{"id":24817,"date":"2011-11-04T00:00:00","date_gmt":"2011-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mangal-prasad-vs-the-bihar-state-electricity-bo-on-4-november-2011"},"modified":"2018-01-30T09:26:39","modified_gmt":"2018-01-30T03:56:39","slug":"mangal-prasad-vs-the-bihar-state-electricity-bo-on-4-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mangal-prasad-vs-the-bihar-state-electricity-bo-on-4-november-2011","title":{"rendered":"Mangal Prasad vs The Bihar State Electricity Bo on 4 November, 2011"},"content":{"rendered":"
Patna High Court – Orders<\/div>\n
Mangal Prasad vs The Bihar State Electricity Bo on 4 November, 2011<\/div>\n
                    IN THE HIGH COURT OF JUDICATURE AT PATNA\n                                Civil Writ Jurisdiction Case No.13534 of 2004\n                 =============================================\n<\/pre>\n
                 Mangal Prasad, Retired Store Assistant, aged about 66 years, son of Late
\n                 Ranglal Prasad, resident of village- Barki Chapiyan, P.O.- Chapiyan Bujro,
\n                 District- Siwan.\n<\/p>\n
                                                                         …. …. Petitioner\/s
\n                                                     Versus\n<\/p>\n
                 1. The Bihar State Electricity Board through its Secretary, Vidyut
\n                    Bhawan, Bailey Road, Patna.\n<\/p>\n
                 2. Secretary, Jharkhand State Electricity Board, HEC Engineering
\n                    Building, At & P.O.- Hinoo, Ranchi.\n<\/p>\n
                 3. Joint Secretary (Workmen Establishment), Bihar State Electricity
\n                    Board, Vidyut Bhawan, Bailey Road, Patna.\n<\/p>\n
                 4. General Manager-cum-Chief Engineer Patratu Thermal Power Station,
\n                    District- Hazaribagh, Jharkhand.\n<\/p>\n
                 5. Electrical Superintending Engineering, Central Store, Patratu Thermal
\n                    Power Station, District- Hazaribagh.\n<\/p>\n
                 6. Electrical Executive Engineer, Central Store, Patratu Thermal Power
\n                    Station, District- Hazaribagh.\n<\/p>\n
                 7. Assistant Electrical Engineer (Senior Engineer), Patratu Thermal
\n                    Power Station, District- Hazaribagh.\n<\/p>\n
                                                                        …. …. Respondent\/s
\n                 =============================================
\n                 Appearance :<\/p>\n
\n                 For the Petitioner\/s     : Mr. Banbari Sharma\n                                               Mr. R.K.Sinha\n                                               Mr. Nilesh Kumar Nirala\n\n                 For the Respondent\/s      :   Mr. Vinay Kirti Singh\n                 For J.S.E.B.              :   Mr. Dhruba Mukherjee\n\n<\/pre>\n
                 =============================================<\/p>\n
6   04-11-2011          In this application filed under Article 226 of the<\/p>\n
                 Constitution       of    India,     the    petitioner      questions       the<\/p>\n
                 sustainability of the Office Order No. 1944 dated 20.5.2003<\/p>\n
                 (Annexure-1) passed by the Joint Secretary, Bihar State<\/p>\n
                 Electricity Board (for short “the Board”) whereby a sum of<\/p>\n
                 Rs. 2,30,900\/- has been directed to be recovered from the<\/p>\n
                 post retiral benefits payable to the petitioner on account of
\n                          2<\/span><\/p>\n
shortage of fuel in the Fuel Tank\/Pump of the Patratu<\/p>\n
Thermal Power Station (PTPS) of the respondent Board<\/p>\n
where the petitioner was posted as a Store Assistant during<\/p>\n
the period (1.1.1984 to 28.2.1994. By filing interlocutory<\/p>\n
application (I.A. No. 25590 of 2011), the petitioner has also<\/p>\n
assailed the order passed by the Appellate Authority dated<\/p>\n
3.3.2004 (Annexure-11) on the appeal preferred by the<\/p>\n
petitioner against the impugned order dated 20.5.2003<\/p>\n
(Annexure-1).\n<\/p>\n
      While     posted       as   the   Store   Assistant   of   the<\/p>\n
Petrol\/Diesel Pump at PTPS, petitioner was required to<\/p>\n
supply fuel on requisition signed by the designated officer. It<\/p>\n
is the petitioner’s case that he was placed under immediate<\/p>\n
supervision of the Assistant Electrical Engineer, PTPS.<\/p>\n
Petitioner reported on the leakage in the supply line\/pipe of<\/p>\n
the Fuel Station in the year 1997 as reported to him by the<\/p>\n
Mechanic of Indian Oil Corporation (IOC), Namkum. Further<\/p>\n
case of the petitioner is that earlier also, he had informed the<\/p>\n
higher authorities by several communications about the said<\/p>\n
leakage whereafter the matter was taken up with the Deputy<\/p>\n
General Manager, IOC (Annexure-4 series). No follow up<\/p>\n
action, however, was taken which propelled him to file
\n                       3<\/span><\/p>\n
further   representations   (Annexure-5   series).   Petitioner<\/p>\n
applied for medical leave and after availing the same from<\/p>\n
4.7.1991 to 16.9.1991, he again joined the office only to find<\/p>\n
shortage of 7393.84 ltrs of diesel. The matter was reported<\/p>\n
to the higher authority (Annexure-6) whereafter a Committee<\/p>\n
consisting of officials of the PTPS and IOC was constituted<\/p>\n
in the year 1992 for enquiry and verification of the shortage<\/p>\n
in the diesel\/petrol tank of the Fuel Station. The Electrical<\/p>\n
Executive Engineer by communication dated 18.7.2000<\/p>\n
(Annexure-8) referred the matter to the respondent Board for<\/p>\n
reconciliation of the shortage of fuel stating therein that no<\/p>\n
Store Register was found maintained by the petitioner.<\/p>\n
During enquiry, 52 numbers of articles\/materials\/equipments<\/p>\n
placed in his custody were also found missing therefrom<\/p>\n
quantified at Rs. 30,667.65p. The petitioner had volunteered<\/p>\n
by his communication dated 10.2.1999 ( Annexure-8) to<\/p>\n
adjust the aforesaid sum of Rs. 30,667.65p from the retiral<\/p>\n
benefits payable to him. A copy of the said communication<\/p>\n
was also enclosed therewith. In the enquiry\/verification, it<\/p>\n
was found that petitioner was Store Keeper of the Central<\/p>\n
Store between 1.1.1984 to 28.2.1994 and during the said<\/p>\n
tenure, discrepancy in the stock of diesel and petrol
\n                        4<\/span><\/p>\n
was\/were found. Be it noted that in the meanwhile, petitioner<\/p>\n
superannuated from service w.e.f. 31.8.1998 from the post<\/p>\n
he was to transfer from PTPS. It is stated that the<\/p>\n
respondent passed the impugned order dated 20.5.2003<\/p>\n
(Annexure-1) directing recovery of the amount as set out<\/p>\n
thereunder.\n<\/p>\n
        Learned counsel for the petitioner contended that the<\/p>\n
order    impugned    was   passed   without   instituting   any<\/p>\n
departmental proceeding and\/or a proceeding under Section<\/p>\n
43(b) of the Bihar Pension Rules (for short ” the Rules”)<\/p>\n
inasmuch as no opportunity of hearing or submitting his<\/p>\n
cause against the order was given to the petitioner. Learned<\/p>\n
counsel submits that such order effecting recovery after<\/p>\n
superannuation of the petitioner could have been passed in<\/p>\n
terms of Section 43(b) of the Rules which was never<\/p>\n
resorted to. It is contended that in the facts and<\/p>\n
circumstances of the case, the respondents were not<\/p>\n
justified in invoking provisions contained in Rule 139 of the<\/p>\n
Rules. Reliance in this regard has been placed on the<\/p>\n
following judgments:\n<\/p>\n
        (i) 2004 (3) PLJR 708 (Manohar Prasad Sinha versus<\/p>\n
State of Bihar and Ors).\n<\/p>\n
                       5<\/span><\/p>\n
      (ii) 1994 (1) PLJR 809 (Md. Idris Ansari versus State of<\/p>\n
Bihar) and<\/p>\n
      As noticed above, during pendency of the application,<\/p>\n
petitioner filed supplementary affidavit enclosing therewith<\/p>\n
the order passed on appeal dated 3.3.2004 (Annexure-11)<\/p>\n
followed by interlocutory application     (I.A. No. 25590 of<\/p>\n
2011) seeking amendment in the writ petition to assail the<\/p>\n
said order dated 3.3.2004 (Annexure-11).<\/p>\n
      A counter affidavit has been filed on behalf of<\/p>\n
respondent Board to oppose the relief(s) prayed for in the<\/p>\n
writ petition. Learned counsel for the respondent Board<\/p>\n
relying on averments made in the reply affidavit submitted<\/p>\n
that the petitioner earlier filed a writ petition for payment of<\/p>\n
post retiral dues vide C.W.J.C. No. 12940 of 2003 which<\/p>\n
was withdrawn vide order dated 9.9.2004 (Annexure-2) with<\/p>\n
liberty. The petitioner was sanctioned Rs. 84,678\/- against<\/p>\n
Gratuity amount admissible to him which was adjusted<\/p>\n
against the amount payable by the writ petitioner to the<\/p>\n
Board vide order dated 2.6.2003 (Annexure-A). It has been<\/p>\n
contended that in the light of the enquiry report of the<\/p>\n
General Manager, PTPS and Audit Report, it was deemed<\/p>\n
appropriate to proceed against the petitioner under Rule 139
\n                        6<\/span><\/p>\n
of the Rules. He was issued notice to submit his show cause<\/p>\n
vide Board’s letter No. 1440 dated 19.12.2009 (Annexure-C)<\/p>\n
which was replied by him on 3.1.2003 (part of Annexure-C).<\/p>\n
Earlier to this also, the petitioner was called upon to submit<\/p>\n
his cause against adjustment\/recovery of the loss sustained<\/p>\n
by the Board on account of lapses on his part vide Office<\/p>\n
Order No. 4173 dated 23.8.2001 which was replied by the<\/p>\n
petitioner   on     10.9.2001   (Annexure-B).      Taking     into<\/p>\n
consideration the cause shown by the petitioner, the enquiry<\/p>\n
report of the General Manager, PTPS and the Audit Report,<\/p>\n
it was found that there was proof of misconduct on his part<\/p>\n
while in service and as such actions in terms of Rule 139 of<\/p>\n
the Rules was required and the order impugned (Annexure-<\/p>\n
1) was passed whereagainst the petitioner preferred appeal<\/p>\n
which    was      considered    and     rejected   which      was<\/p>\n
communicated to the petitioner by Board’s letter dated<\/p>\n
3.3.2004(Annexure-11).       Learned    counsel    placed     the<\/p>\n
appellate order (Annexure-11) to show that between the<\/p>\n
period   1.1.1984     to   28.2.1994,   pilferage\/loss   of   fuel<\/p>\n
(diesel\/petrol) was quantified at Rs. 4,16,250\/-,           50 %<\/p>\n
whereof was found due to lapses on the part of the IOC<\/p>\n
whereas rest 50 % was found on account of grave\/serious
\n                             7<\/span><\/p>\n
lapses on the part of the petitioner and thus, a sum of Rs.<\/p>\n
2,08,125\/- only was held recoverable from the petitioner.<\/p>\n
Learned counsel, relying on the findings contained in<\/p>\n
Annexure-1 and Annexure-11 further contended that on<\/p>\n
physical verification of the Central Store placed under the<\/p>\n
charge     of        the        petitioner,          it      was     found      that<\/p>\n
materials\/machinery\/articles worth Rs. 30,667.65p were also<\/p>\n
found missing therefrom. Relying on Annexure-8, it has<\/p>\n
been contended that when the petitioner was noticed, he<\/p>\n
volunteered to make good the loss of Rs. 30,667.65p by<\/p>\n
adjustment from the post retiral dues payable to him.<\/p>\n
      Heard learned counsel for the petitioner and learned<\/p>\n
counsel for the respondent Board. Perused the materials on<\/p>\n
record. On perusal of the impugned orders (Annexure-1 and<\/p>\n
Annexure-11) read with the preceding notice(s), it appears<\/p>\n
that the petitioner has been proceeded against under Rule<\/p>\n
139   of   Rules.          There      is        no        controversy    that   the<\/p>\n
event\/incidence        pertained           to    the       period    1.1.1984    to<\/p>\n
28.2.1994.      It     further       appears               that    the   petitioner<\/p>\n
superannuated from service w.e.f. 31.8.1998. There is<\/p>\n
further no controversy that no proceeding was levied by the<\/p>\n
respondents under Rule 43(b) of the Rules and\/or any
\n                      8<\/span><\/p>\n
departmental proceeding was initiated against him for his<\/p>\n
said misconduct causing huge loss to the Board during the<\/p>\n
period the petitioner was in service. The respondents have,<\/p>\n
therefore, taken action in terms of Rule 139 of the Rules<\/p>\n
which reads as under:\n<\/p>\n
            “Rule 139(a) The full pension admissible
\n     under the rules is not to be given as a matter of
\n     course, or unless the service rendered has been
\n     really approved.\n<\/p><\/blockquote>\n
            (b) if the service has not been thoroughly
\n     satisfactory, the authority sanctioning the
\n     pension should make such reduction in the
\n     amount as it thinks proper\n<\/p><\/blockquote>\n
            (c) The State Government reserve to
\n     themselves the power of revising an order
\n     relating to pension passed by subordinate
\n     authorities under their control, if they are
\n     satisfied that the service of the petitioner was not
\n     thoroughly satisfactory or that there was proof of
\n     grave misconduct on his part while in service. No
\n     such power shall however, be exercised without
\n     giving the pensioner concerned a reasonable
\n     opportunity of showing cause against the action
\n     proposed to be taken in regard to his pension, or
\n     any power shall be exercised after the expiry of
\n     three years from the date of the order
\n     sanctioning the pension was first passed.”<\/p><\/blockquote>\n
     Scope of Rule 139 fell for consideration before a<\/p>\n
Division Bench of this Court in Md. Idris Ansari (supra). Rule<\/p>\n
139 enables the Revisional Authority to reduce the pension<\/p>\n
payable to the employee if the service of the employee has<\/p>\n
not been thoroughly satisfactory or there was proof of grave
\n                       9<\/span><\/p>\n
misconduct on the part of the employee while in service. It is<\/p>\n
more than apparent from bare perusal of the order contained<\/p>\n
in Annexure-1 that the authorities referring to the jurisdiction<\/p>\n
conferred on them under Rule 139 of the Rules had, in fact,<\/p>\n
passed the order directing the recovery for the misconduct<\/p>\n
on the part of the petitioner causing financial loss to the<\/p>\n
Board. This Court in paragraph 6 Md. Idris Ansari (supra)<\/p>\n
interpreted the said provision as under:<\/p>\n
                “6. There is no doubt that Rule 139
\n         provides that if the service of a Government
\n         servant, who has superannuated, has not been
\n         thoroughly      satisfactory,     the      authority
\n         sanctioning the pension should make such
\n         reduction in the amount as it thinks proper.
\n         However, Rule 139(c) makes it clear that the
\n         State Government may revise the order relating
\n         to pension passed by subordinate authorities
\n         under their control, if, they are satisfied that the
\n         service of the pensioner was not thoroughly
\n         satisfactory or that there was proof of grave
\n         misconduct on his part while in service. In the
\n         instant case, it is not the case of the State that
\n         the service record of the petitioner showed that
\n         his service was not satisfactory. In fact, the
\n         show cause notice (Annexure-9) issued to the
\n         petitioner under Rule 139 of the Bihar Pension
\n         Rules refers to specific acts of misconduct
\n         alleged against the petitioner in connection with
\n         the execution of works in the year 1986-87.<\/p><\/blockquote>\n
         There are more than one reason to hold that in
\n         the facts of this case the proceeding under
\n         Rule 139 was not maintainable. Firstly, if the
\n         Government wished to reduce the pension
\n         payable to the petitioner on the ground that he
\n         had committed an act of misconduct, the case
\n         being squarely covered by Rule 43(b), a
\n              10<\/span><\/p>\n
proceeding could have been initiated, if the
\nincident giving rise to the proceeding had taken
\nplace within four years of the date of the
\ninstitution of the proceeding. It is conceded in
\nthe show cause notice itself (Annexure-9) that
\nthe proceeding under Rule 43(b) could not be
\ninitiated in the facts of the case. Secondly, Rule
\n139(b) provides for the order that the
\nsanctioning authority may pass, if the service of
\na Government servant is not found to have
\nbeen thoroughly satisfactory. Rule 139(c)
\nempowers the State Government to revise an
\norder passed by subordinate authorities in
\nregard to pension if the State Government is
\nsatisfied that the service of the petitioner was
\nnot thoroughly satisfactory, or that there was
\nproof of grave misconduct on his part while in
\nservice. Even if the power to be exercised
\nunder Rule 139(b) is read in the light of the
\nprovision of Rule 139(c), the State Government
\ncan reduce the pension payable to a retired
\nGovernment servant if (a) they are satisfied
\nthat the service of the petitioner was not
\nthoroughly satisfactory or (b) there was proof of
\ngrave misconduct on his part while service. So
\nfar as the first condition is concerned, the same
\nis not fulfilled, because it is not the case of the
\nState that the record of service of the petitioner
\nwas unsatisfactory. So far as the second
\ncondition is concerned, the same is also not
\nfulfilled, because there is no proof of grave
\nmisconduct on the part of the petitioner while in
\nservice. Neither in a court of law nor in a
\ndepartmental proceeding had any charges
\nbeen proved against the petitioner. The
\nallegations remained mere allegations and they
\nwere sought to be made use of for the purpose
\nof exercise of power under Rule 139(a) and (b)
\nof the Rules. In the absence of proof of grave
\nmisconduct, as distinguished from mere
\nallegations of misconduct, the power under rule
\n139(a) and (b) could not be exercised by the
\nState Government. In these circumstances, we
\nhave no doubt that even if a wider meaning is
\n                     11<\/span><\/p>\n
         given to Rule 139(b) by reading the said rule in
\n         the light of Rule 139(c), the power conferred
\n         thereby is not wide enough to confer on the
\n         Government jurisdiction and authority to reduce
\n         the pension of a retired Government servant
\n         without proof of grave misconduct in the
\n         absence of unsatisfactory service record. Such
\n         grave misconduct may either be proved before
\n         a court of law, or even in a departmental
\n         proceeding. That not being the case, the
\n         impugned order reducing the pension of the
\n         petitioner is wholly unjustified.”\n<\/p>\n
      I have already noticed that no proceeding either under<\/p>\n
the relevant disciplinary rules or under 43(b) of the Rules<\/p>\n
was instituted and a finding was recorded with regard to<\/p>\n
misconduct of the petitioner. In absence of the aforesaid<\/p>\n
step having not been taken against him in accordance with<\/p>\n
the Rules, in my view, the respondents were not justified in<\/p>\n
invoking Rule 139 of the Rules for passing an order of<\/p>\n
recovery. From the notices given to the petitioner (copy<\/p>\n
enclosed with the counter affidavit), it is apparent that the<\/p>\n
respondents have not found the service of the petitioner<\/p>\n
thoroughly unsatisfactory on perusal of his entire service<\/p>\n
record(s). That being the position, the order impugned<\/p>\n
(Annexure-1) must go.\n<\/p>\n
     From perusal of the pleadings in the writ petition and<\/p>\n
the contents of Annexure-8 as also the appellate order<\/p>\n
(Annexure-11), it appears that the petitioner, on notice,
\n                       12<\/span><\/p>\n
made an application on 10.2.1999 permitting the Board to<\/p>\n
adjust a sum of Rs. 30,667.65p from his post retiral benefits<\/p>\n
in regard to the government materials\/articles\/instruments<\/p>\n
placed in the Central Store under his charge which were<\/p>\n
found missing therefrom on verification. In whole of the writ<\/p>\n
petition, the petitioner has not denied the aforesaid stand<\/p>\n
taken by him in course of verification of the articles\/materials<\/p>\n
placed in the Store during the period he was Incharge<\/p>\n
thereof. To that extent, this Court considers it to be a case of<\/p>\n
adjustment and not recovery since the facts to that extent<\/p>\n
are admitted. Adjustment of loss is different from recovery of<\/p>\n
the loss. Recovery can be ordered where certain losses are<\/p>\n
claimed and the employee to whom they relate dispute<\/p>\n
whereafter complying with the provisions of relevant Rules,<\/p>\n
a finding is to be recorded with regard to the liability of the<\/p>\n
employee and the quantum of loss sustained by the<\/p>\n
employer. In a case of adjustment, on the other hand, such<\/p>\n
finding in accordance with the relevant Rules is not<\/p>\n
necessary since the employee does not dispute his liability.<\/p>\n
Adjustment of the aforesaid amount of Rs. 30,667.65p in<\/p>\n
view of materials on record cannot be said to be unjust or<\/p>\n
contrary to the provision of the Rules.\n<\/p>\n
                                        13<\/span><\/p>\n
                       In view of the foregoing reasons, this Court allows the<\/p>\n
                 present writ petition in the following terms:<\/p>\n
                          (i) The order dated 20.5.2003 (Annexure-1) is<\/p>\n
                 quashed and set aside.\n<\/p>\n
                          (ii) The order passed by the Chairman and<\/p>\n
                 communicated to the petitioner vide letter dated 3.3.2004<\/p>\n
                 (Annexure-11) is quashed and set aside insofar as it relates<\/p>\n
                 to recovery of a sum of Rs. 2,08,125\/- from the post retiral<\/p>\n
                 benefits payable to the petitioner. Said order is upheld in so<\/p>\n
                 far as it relates to adjustment of Rs. 30,667.65p from the<\/p>\n
                 retiral benefits payable to the petitioner.<\/p>\n
                          (iii) The respondents are directed to refund the<\/p>\n
                 aforesaid amount of Rs. 2,08,125\/- if already deducted from<\/p>\n
                 the post retiral benefits payable to the petitioner within six<\/p>\n
                 weeks from the date of receipt\/production of a copy of this<\/p>\n
                 order before the concerned respondent.\n<\/p>\n
                          (iv) There shall be no order as to costs.\n<\/p>\n<\/p>\n
                                     (Kishore K. Mandal, J)
\nPANKAJ KUMAR\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court – Orders Mangal Prasad vs The Bihar State Electricity Bo on 4 November, 2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13534 of 2004 ============================================= Mangal Prasad, Retired Store Assistant, aged about 66 years, son of Late Ranglal Prasad, resident of village- Barki Chapiyan, P.O.- Chapiyan Bujro, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,27],"tags":[],"class_list":["post-24817","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court-orders"],"yoast_head":"\nMangal Prasad vs The Bihar State Electricity Bo on 4 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mangal-prasad-vs-the-bihar-state-electricity-bo-on-4-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mangal Prasad vs The Bihar State Electricity Bo on 4 November, 2011 - 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