JUDGMENT
Page 2014
1. Upon consideration of the facts and circumstances, as well as, the grounds mentioned in the delay condonation application, we are satisfied that there was a sufficient cause for not filing the appeal within the period of limitation. Therefore, the application for condonation of delay shall stand allowed and the delay of 40 days in filing this Letters Patent Appeal shall stand condoned.
2. Rule is made absolute. No costs.
3. Upon joint request of learned Counsels appearing for the parties, this matter has been taken up for final hearing today itself as processual part is waived by the other side.
4. We have heard learned Counsels appearing for the parties. We have considered the factual matrix. We have, also, seen small order of the learned Single Judge, recorded, on 16.5.2005, in C.W.J.C. No. 5274 of 2004.
5. The following aspects have emerged from the record which are not disputed at all:
(i) That the appellant- original writ petitioner who was working as a Nazir in Siswan Block Office, within the District of Siwan, was placed under suspension with effect from 31.8.1985 in contemplation of the alleged irregularities in respect of the public funds and Government money.
(ii) During the suspension period he was permitted to retire on 30.4.1997.
(iii) There was a criminal prosecution in respect of the subject matter of irregularities which on merits after full-fledged inquiry resulted into acquittal against the appellant.
(iv) After acquittal both the impugned orders came to be recorded by the respondents authorities on 14.12.2002.
Page 2015
(v) The orders, as aforesaid, came to be recorded without affording any opportunity of hearing being given to the appellant for which there is no dispute.
6. We have, also, considered the provision of Rule 43(b) of Bihar Pension Rules, 1950 (Rules). Rule 43 is very relevant and, therefore, it will be profitable to reproduce it which reads hereunder as:
43.(a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.
(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:
Provided that-
(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment;
(i) shall not be instituted save with the sanction of the State Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service May be made;
(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) of Clause (a); and
(c) the Bihar Public Service Commission, shall be consulted before final orders are passed.
Explanation:- For the purposes of the rule-
(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted:-
(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and
(ii) in the case of civil proceedings, on the date on which the complaint is presented, or as case may be, an application is made to a civil court.
Page 2016
7. As could be seen very well from the aforesaid rule provision that during continuance of the proceedings or in case of suspension if an employee who charged or indicted as a delinquent can be dealt with, in terms of, the provision of Sub-clause(b) of Rule 43.
8. The suspension order was recorded, as early as, in 1985 and 12 years thereafter the petitioner came to retire. So at that time pendency of the proceeding continued. It is ample clear from the rule provision by virtue of explanation to Rule 43(b) of the Rules that a departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date. In the facts and circumstances of the case on hand, the provision of explanation to Clause (b) of Rule 43 of the Rules will bring the case of the original writ petitioner for departmental action despite the embargo with regard to the limitation of four years after the retirement.
9. There can hardly be any dispute about the proposition under the general law that an employer is obliged to provide an opportunity of hearing before passing any order resulting into evil or civil consequences or adverse to the party. ‘Audi Alterant Partem’ is not the relic of the past but the relevant approach of the day. Any administrative action or even the statutory function has to be exercised freely and fairly. Fairness includes sufficient opportunity of hearing to the affected party or adverse party. Admittedly, in the present case, before imposition of order of recovery of an amount of more than Rs. 2,00000/- and deduction from the retiral dues, both orders came to be passed by the respondents authorities without following the principles of natural justice. It is an admitted fact that no notice has been given or no opportunity was afforded to the original writ petitioner before doing 30 to show his cause against the proposed action of recovery. It is, therefore, necessary to follow that procedure by the respondents authorities. This aspect perhaps has not been brought to the notice of the learned Single Judge.
10. In the light of the discussions in the foregoing paragraphs, we are left with no alternative but to quash the impugned orders of the respondents authorities dated 14.12.2002 (annexures 6 and 7), as well as, the impugned short order of the learned Single Judge with a direction to the respondents authorities to consider the case of the appellant in accordance with law and decide it as per the provisions applicable after giving an opportunity of hearing to the appellant, original writ petitioner, as no person can be visited with civil or evil consequences without giving any opportunity of hearing as observed herein before with a further direction to continue to pay the part of the pension amount regularly to the original writ petitioner which is granted by the respondents authorities failing which it will be open for the appellant to appropriately move for further orders. The respondents are further directed to dispose of the matter in accordance with law, expeditiously and preferably, within a period of ‘four months’.
11. With the aforesaid observations, this Letters Patent Appeal shall stand allowed and the impugned orders of the respondents authorities dated 14.12.2002 challenged before the learned Single Judge, as well as, the impugned order of the learned Single Judge, dated 16.5.2005 in C.W.J.C. No. 5274 of 2004 shall stand quashed and set aside. However, there shall be no order as to costs.
