CIVIL WRIT JURISDICTION CASE No.431 of 2003 with CIVIL WRIT JURISDICTION CASE No.4768 of 2003 ------- In the matter of applications under Article 226 of the Constitution of India. ------- Gurusharan Prasad Singh son of Chamru Mahto, resident of village- Ramdih, P.S. Noorsarai, District- Nalanda ------ Petitioner Versus 1.The State of Bihar, through the Chief Secretary,Govt. of Bihar,Patna 2.The Commissioner-cum-Secretary, Department of Mines and Geology, Govt. of Bihar, New Secretariat, Vikas Bhawan, Patna 3.The Special Secretary, Department of Mines and Geology, Govt. of Bihar, New Secretariat, Vikas Bhawan, Patna 4.The Deputy Director(Mines), Bhagalpur Circle, Bhagalpur 5.The Director, Provident Fund, Bihar, Patna 6.The Accountant General(Bihar), Patna, Veer Kunwar Singh Marg, Patna ------ Respondents ------- For the Petitioner : Mr.Narendra Prasad,Sr.Adv. with M/s Akashdeep and Shyameshwar Kr.Singh,Adv. For the State : M/s V.M.K.Sinha,Spl.P.P.Mines and S.P.Tripathi,Adv. For the Accountant General : Mr.L.P.K.Rajgrihar,Addl.S.C. ------- P R E S E N T THE HON'BLE MR.JUSTICE JAYANANDAN SINGH J.N.Singh,J: Having not received his retiral benefits, upon his superannuation with effect from 31.1.2000, while working as Incharge Deputy Director of Mines under the respondents in the pay scale of District Mining Officer, in spite of having submitted his pension papers and representations, petitioner filed C.W.J.C.No.431 of 2003 for a direction for payment of his dues, only to be surprised by the counter affidavit of the respondents, enclosing the order contained in Memo no.603 dated 27.3.2002 reducing 25% of his pension as punishment upon conclusion of a departmental proceeding, necessitating filing of C.W.J.C.No.4768 of 2003 challenging the memo by annexing the same as Annexure-12 to the writ application. - 2 - During the pendency of the second writ application, respondents also issued orders, as contained in memo no.2398 dated 26.11.2004 reverting back petitioner to the post of Assistant Mining Officer in purported exercise of powers under Rule 49(1) of Service Rules [Bihar Civil Services (Classification, Control & Appeal) Rules], and consequential fixation of pay scale and pension of the petitioner by the accountant general in proforma dated 11.1.2005 and 24.2.2005, which have been brought on record by the petitioner as Annexures-13, 14 and 14/1 through I.A. No.4308 of 2007 in C.W.J.C.No.4768 of 2003, with a prayer to amend the reliefs sought for in the writ application with liberty to challenge the same also. 2. As the orders, as contained in Annexures-13, 14 and 14/1 are sequel to punishment inflicted upon the petitioner in the departmental proceeding and in continuity of the main impugned order contained in Annexure-12, I.A.No.4308 of 2007 is allowed. Petitioner is granted liberty to challenge Annexure-13 as well as 14 and 14/1 and writ application is held to be modified to the extent prayed for by the petitioner in the I.A. 3. Facts, emerging from the records of C.W.J.C. No.4768 of 2003, show that upon his appointment as Assistant Mining Officer by order dated 16.10.1973 and having joined on 16.11.1973 at Begusarai under the respondents, petitioner soon came under cloud due to some complaint against him in the matter of having fixed lower - 3 - royalty for manufacturing of bricks by some brick kiln owners of the area during the period 1973-75 allegedly causing heavy loss to Government exchequer submitted in Cabinet (Vigilance) Department leading to a preliminary enquiry. After the said enquiry, petitioner was asked for explanation which he submitted on 25.4.1978. Thereafter, matter remained at rest for a number of years during which period petitioner was allowed to cross efficiency bar with effect from 16.11.1980 and was given first time bound promotion, after Vigilance clearance, with effect from 1.8.1983. By dint of his length of service and seniority, petitioner also became eligible for regular promotion on the post of District Mining Officer as on 1.2.1988. There was no reason for the petitioner not to get it as he did not receive any further communication in the matter for ten years after submission of his explanation in 1978, which gave rise to presumption that the matter stood closed resulting into his time bound promotion in 1983 after Vigilance clearance. However, it was really surprising to the petitioner to receive chargesheet along with memo dated 22.6.1988, annexed as Annexure-1 to the writ application, in connection with the same allegation of fixing of lower royalty during the period 1973-75 causing illegal pecuniary gain to brick manufacturers and causing financial loss to the Government Exchequer. The chargesheet referred to as many as nine documentary evidence including report of one Sub- - 4 - Inspector of Cabinet (Vigilance) Department as documentary evidence relied upon in framing of charge and name of the said Sub-Inspector as witness in support of the same. 4. Petitioner filed his reply vide Annexure-2 to the writ application stating therein, besides his detailed explanation to the charges, that except for the documentary evidence mentioned at serial no.9 in the chargesheet, he has not received any other documentary evidence referred to and relied upon in the chargesheet nor has he received the report and statement of said Sub- Inspector. In his reply, petitioner stated that on the basis of his memory he was replying to the charges but the documents mentioned in the chargesheet should be supplied to him to enable him to submit his reply effectively. In his reply petitioner enclosed several documents which were available to him and cited names of the witnesses whom he wanted to be examined in the departmental proceeding. However, without acceding to the request of the petitioner, enquiry proceeded and the enquiry officer on conclusion of the enquiry submitted his report through his letter dated 18.6.1990 to the higher authorities, as contained in Annexure-3 to the writ application. The letter of the enquiry officer, who was Deputy Director of Mines under the respondents, in very uncertain terms mentioned that inspite of his request, the relevant records were not made available by - 5 - the Department in the enquiry causing difficulty in coming to a just conclusion in the enquiry. However, on the basis of the materials available in the enquiry and as produced by the petitioner, he had proceeded with the enquiry and after concluding the same had submitted his report. In his report, which is enclosure to the said letter dated 18.6.1990 and part of Annexure-3 to the writ application, the enquiry officer dealt with the charges one by one and, considering the materials on record and the explanations of the petitioner, found all the seven charges against the petitioner as not proved and in respect of each and every charge he recommended for exonerating the petitioner. 5. After submission of the report by the enquiry officer exonerating the petitioner, matter again remained at rest for a number of years. Hence, petitioner was compelled to move this Court through C.W.J.C.No.10754 of 1995 with a prayer for direction to the respondents to promote the petitioner as District Mining Officer on regular basis. In the writ application he also prayed that the persons junior to the petitioner had been promoted as Deputy Director of Mines and therefore, his case should also be considered for the same. Respondents appeared in the writ matter and filed their counter affidavit taking the stand that some departmental proceeding was pending against petitioner. This Court noticed the pendency of the departmental proceeding for - 6 - over eight years from the date of issue of chargesheet to the petitioner and also noticed that in the meanwhile juniors to the petitioner have been promoted to the post of District Mining Officer as well as to the post of Deputy Director of Mines. Therefore, while disposing of the writ application by order dated 2.9.1996, as contained in Annexure-4 to the writ application, this Court directed the respondents to finalize departmental proceeding within one month from the date of passing of the order, failing which petitioner would be held to be entitled for posting/promotion as District Mining Officer and consequently as Incharge Deputy Director of Mines with effect from the date when his aforementioned juniors were promoted and the respondents were directed to issue order/notification granting due promotion to the petitioner within one week thereafter, if necessary, by reverting the junior most person. 6. Not surprising, the order was not complied with compelling the petitioner to file MJC No.2531 of 1996 for initiation of contempt proceeding against respondents. Being faced with the contempt, respondents issued orders, as contained in Annexure-5 and 5/1 to the writ application dated 15.10.1996 and 27.11.1996 respectively, promoting the petitioner provisionally on the post of District Mining Officer and posting him on the post of Incharge deputy Director, Mines at Bhagalpur in the pay scale of District Mining Officer. The order of promotion - 7 - of the petitioner as District Mining Officer was made subject to final outcome of the departmental proceeding. In the light of the order issued by the respondents, contempt application of the petitioner was disposed of by order dated 28.1.1999, as contained in Annexure-4/1 of the writ application giving liberty to the petitioner to stake his claim for his regular promotion to the post of District Mining Officer as well as to the higher post of Deputy Director, Mines. Petitioner has annexed as Annexure-6 a copy of an application of the respondents filed in the earlier writ application, namely, C.W.J.C.No.10754 of 1995, on 10.10.1996 for extension of time fixed by this Court by the said order dated 2.9.1996 passed in the writ matter by three months, with an averment that during this period after locating the records the respondents shall be able to conclude all the departmental proceedings and pass final order in this regard. 7. After disposal of MJC application, respondents issued a letter and a reminder dated 5.4.1999, annexed as Annexure-7 to the writ application, requesting petitioner to submit a copy of his reply to the show cause filed in the proceeding along with evidence. Petitioner submitted his reply to the same vide his letter dated 10.4.1999, as contained in Annexure-8 to the writ application, seriously objecting to continuity of the departmental proceeding inspite of the aforesaid orders of this Court - 8 - dated 2.9.1996. Along with his said objection, petitioner enclosed the aforesaid orders of this Court. However, it appears that the disciplinary authority decided to proceed with the matter and issued second show cause notice vide his letter dated 15.10.1999, as contained in Annexure-9 to the writ application, enclosing therewith his reasons for disagreement with the findings of the enquiry officer in respect of the charges. In the second show cause notice, the disciplinary authority also asked petitioner to show cause to his proposed punishment of reversion of the petitioner to the post of Assistant Mining Officer. On receipt of the said second show cause notice, petitioner filed his detailed reply vide Annexure-10 dated 12.11.1999. In his detailed reply, while dealing with each and every charges levelled against him and discussing in detail the justification for acceptance of findings of the enquiry officer, he also annexed ten documents for consideration of the disciplinary authority for coming to the conclusion on merits of the charges. Besides his submission on merits, petitioner also objected to issue of second show cause notice to him in the proceeding at the fag end of his service career and after nine years of submission of chargesheet by the enquiry officer and after almost 22 years of the alleged period of incident. 8. Matter remained pending with the disciplinary authority and the petitioner superannuated with effect - 9 - from 31.1.2000 from the service of the respondents as working in the capacity of Incharge Deputy Director, Mines in the substantive pay scale of District Mining Officer. Upon his retirement, petitioner submitted his pension papers to the respondents. However, since the pension etc. of the petitioner was not finalized, petitioner filed C.W.J.C.No.431 of 2003 before this Court for a direction to the respondents for the purpose. In the said writ application, a counter affidavit was filed by the respondents bringing on record an order passed by the respondents contained in Memo No.603 dated 27.3.2002 reducing pension of the petitioner to the extent of 25% in exercise of powers of the respondents, as contained in Rule 43 of the Pension Rules after due concurrence from the B.P.S.C. under the provisions of Rule 43 proviso (c) of the Pension Rules. On receipt of the said memo, for the first time, through the counter affidavit of the respondents filed in the said writ matter, petitioner filed C.W.J.C.No.4768 of 2003, bringing the same on record as Annexure-12 to the writ application and challenged the same. During the pendency of the said writ application, respondents came out with another order as contained in Memo No.2398 dated 26.11.2004 imposing punishment, on proved charges in terms of Rule 49(1) of the Service Rules, demoting the petitioner on the post of Assistant Mining Officer mentioning that as the petitioner had retired, necessary communication for - 10 - correction of pension and for recovery of excess paid was being sent to the Accountant General. Consequently, Accountant General issued revised calculation of pay scale of the petitioner as well as of his revised pension in proforma issued on 11.1.2005 and 24.2.2005 respectively. Since these developments occurred in the case of the petitioner during the pendency of the said writ application, petitioner has filed aforesaid I.A.No.4308 of 2007 enclosing the documents as Annexures- 13, 14 and 14/1, with a prayer for modification of the relief portion of the main writ application giving liberty to the petitioner to challenge the same which stands allowed as aforesaid. In the I.A., petitioner has also cited one example of one J.K.Chaudhary, junior to the petitioner in whose case in identical circumstances, on account of charge being 17-18 years old, the proceeding was dropped against said Sri Chaudhary and he was exonerated from all the charges. The order exonerating said Sri Chaudhary and consequent order of his promotion on the post of District Mining Officer with consequential benefits of pay etc. has been brought on record by the petitioner as Annexure-15 and 15/1 to the I.A. 9. In the backdrop of the facts emerging from the records of the case, learned counsel for the petitioner made following submissions: (i) He submitted that inordinate delay in - 11 - initiating the proceeding against the petitioner and further inordinate and unexplained delay in concluding the same has prejudiced the petitioner as throughout his service career petitioner had to remain under agony and stress of departmental proceeding being pending against him and therefore, merely on account of delay caused in the disciplinary proceeding by keeping the same pending throughout the service career of the petitioner and till his retirement, without any explanation or justifiable reason for the same, the same is fit to be quashed. In support of this submission, learned counsel for the petitioner relied upon judgments of the Supreme Court passed in the cases of State of M.P. Vs. Bani Singh, reported in AIR 1990 S.C.1308; State of A.P. Vs. N.Radhakishan, reported in (1998)4 S.C.C.154 and P.V.Mahadevan Vs. MD T.N.Housing Board, reported in (2005)6 S.C.C.636. (ii) He further submitted that at each stage of proceeding there has been flagrant violation of principles of natural justice inasmuch as the documents mentioned in the enquiry report were never supplied to the petitioner or were made accessible to him for perusal, as admitted by the enquiry officer himself in his forwarding letter along with enquiry report. He further submitted that detailed reply submitted by him in response to the second show cause was not at all considered by the disciplinary authority nor documents - 12 - enclosed with the said reply was even noticed by him while imposing punishment upon petitioner of reducing his pension by 25% and later on by demoting him to the post of Assistant Mining Officer. He further submitted that after his superannuation and before passing of the order, as contained in Annexures-12 and 13, no notice was issued to the petitioner in that respect. In support of his contention with regard to necessity of supply of documents and affording effective opportunity to a delinquent in the enquiry, learned counsel for the petitioner has relied upon judgments of the Supreme Court in the case of Kashinath Dikshita Vs. Union of India, reported in AIR 1986 S.C.2118 and State of U.P. Vs. Shatrughan Lal, reported in AIR 1998 S.C.3038. He further submitted that in the enquiry no records were produced by the Department to substantiate the charges as admitted by the enquiry officer himself, and therefore, it was not open to the disciplinary authority to come to a conclusion of guilt against the petitioner while disagreeing with the findings of the enquiry officer without any materials available in the enquiry proceeding for the same. In support of this contention, learned counsel for the petitioner relied upon a judgment of the Supreme Court in the case of Kuldeep Singh Vs. The commissioner of Police, reported in AIR 1999 S.C.677 and a judgment of this Court in the case of Kumar Upendra Singh Parimar Vs. B.S.Co-operative Limited, reported in - 13 - 2000(3) PLJR 10. (iii) Learned counsel for the petitioner next contended that the disciplinary authority erred in law while giving composite notice to the petitioner by way of second show cause, as contained in Annexure-9 to this writ application, which is not permissible in view of settled proposition of law by judicial pronouncements. In support of this contention, learned counsel for the petitioner relied upon two judgments of this Court in the case of Ranjan Kumar Vs. Nalanda Gramin Bank, reported in 2003(1) PLJR 722 and Saroj Kumari Vs. State, reported in 2004(1) PLJR 31(DB) and a celebrated judgment of Supreme Court in the case of MD, ECIL Vs. B.Karunakar, reported in AIR 1994 S.C.1074. (iv) Learned counsel for the petitioner further submitted that as the relationship of master and servant gets severed with his employer upon superannuation of the employee, no order as contained in Annexure-13 demoting petitioner could be passed against him after his superannuation. The only punishment which the authorities could pass against petitioner after his superannuation was of reducing or withholding pension of the petitioner in whole or in part, for a period or permanently, after conclusion of the enquiry and upon finding of guilt of gross misconduct against petitioner. No other punishment as envisaged under the Service Rules of the State Government could be imposed upon petitioner by the - 14 - respondents after his superannuation. In support of this contention, learned counsel for the petitioner relied upon a number of judgments of this Court in the case of Mohini Bala Verma Vs. State, reported in 1998(2) PLJR 135; Bajrang Deo Narain Sinha Vs. State, reported in 1999(3) PLJR 949(DB), Sadanand Ram Vs. State of Bihar, reported in 1999(1) PLJR 69 and Shambhu Saran Vs. State of Bihar, reported in 2000(1) PLJR 665(FB). (v) Learned counsel for the petitioner further submitted that the entire proceeding and punishment imposed on the petitioner was full of malafide and bias on the part of official respondents and in violation of the rights of equity of the petitioner, inasmuch as time to time after number of years, respondents sought to rake up the matter against petitioner and kept the proceeding pending against him throughout his service career and imposed punishment upon him for an incident and allegation of a period almost 27 years back, whereas in similar and identical circumstances, respondents have dropped the proceeding against other officers of the Department only on the ground of delay in holding the proceeding, and on the ground of stale accusation and charges. (vi) Learned counsel for the petitioner lastly contended that the impugned order (Annexure-12) was not in conformity with the requirements of Rule 43B of the Pension Rules, without any notice to the proposed - 15 - punishment of reducing pension, and therefore, the same has to be held as ultra vires the powers of the respondents and in violation of principles of natural justice, and fit to be quashed. 10. Respondents have filed counter affidavit in the case as well as reply also to the I.A. of the petitioner. In the counter affidavit, respondents have given chronology of the facts and events in respect of the allegations, the charges and proceedings against petitioner. They have claimed that the proceeding has been in accordance with law and as the promotions of the petitioner by Annexures-5 and 5/1 were made subject to the departmental proceeding, they were legally justified in reverting back petitioner, even after his superannuation, upon finding of guilt by the disciplinary authority against him, as a consequence of conclusion of departmental proceeding. However, counter affidavit as well as reply of the respondents to the I.A. of the petitioner is conspicuously silent about the charges of violation of principles of natural justice leveled by the petitioner in his pleadings as mentioned hereinabove and there is conspicuous absence of any explanation whatsoever with regard to the delay caused in the proceeding against petitioner covering almost his entire service career and remaining pending till his superannuation, in spite of orders of this Court passed on 2.9.1996 in the earlier writ application of the - 16 - petitioner. They have only justified their action claiming that the act of the petitioner as alleged in the chargesheet had caused heavy pecuniary loss to the Government Exchequer. They have produced certain documents with the counter affidavit connected with the proceedings as well as concurrence letter of the B.P.S.C. which is dated 11.2.2002. Many of the documents annexed by the respondents in the counter affidavit have already been annexed by the petitioner in the writ application and in his I.A. as noticed above. 11. Learned counsel appearing for the respondents authorities of the Mines Department more or less reiterated the stand of the respondents taken in the counter affidavit and reply to the I.A. of the petitioner as noticed above. However, in respect of categorical submissions made by learned counsel for the petitioner, he could not controvert any of them in so many words, except that he broadly submitted that the act of the petitioner had caused pecuniary loss to the Government Exchequer and therefore, punishment imposed against him was perfectly justified and legal. He also submitted that the delay caused in the proceeding was due to procedural requirements. He further submitted that as the petitioner superannuated from service prior to final conclusion of the departmental proceeding, punishment had to be imposed upon him in exercise of powers under rule 43B of the Pension Rules and, as the promotions granted to him were - 17 - subject to final outcome of the proceeding in which petitioner was ultimately found guilty, the same had also to be cancelled, and therefore, he was rightly reverted back to the post of Assistant Mining Officer. However, he was unable to point out any fallacy or infirmity in the submissions of learned counsel for the petitioner, by drawing the attention of this Court to any particular provision of the Pension Rules or by referring to any judicial precedents against the submissions made by learned counsel for the petitioner on legal aspects of the matter. 12. In view of categorical submissions made by learned counsel for the petitioner, it would be appropriate for this Court to examine the same one by one and independently. Taking the challenge of the petitioner to Annexure-12, from the facts it is established that the petitioner was served with second show cause notice prior to his superannuation to which he filed a detailed reply also while he was in service. However, while the matter was pending with the disciplinary authority, petitioner superannuated and therefore it was not open to the respondents to pass orders for punishment under the Service Rules of the Government. Accordingly, treating the proceeding as continuing, the respondents passed orders vide Annexure-12 reducing pension of the petitioner by 25% in purported exercise of powers under Rule 43B of the Pension Rules. But there is nothing on - 18 - record to show, nor there is any pleading, that any