of receipt/production of a copy of this
order before the concerned respondent.
(iv) There shall be no order as to costs.
(Kishore K. Mandal, J)
PANKAJ KUMAR/-