JUDGMENT
G.C. Bharuka, J.
1. In this writ application the petitioner is aggrieved by the order of the State Government as contained in Memo No. 5950, dated 31-12-1988 (Annexure-15) and its communication to the Accountant General, Bihar as contained in Memo No. 337, dated 18-1-1990 (Annexure-17) by which it has been directed that the petitioner will be paid pension after deduction of 5% and the total amount of deduction payable to the petitioner will be calculated on the basis of the salary which he was entitled to as an Excise Inspector since he was not promoted to any higher post. In C.W.J.C. 336 of 1983 disposed on 12th October, 1990 which was filed by this petitioner, it was directed that his seniority has to be determined from 22-2-1968 which is the date on which the petitioner was promoted to the post of inspector of Excise and not from 22-2-1970 when he was confirmed on that post. It was also directed in that case that the petitioner has to be granted all consequential benefits pertaining to his service.
2. So far as the present writ application is concerned, the relevant facts are that pursuant to a charge sheet (Annexure-6) dated 31-7-1984 a departmental proceeding was initiated against the petitioner after due notice to him. The Conducting Officer submitted his report dated 5-9-1986 (Annexure-10) in which it was held that though no pecuniar loss has been caused to the Government because of commission or omission on the part of the petitioner but because of negligence and carelessness of the petitioner the concerned licensee had availed opportunity of some manipulations. In the meantime, on 31-12-1985, the petitioner retired from the service. Therefore, the Government by communication dated 19th October, 1987 (Annexure-12) initimated to the petitioner that, keeping in view the departmental enquiry and the nature of allegations, it has been decided to deduct 15% of pension payable to the petitioner since his activities were found to be unsatisfactory during the tenure of his service. The petitioner was also directed to file his explanation in this regard under Rule 139 of Bihar Pension Rules (hereinafter referred to as the ‘Rules’). Accordingly, the petitioner submitted his explanation. Thereafter, the petitioner was communicated with the order dated 31st December, 1988 (Annexure-15) containing therein that pursuant to power under Rule 139 of the Rules, the Government has decided to deduct 5% from the pension payable to the petitioner. As a consequence of this order, the State Government also communicated to the Accountant General, Bihar by Annexure ’17’ that the petitioner should be paid pension by deducting 5% and the pension payable to the petitioner will be calculated on the basis of salary payable to the petitioner as Inspector of Excise since he was not given any regular promotion to the post of Superintendent.
3. Mr. Madhup, learned Counsel appearing for the petitioner, has submitted that the order as contained in Annexure ’15’ is ultra vires the powers of the State Government, because, as is evident from Annexure ’12’ referred to above, the decision for making deductions from the pension has been taken pursuant to a departmental enquiry which was initiated against the petitioner while he was in service. Therefore, the punishment with regard to deduction of pension can be appropriately taken only under Rub 43 of the Rules. His further submission is that under Rule 43, the punishment of making certain deduction from the pension can be awarded only if (i) any pecuniary loss has been caused to the Government because of the conduct of the petitioner or (ii) if there is any finding in any departmental or judicial proceeding holding the pensioner guilty of gross misconduct by referring to the finding of the Conducting Officer as contained in Annexure ’10’. It has been submitted that in the present case, none of these two condition precedents have been fulfilled and therefore, the Government was not competent to order for deduction of even 5% of the pension payable to the petitioner. In support of his submission he has relied on 1979 SC 1022, (Pr. 9) and 1990 SC 1923 (Pr. 6).
4. Sri Ram Suresh Roy, learned Counsel appearing for the State, has submitted that since according to the Conducting Officer the petitioner was found to be negligent and careless in his duties giving opportunities to the licensees to make manipulations in their transactions, therefore, it should be held that this amounted to gross misconduct within the meaning of Rule 43(b) of the Rules and as such, the Government was within its jurisdiction to impose penalty of deducting 5% from the pension payable to the petitioner.
5. Rule 43 of the Bihar Pension Rules reads as under:
43. (a) Future good conduct is an implied condition of every grant of a 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 the 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 witholding 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 ;
(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
6. In my opinion, the impugned order as contained is Annexure “15” has been clearly passed under Rule 43 of the Rules and reference to Rule 139 is inconsequential. So far as the Rule 43(b) is concerned, as has been rightly submitted by Mr. Madhup, none of the two condition precedents relevant for imposing the impugned penalty has been fulfilled in this case. Mere negligent or careless act on the part of an employee cannot in the normal course be said to be a misconduct much less grave misconduct. This aspect of the matter has been considered by the Supreme Court in case of Union of India and Ors. v. V.J. Ahmed reported in 1979 SC 1024. I may usefully quote the relevant passage at Para 9, which reads as under:
The five charges listed above at a glance would convey the impression that the respondent was not a very efficient officer. Some negligence is being attributed to him and some lack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges. To wit, charge No. 2 refers to the quality of lack of leadership and charge No. 5 enumerates inaptitude, lack of foresight, lack of firmness and indecisiveness. These are qualities undoubtedly expected of a superior officer and they may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not, or they may be relevant for deciding the competence of the person to hold the post, but they cannot be elevated to the level of acts of omission or Commission as contemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under Rule 3. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled so as to incur the penalty under the rules.
7. Further in the case of D. V. Kapoor v. Union of India and Ors. reported in 1990 SC 1923, (para 6), it has been held that:
As seen, the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part, permanently or for a specified period or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs. 60.
8. In the present case also there is neither any material nor any finding that the petitioner was guilty of the charge of any misconduct. Even if reliance is allowed to be placed on Rule 139 of the rules, there is nothing on the record to show as to how the service of the petitioner was found to be unsatisfactory. No fact or material has been placed on record to substantiate this inference.
9. For all these reasons, I quash the orders as contained in Annexure ’15’ and ’17’ by which directions have been issued for deduction 5% pension payable to the petitioner. So far as the quantum of pension payable to the petitioner is concerned, it has to be calculated by reference to the post on which he would have retired, in the right of judgment delivered in his favour in C.W.J.C. No. 336 of 1983 referred to above. Accordingly, the writ application is allowed. There will be no order as to costs.
10. It is expected that the concerned authority will take all appropriate steps to ensure grant of reliefs to the petitioner pursuant to this judgment with all expedition since he has retired back to save him from any further harassment.