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, 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 ============================================= 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 ============================================= 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 2 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 3 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 4 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 6 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 7 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 8 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 9 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 10 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 11 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, 12 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. 13 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. PANKAJ KUMAR/- (Kishore K. Mandal, J)