IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1269 of 2009 1. BIHAR STATE FOOD CORPORATION THROUGH MANAGING DIRECTOR PATNA 2. CHIEF AUDITOR STATE FOOD CORPORATION, PATNA 3. DISTRICT MANAGER STATE FOOD CORPORATION, MUZAFFARPUR, HEAD OFFICE AT SONE BHAWAN, 5TH FLOOR, BIRCHAND PATEL PATH, PATNA ---------Respondents/Appellants Versus RAM CHANDRA PRASAD THAKUR S/O LATE SHYAM NANDAN PRASAD THAKUR VILL-SHRUKAHI, P.S. KANTI, DIST. MUZAFFARPUR, AT PRESENT MOH-MANJHALIA, ADHARSH, LANE NO. 3, P.S. SADAR, DIST. MUZAFFARPUR --------Petitioner/Respondents With L.P.A. No. 1294 of 2009 1. STATE FOOD CORPORATION THROUGH THE MANAGING DIRECTOR, STATE FOOD CORPORATION, BIHAR, PATNA. 2. CHIEF OF ADMINISTRATION, BIHAR STATE FOOD & CIVIL SUPPLIES CORPORATION, PATNA (WRONGLY MENTIONED IN WRIT APPLICATION AS PRINCIPAL AMINISTRATOR, STATE FOOD CORPORATION, BIHAR, PATNA). 3.DISTRICT MANAGER, BIHAR STATE FOOD CORPORATION, MUZAFFARPUR, HEAD OFFICE AT SONE BHAWAN 5TH FLOOR, BIRCHAND PATEL PATH, PATNA. --------- Respondents-Appellants Versus RAM CHANDRA PRASAD THAKUR, SON OF LATE SHYAM NANDAN PRASAD THAKUR, RESIDENT OF VILLAGE- SHERUKAHI, P.S.-KANTI, DISTRICT- MUZAFFARPUR, AT PRESENT MOHALLA- 2 MANJHALIA, ADARDH, LANE NO. 3, P.S.- SADAR, DISTRICT-MUZAFFARPUR. ---------- Petitioner-Respondent ----------- For the Appellants:- Mr. R.S. Pradhan, Sr.Adv. For the Respondent: Mr. A.N. Rai, Advocate. ----------- Present : HON'BLE THE CHIEF JUSTICE HON'BLE MIHIR KUMAR JHA, J. As per Mihir Kumar Jha, J. 1. Heard Mr. Ramashankar Pradhan, learned senior counsel for the appellants and Mr. A.N. Rai, learned counsel for the Respondent. 2. Both the appeal are directed against the common order dated 9.9.2009 in C.W.J.C. No. 7933 of 2009 and C.W.J.C. No. 7873 of 2009, whereby and whereunder, forwarding letter to the memo of charge dated 27.4.2009 (Annexure-6 to the writ application) initiating a departmental proceeding in terms of Rule 43 B of the Bihar Pension Rules as contained in Annexure-6 and the memo of charge dated 15.4.2009 (Annexure-6/A) have been quashed by the learned Single Judge with a consequential direction for making payment of arrears of salary and pensionery benefits in the revised pay scale. 3. Mr. Pradhan while assailing the impugned order has submitted that the respondent-writ petitioner was 3 holding the post of Dy. Manager in the Bihar State Food and Civil Supplies Corporation (hereinafter referred to as the „corporation‟) and had retired from service of Corporation on 31.12.2008. He has pointed out that while the respondent-writ petitioner was in service he had been found to be responsible for causing loss of a sum of Rs.2,90,627=11 paise to corporation for which recovery had also been directed to be made and in fact Rs.2,79,084=82 paise had already been recovered before his retirement and only balance amount of Rs.11,542=29 paise was yet to be recovered from him and it is for this amount as also the interest on the principal sum of amount of loss sustained by the Corporation to the tune of Rs.2,90,627=00 out of total sum of Rs.4,65,150=67 paise being recoverable from the respondent-writ petitioner, that a proceeding under rule 43 B of the Bihar Pension Rules, hereinafter referred to as the Rules, had been initiated by the impugned order dated 15.4.2009, i.e, within four and half months of the retirement of the respondent-writ petitioner which was well permissible in terms of Rule 43 B of the Bihar Pension Rules and consequently the impugned order of learned single Judge 4 quashing the departmental proceeding itself at the inception cannot be sustained in law. 4. Attractive though the aforesaid submission may be, this Court on piercing the veil, would find that the appellants, in fact, have simply made a camaflouge of the provision of Rule 43 B of the Bihar Pension Rules. Rule 43 B of Bihar Pension Rules lays down that a departmental proceeding as with regard to grave misconduct and/or causing pecuniary loss to the Government (Corporation in this case) if not initiated in the service tenure of the employee, could still be drawn if the event is within the four years of the date of drawing of such proceeding. This aspect of the matter can be made clear if Rule 43 as a whole itself is taken into consideration which reads as follows:- “43 (a)Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (b)The State Government further reserve to themselves the right of 5 withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that- (a)such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re- employment; (i)shall not be instituted save with the sanction of the State Government; (ii)shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii)shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b)judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed.” 6 5. In the present case it is not in doubt that the principal amount of Rs.2,90,627=11 paise being the amount of loss sustained by Corporation was with regard to four different tenure of posting of the appellant writ petitioner, namely:- Place Amount of loss Bettiah 13,495=00 Palamau 36,896=75 Motihari 1,12,833=33 Giridih 1,27,402=03 Total- 2,90,627=11 6. This aspect also becomes clear from paragraphs 7 to 11 of the counter affidavit which reads as follows:- “7.That it is further submitted that out of amount of loss/misappropriation reported against the petitioner in the different districts bulk of the amount of loss related to the period 85-86 to 98-99 and 2001-02 and were recovered from the petitioner with his knowledge in July‟03, July‟06, August‟ 06 and onwards and the petitioner has never raised any objection earlier and admitted the said realization in his show-cause as well. These would be evident from the letters placed at Annexures-1, 2, 3 and 4 with the writ petition. 8.That as per report of District Manager, S.F.C. Bettiah (Annexure-1) a sum of Rs.86517-20 was realized from the petitioner on 7.7.03 which related to Giridih 7 on the basis of L.P.C. further a sum of Rs.35019-73 was also realized from his salary of September‟05 to August‟06. Further the petitioner was posted at Bettiah between 2002-03 to 2006-07 and loss amounting to Rs.13495-00 relating to Bettiah posting was also realized from him making a total of Rs.135031-93 as is evident from letter dated 1.12.08 (Annexure-1). 9.That as per letter dated 31.10.08 of District Manager, S.F.C. Palamau (Annexure-2) loss amounting to Rs.36896-75 related to period 85-86 to 86- 87 and 87-88 to 88-89 when the petitioner was posted there and this amount has already been realized from him much earlier. The petitioner has never objected to these realizations and this shows the petitioner has accepted its liability. 10.That the petitioner was posted in the district of Motihari as Assistant Manager between 89-90 to 97-98 and amount of loss reported against him for the period 91-92, 92-93, 95-96 and 97-98 amounted to Rs.91052-00 (Approximately) after verification and audit which has been realized from pending salary for the period from January‟96 to December‟97 as per letter dated 27.9.08 of District Manager, SFC, Motihari (Annexure-3). The remaining amount of the arrear salary has been released to the petitioner vide Cheque no.052573 dated 13.8.09 for Rs.80075-00 issued by the District Manager, SFC, Muzaffarpur. The petitioner in his letter dated 12.4.07 has also requested for adjusting the godown loss amount from his pending salary.(photo copy of letter dt.12.4.07 is annexed and marked as Annexure-A thereof). 11.That from the facts stated above it is clear that bulk of amount of loss reported against the petitioner after physical 8 verification and audit of accounts were realized earlier with the knowledge and consent of the petitioner and it is not open for him to challenge the same now. In fact, the petitioner has also accepted the recovery made and has basically raised the issue of non-payment of his arrear salary for the period Jan.‟ 96 to Dec.‟ 97 which has now been released. Moreover, further action would be taken after disposal of the departmental proceeding.” 7. It is not in dispute that the petitioner had retired on 31.12.2008 and his last place of posting was at Muzaffarpur where he was working from 15.12.2006. Prior to his posting at Muzaffarpur he was posted at Bettiah where loss on account of his misconduct is confined to Rs.13,495/- only. The period of posting of the respondent-writ petitioner at Palamau, Motihari and Giridih were much earlier to the expiry of period of four years from the date of drawing of proceeding, i.e, on or after 15.4.2005. In that view of the matter, no proceeding could have been drawn against the respondent-writ petitioner in terms of Rule 43 B which provides that a departmental proceeding, if not, instituted while a government servant was on duty shall be in respect of the event which took place not more than four years before 9 institution of such proceeding. This aspect of the matter infact stands well settled by the various judgments of the Apex Court and this Court and to that extent reliance placed by the learned Single Judge on the judgment of a Division Bench in L.P.A. No.446 of 1998 (Bihar State Electricity Board Vs. Sharda Pd. Sinha & Ors) disposed of on 21.5.2006 is quite apt. 8. Moreover the appellant-Corporation and its authorities itself in the impugned memo of charge have claimed that the misconduct causing loss of Rs.2,90,627=11 paise to the Corporation by the respondent writ petitioner was well within their knowledge, inasmuch as, a sum of Rs.2,79,084=82 paise had already been recovered prior to the date of retirement of respondent-writ petitioner, i.e, 31.12.2008 and therefore the events being much prior to four years in terms of Rule 43 B by itself was an embargo under Rule 43 B of the Bihar Pension Rules and the appellant- corporation and its authorities could not have taken recourse to Rule 43 B and that too primarily for recovery of interest on the aforementioned amount of Rs.2,90,627=11 paise. 10 9. Recovery of an amount of interest from a retired employee by the employer can be done only in terms of the service rule and/or in agreement between the parties. Such recovery of interest, in fact, would also involve the question of computation and the liability. We have not been shown any order of recovery passed in the service tenure of the respondent-writ petitioner wherein the appellant-Corporation and its authorities had held the respondent writ petitioner also liable for payment of interest. Thus, the question of payment of interest could not have been even otherwise gone into in a departmental proceeding, inasmuch as, such recovery of amount could have been made only by instituting a properly constituted money suit. Simply because the appellants would not/could not recover such amount of interest from writ petitioner by money suit, they cannot be allowed to take recourse of Rule 43 B which in fact proceeds on an assumption of admitted pecuniary loss. In this case the alleged pecuniary loss is to the time of Rs.2,90,627=11 and the interest thereon was never directed to be recovered in any order of the Corporation. Thus, we have no hesitation in holding that even 11 otherwise the proceeding under Rule 43 B against the respondent writ petitioner was wholly misconceived. As a matter of fact, the learned Single Judge has rightly held that the amount of Rs.2,79,084=82 paise recovered from the salary and emoluments payable to the respondent- writ petitioner would not be liable to be refunded to him. They would be treated as a fate-accompli. That would mean that the appellants have, in fact, been restrained only from realizing a sum of Rs.11,542=29 paise, which in the circumstances could not have been made subject matter of Rule 43 B of Bihar Pension Rules. 10. We also do not find any error in the direction given by the learned Single Judge for payment of admissible amount of salary and emoluments to the respondent-writ petitioner as may be payable to him for the actual services rendered till the date of his superannuation. It has also to be kept in mind that as with regard to specific prayer of the Respondent writ petitioner in C.W.J.C. No. 7933 of 2009 for a direction for payment of salary for the period January, 1996 to December, 1997 as also of his retirement benefits the appellants in their counter affidavit filed in the writ 12 petition had themselves admitted that the writ petitioner is entitled for payment of gratuity and leave encashment to the tune of Rs.3,29,320/- and Rs.67,861/- respectively i.e, total Rs. 3,89,181/- which was being retained by the Corporation on account of pendency of the departmental proceeding. Since the departmental proceeding stands quashed, the respondents are hereby directed to pay a sum of Rs.3,89,181/- within a period of three months, failing which it would entail the additional interest at the rate of 6% per annum from the date of its entitlement, i.e. from 1.1.2009 till its payment to the respondent-writ petitioner. 11. With the aforementioned observation/direction both the appeals are dismissed. There would be, however, no order as to costs. (Dipak Misra, C.J.) ( Mihir Kumar Jha, J.) Patna High Court Dated the 17th March 2010 A.F.R./Abhay Kumar