Letters Patent Appeal No.66 OF 2006 *********** Against the Judgment and Order dated 29th September, 2005 passed in C.W.J.C. No.2945 of 2003 -------- RAM NARAYAN RENU --------------(Appellant) Versus THE STATE OF BIHAR & ORS ----------------(Respondents) For the Appellant: Mr. Sujit Kumar Sinha ---------------------Advocate. For the Respondent: Mr. Vikash Kumar ----------J.C. to Advocate General. ----------- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. While the appellant was the Assistant Commissioner of Commercial Taxes, he passed an assessment order concerning an assessee. The audit pointed out that the order contained clerical mistakes. Inasmuch as the order, in fact, contained clerical mistakes, it became obligatory on the part of the appellant to remove the same. The power to do so has been specifically granted by the Act. At this stage the concerned assessee filed a review petition before the appellant. The review petition so filed did not highlight clerical mistakes. The same highlighted substantial mistakes in the original assessment order on facts and in law. The Act while bestowed power to remove clerical mistakes, did not bestow power to review. The appellant despite having no authority to review, reviewed his original order and while doing so removed the clerical mistakes in the original 2 assessment order, but at the same time interfered with the original order on facts and in law and thereby reduced the tax liability of the assessee. This action on the part of the appellant resulted in initiation of a disciplinary proceeding against him. The charges leveled against the appellant in the said disciplinary proceeding were enquired into by an Enquiry Officer, who submitted his report, and thereby opined that the charges do stand proved against the appellant. The Enquiry report was accepted by the disciplinary authority. 2. When the charge sheet was issued against the appellant he was in employment. The inquiry, however, was concluded after the appellant had superannuated. The service conditions of the appellant did not permit a disciplinary proceeding to be concluded after his superannuation. However, the appellant was covered by the provisions contained in the Bihar Pension Rules, 1950. In terms whereof, the appellant was entitled to receive pension upon his superannuation. In terms of the said Rules, pension included gratuity. After superannuation of the appellant, provisional pension and provisional gratuity payable to the appellant under the said Rules had been assessed and 90% thereof was released in favour of the appellant. The appellant accordingly received 90% of his gratuity and continued to receive monthly pension to the extent of 90% of his entitlement. 3. Rule 43(b) of the said Rules authorized the State Government to withhold a part or full of the pension payable to 3 an employee under the said Rules, provided it is held that the employee concerned misconducted himself or has caused loss to the State. The said Rule in no uncertain terms provides that a disciplinary proceeding initiated before superannuation of an employee can be concluded by passing an order under the said Rule. 4. Accordingly, upon acceptance of the enquiry report, the disciplinary authority concluded the said disciplinary proceeding against the appellant under Rule 43(b) of the said Rules by passing an order dated 26th February, 2002. In terms thereof, the appellant became disentitled to his entire gratuity and also 25% of his due pension. The order dated 26th February, 2002, made it clear that it has been found that by reason of exercise of jurisdiction not vested in the appellant, the appellant has not only misconducted himself, but at the same time also caused loss to the extent of about 11 lacs to the State. These findings were recorded to justify user of power under Rule 43(b) of the said Rules. Once the said order dated 26th February, 2002 was passed, the matter stood concluded. 5. However, despite conclusion of the matter thus by the said order dated 26th February, 2002, a further order was passed on 1st April, 2004, whereby and under while repeating withholding of the entire gratuity and 25% of the pension of the appellant it was held out that the State has purportedly suffered a loss to the tune of about 19 lacs by reason of the said actions of 4 the appellant. The said order dated 1st April, 2004 further held out that steps would be taken for recovery of the loss. 6. In the meantime, on 27th November, 2002, an order was passed requesting the appellant to refund the gratuity amount, which had been paid already to the appellant. 7. These actions on the part of the State were assailed in a writ petition which has been dismissed by the Judgment and Order under appeal. Learned counsel for the appellant submitted that Rule 43(b) of the said Rules authorized the State to exercise power thereunder only in case of proven guilt of misconduct or in case loss caused to the State stands proved and accordingly once the State has exercised power under the said Rule and thereby has taken a decision to stop a part of the pension payable to the appellant, the State cannot take steps to recover the loss sustained by the State as had been held out in the order dated 1st April, 2004. 8. Right to recover money lost to the plaintiff by reason of an action or inaction on the part of the defendant is a common law right and accordingly if the State has sustained any loss for any action or inaction on the part of the appellant, the State is entitled to take such recourse to law as it may be advised for the purpose of recovery of the same. Unless, there is an expressed bar for exercise of such common law right or withdrawal of such right by an expressed provision of law, or unless the same can be gathered by necessary implication, it cannot be inferred that if the 5 State has a right of withholding a part of the pension payable to the appellant for an action or inaction on his part causing loss to the State, the State cannot recover money due to the State for the loss sustained by it for the self same action or inaction on the part of the appellant. Rule 43(b) does not impose any such bar, nor does it withdraw any such common law right of the State. 9. Rule 43(b) entails forfeiture of full pension or part thereof in the event there is proven misconduct or proven loss caused to the State. In other words, Section 43(b) entails forfeiture of a part or full pension of an employee when it is established that the employee has not been able to conduct himself in the manner he was required to conduct or when it is established that any action or inaction on his part has caused loss to the State. There is no direction in the said Rule that withholding should be commensurate with the loss sustained. 10. However, once a disciplinary proceeding, which stands converted into a proceeding under Rule 43(b), is concluded, the matter cannot be reopened for the said Rules do not provide any power to that effect. A look at the order dated 26th February, 2002 would amply demonstrate that the disciplinary proceeding initiated against the appellant during the time he was in service and subsequently converted into a proceeding under Rule 43(b) upon his superannuation, was finally concluded by the order dated 26th February, 2002 and therefore nothing could be added 6 to or subtracted therefrom by any subsequent action as was purported to be done by the order dated 1st April, 2004. 11. The learned counsel for the appellant did not urge before us that the order dated 26th February, 2002 would have only prospective effect and accordingly cannot have any implication in relation to payments already made to the appellant on account of gratuity and pension. 12. In those circumstances and in particular there being nothing to suggest that the guilt of misconduct has not been proved against the appellant, we see no reason to interfere with the order dated 26th February, 2002 and accordingly uphold the judgment and order under appeal to that extent. 13. However, having regard to the conclusion that the proceedings stood finally concluded by the order dated 26th February, 2002, we are unable to uphold the judgment and order under appeal by which the order dated 1st April, 2004 has been upheld and accordingly, allow the appeal to that extent and set aside that part of the judgment and order under appeal and at the same time allow the writ petition by quashing the Order dated 1st April, 2004. There shall be no order as to costs. (Barin Ghosh, J.) (C.M. Prasad, J.) Patna High Court, The 21st August, 2008. Mkr/NAFR 7