IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11 of 2010 1. Tej Bahadur Singh S/O Late Suraj Dayal Singh R/O 404, Madhu Apartment, P.S.- Rupaspur, Distt.- Patna Versus 1. The State Of Bihar Through Principal Secretary, Deptt. Of Planning And Development, Govt. Of Bihar, Patna 2. Joint Secretary, Planning And Development Deptt., Govt. Of Bihar, Patna 3. Director, Directorate Of Statistic & Evaluation Of Bihar, Govt. Of Bihar, Patna 4. Joint Director Cum Conducting Officer Of Statistics & Evaluation Deptt., Govt. Of Bihar, Patna ----------- For the Petitioner:- Mr. Prabhat Ranjan, Adv. For the State:- A.C. to G.P.-6 -------------- 3. 15.07.2011 I.A. No. 3567 of 2011 has been filed challenging the final order of punishment dated 5.4.2011 passed during the pendency of the writ application withholding 25% of his pension. The original challenge was to the very initiation of proceedings under Rule 43 (b) of the Bihar Pension Rules (hereinafter called the Pension Rules). In order to prevent multiplicity of litigation the amendment is allowed after hearing the parties. There were two entries of his date of birth in the service book. One entry was dated 8.9.1975 showing his date of birth as 9.7.1947. The other dated 27.8.2002 bore the date of birth 9.7.1949. Based on the former, the petitioner has superannuated from the post of Junior statistical assistant on 31.7.2007. A show cause notice was issued to him on 24.8.2007 2 asking for his matriculation certificate which he did not produce. Departmental proceedings were initiated against him under Rule 43 (b) of the pension rules and two charges framed on 29.5.2008. The petitioner questioned the invocation of Rule 43(b) of the Pension Rules. The enquiry Officer on 24.2.2009 held that the presenting officer despite repeated opportunities was not co-operating. No efforts had been made by him to prove the charge with regard to the alleged interpolation of the date of birth. The petitioner had denied the charge of refusing to receive the notice for which no rebuttal was made by the Department. He therefore returned the enquiry on 11.11.2009 observing that it was not possible for him to arrive at any conclusion. Learned counsel for the petitioner contends that a proceeding under Rule 43(b) of the Pension Rules could be initiated only in respect of a event/charge not beyond four years computed from the date of charge. The allegations related to an alleged discrepancy in the date of birth as recorded on 8.9.1975 and 29.8.2002 which was beyond the period of four years from the date of charge. The order of punishment under proceeding without jurisdiction was void ab initio. Reliance was further placed on Rule 96 3 of the Bihar Financial Rules. Counsel for the State contended that it was not known when the correction in the date of birth came to be made and therefore there was no error in the initiation of proceeding from 24.8.2007 when the petitioner refused to receive the notice. The proceedings were therefore within four years from the date of superannuation. A First Information Report has also been directed to be lodged against the petitioner with regard to the alleged interpolations. Rule 43 (b) of the Pension Rules has been elaborately considered in 1995 Supp (3) SCC 56 (State of Bihar v. Mohd. Idris Ansari ). No proceeding is permissible there under for a charge beyond the period of four years from the date of the charge after superannuation, explained at paragraph 7 as follows :- “7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), 4 in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture……” The alleged interpolations related to the years 1975 and 2002. They were both well beyond four years from the date of the charge i.e. 29.5.2008 after his superannuation on 31.7.2007. No specific charge has been made that the interpolations were made within four years from the date of superannuation. Rule 96 of the Bihar Financial Rules provides that any correction in the date of birth is required to be made within a period of 10 years from the date of entry into service. This bar shall apply to both parties prima facie, cases of established fraud and forgery being exceptions. He has not derived had any advantage by an extended service tenure. On the contrary he has suffered reduced service tenure on basis of the date of birth as 9.7.1947. as otherwise he may have secured further service of two years. Factually by no stretch of imagination can it be said to have caused any “pecuniary loss” to the Government or any imputation on lack of “future good conduct” which are sine qua non for invocation of power under Rule 43 (a) or (b) of 5 the Bihar Pension Rules. The show cause issued after superannuation on 24.8.2007 does not fulfill the requirements of law. There can be no departmental proceeding on a speculative ground that perhaps it can be proved during the enquiry that the event occurred four years prior to superannuation. The charge had to be specific. In (2005) 3 SCC 501 (Ram Dayal Rai v. Jharkhand SEB) dealing with a 5% reduction of pension it was held at paragraph 17 :- “17…..If the pensioner's benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the Government.” Considering the facts and circumstances of the case, the Court holds that the proceedings were based on non-est grounds. The proceedings were patently beyond Rule 43 (a) or (b) of the Pension Rules. Additionally the proceedings were initiated and show cause notice served under Rule 43(b) of the Pension Rules. The final order has been passed under Rule 43(a) of the Bihar Pension Rules without giving 6 opportunity to the petitioner to defend himself under that clause. A proceeding under the Pension Rules is an extremely serious matter and is not to be lightly resorted to. Equally, serious matters shall brook no delay. There has to be serious judicious exercise of the power when all aspects including the possibility of the punishment being ultimately upheld must all be considered at the very inception. A pensioner has to contest the proceedings both before the authorities and then before the Court from his meager pensionary resources. At a time when he should be enjoying the peace and serenity after a hard life, it is a serious jolt to him mentally and socially. Proposals should not be routinely initiated at the lower level and vetted at the senior level only after due application of mind. The government also should not incur wasteful expenditure in contesting a litigation which should never have seen the light of the day. The man hours lost and wasted in the office pursuing a lost cause is but a national loss. Every frivolous proceeding calls for introspection by the government not only with regard to the man hours wasted, the wasteful expenditure incurred by the government and the social and monetary humiliation caused to the pensioner. The question of answerability 7 and accountability by those who initiate frivolous proposals must necessarily engage serious attention of the government. The Bihar State Litigation Policy published on 31.3.2011 contains a plethora of guidelines. They are not mere platitudes but are meant to be seriously studied and implemented. This is more onerous where the field is covered by well considered and repeated judicial precedents. The Court’s should not be burdened with frivolous litigation generated by irresponsibility. An overburdened Court’s time and energy should be left for more serious, new and important matters. The present case calls for serious introspection of the manner in which the power was exercised. The Court expects that the Principle Secretary, Department of Planning and Development shall adequately take notice of the anguish of the Court. The impugned order dated 5.4.2011 is set aside. The writ application is allowed with costs P. Kumar ( Navin Sinha, J.)