IN THE HIGH COURT OF JUDICATURE AT PATNA (CIVIL WRIT JURISDICTION) C.W.J.C. No.11667 OF 2005 DHIRENDRA NATH MAJEE---------------------------------(Petitioner) Versus THE STATE OF BIHAR & ORS---------------------------(Respondents) For The Petitioner : BINOD KUMAR SINGH For The Respondent : (SC3) P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha, J. This writ application has been filed for quashing an order dated 17.8.2005 whereby and whereunder 10% pension of the petitioner has been permanently withheld on the ground that he had continued unauthorizedly in service from 1.6.1996 to 2.3.1998 even when he had reached the age of superannuation on 31.5.1996. Sri Vinod Kumar Singh, learned Counsel appearing on behalf of the petitioner while assailing the impugned order has submitted that such recourse to the power of the Government of withholding 10% of pension of the petitioner in purported exercise of Rule 139 of Bihar Pension Rules was wholly arbitrary and illegal inasmuch as the service record of the petitioner was without any blemish and there was no proof of misconduct either during period he was to remain in service or even in the extended period in which he 2 continued in service i.e. from 1.6.96 to 2.3.1998. It was also submitted that the show-cause notice which was given to the petitioner did not specify to the proposed action of reducing the pension and as such the resultant impugned order seeking to permanently withholding 10% of his pension was not sustainable. On the other hand, Sri Shyam Kishore Sharma, learned Government Advocate No.5 in the light of the counter affidavit filed by the respondents had submitted that the petitioner was an officer in the rank of Chief Engineer whose date of birth was 8.5.1938 and as such, he was to superannuate on 31.5.1996 but he having suppressed his date of birth and by giving misleading information to the Government, continued in service till 2.3.1998 and as such, he was liable for being punished for such misrepresentation and misconduct of continuing in Government service after completing his age of superannuation. It has to be noted that when this case was being heard, the Counsel for the petitioner had taken a plea that it was true that the petitioner had completed the age of superannuation which at that point of time was 58 years, on 31.5.1996 but, then he had been directed to continue in service even after reaching his age of superannuation. This Court having recorded such an oral stand of the Counsel for the petitioner and having found no supporting material in the writ application to justify the said action on the 3 part of the petitioner had directed the petitioner to file a supplementary affidavit. It is the case of the petitioner that he was appointed as an Assistant Engineer in the month of January, 1957 on the recommendation of the Bihar Public Service Commission and his date of birth as recorded in the matriculation certificate is 8.5.1938. The petitioner however claims that the information of his date of birth being 8.5.1938 was brought to his notice only by the respondents through a letter dated 19.2.1998 whereupon the petitioner had stopped working on a post of Regional Chief Engineer in the Public Health Engineering Department at Bhagalpur w.e.f. 2.3.1998 and as such, he had demitted the office on 2.3.1998. On the other hand, the respondents in their counter affidavit have stated that the petitioner being a responsible senior officer being well aware of his date of birth as also his date of superannuation was required to superannuate on completing 58 years of age w.e.f. 31.5.1996 inasmuch as the office of the Accountant General had issued the pay slip dated 20.2.1997 vide Annexure-F to the counter affidavit showing him to have retired w.e.f. 31.5.1996. But the petitioner deliberately and fraudulently continued in service till 2.3.1998 and in fact eloped from his place of posting at Bhagalpur when he was asked to produce his matriculation certificate in support of his date of birth. In this context, the respondents have 4 brought on record the application filed by the petitioner dated 13.3.1996 while he was holding the post of Technical Secretary in the Headquarter of the Public Health Engineering Department at Patna which would go to show that in such a representation, the petitioner had not only mentioned that he was senior most Superintending Engineer who was still having a service of three years approximately but had claimed that his date of birth was 8.2.1943. On the strength of this application submitted by the petitioner claiming his promotion on the post of Chief Engineer, it was submitted on behalf of the State that the petitioner had made a definite misrepresentation for claiming his promotion on the post of Chief Engineer and for remaining in service till March, 2001. It has thus been contended that it was petitioner who continued in service beyond the age of superannuation on misrepresentation and as such, the same by itself amounted to a grave misconduct and therefore, the Government had proceeded against him in terms of Rule 139 of the Bihar Pension Rules by issuing a show-cause notice dated 31.12.2003 and passing the impugned order after considering his show-cause reply dated 13.1.2004 wherein according to the respondents, he had not denied the basic allegation that his date of birth was 8.5.1938 and yet he continued in service by seeking to make a misrepresentation that his date of birth was 8.3.1943. Counsel for the petitioner however had 5 vehemently submitted that the petitioner could not be blamed for continuing in service beyond the age of superannuation inasmuch as the relevant orders for his being posted as Chief Engineer after obtaining his alleged age of superannuation was issued by the competent authority of the State Government and that he had continued to his official duty on the post of Chief Engineer, PHED, Bhagalpur having impression that he had been granted extension of service. When such a plea was taken orally by the Counsel for the petitioner, without there being any pleading to this effect in the writ application, this Court having recorded this aforementioned submissions in the order dated 11.7.2007 had directed the petitioner to file a supplementary affidavit enclosing the documents on the basis of which it had been orally submitted that he had been directed to continue in service even after reaching his date of superannuation. In compliance of the said order dated 11.7.2007, the petitioner has also filed supplementary affidavit and though he has enclosed the charge reported dated 6.2.1996 and a letter dated 17.4.1996 but none of them are proof of the fact that the Government had either extended his service or was even aware that the petitioner had completed his tenure of service and had reached his age of superannuation on 31.5.1996. This Court is rather amazed that the stand of the petitioner inasmuch as it is an admitted position that the petitioner was a Class-1 officer of 6 Bihar Engineering Service and had been holding the post of Chief Engineer which post was given to him on in-charge basis by posting him as Chief Engineer, PHED, Bhagalpur on his application filed on 13.3.1996. It has to be remembered that on 13.3.1996, the petitioner was continuing as a Technical Secretary, a post in the rank of Superintending Engineer in the Headquarters, PHED at Patna and it was he who had represented before the Government that he was senior most Superintending Engineer and as such, he should be considered for being promoted on the vacant post of Chief Engineer or at least should be made In-charge of the post of Chief Engineer as his date of birth was 8.3.1943 and he was still left with service of three years. The wordings of his representation dated 8.3.1996 in this regard are very significant and are quoted hereinbelow:- ^^ izs"kd] Jh Mh0,u0 ekth] izkoSf/kd lfpo] yksd LokLF; vfHk;a=.k foHkkx] iz{ks=] iVukA lsok esa] lfpo] yksd Lok0 vfHk0 foHkkx] fcgkj] iVukA eq[; vfHk;ark ds in ij izksUufr ds laca/k esaA egksn;] fuosnu gS fd foHkkx esa ,d eq[; vfHk;ark dk in fjDr gSA eSa foHkkx dk ojh;re v/kh{k.k vfHk;ark gwWA esjk lsok vHkh yxHkx rhu o"kZ gSA esjk tUe frfFk 8-2-1943 gSA vr% vuqjks/k gS fd esjh izksUufr mDr in ij fn;k tk;sA ;fn rc rd foyEc gks rc rd dk;Zdkjh izHkkj nsus dh d`ik dh tk;sA fo'oklHkktu g0@& Mh0 ,u0 ekth izkoSf|d lfpo] yks0 Lok0 vfHk0 foHkkx] iz{ks= iVukA 7 izfrfyfi & la;qDr lfpo] yksd LokLF; vfHk;a=.k foHkkx] fcgkj] iVuk dks lwpukFkZ ,oa vko';d dkjZokbZ gsrw izsf"krA ¼Mh0 ,u0 ekth½ 13-3-1996 {ks=h; eq[; vfHk;ark ds izks0 l0** It is very significant to note here that the petitioner has not denied the contents of the aforementioned representation dated 13.3.1996 which is Annexure-C to the counter affidavit and therefore it can be safely said that it was the petitioner who had made a fraudulent misrepresentation as with regard to his date of birth by seeking to conceal his age by five years inasmuch as his date of birth was 8.5.1938 whereas he had changed the same to 8.2.1943 in his aforementioned representation dated 13.3.1996. A question would thus arrive whether an officer in the rank of Chief Engineer when he seeks to make a misrepresentation with regard to his age for the purposes of continuing in service and earning promotion, can it be said that he had not committed a misconduct so as to visit with penal consequences under Bihar Pension Rules ? In the considered opinion of this Court, such a deliberate and fraudulent misrepresentation on the part of the petitioner amounts to gross misconduct. It has to be noted that service book regarding date of birth and other details is maintained only in case of non-gazetted employees and for gazetted employee it is either his civil list or his service records maintained in the office of Accountant General which also contains the detail of his date of birth. The 8 petitioner, an engineering graduate having been recommended by the Bihar Public Service Commission for his appointment on the post of Assistant Engineer in the year 1957 could not have in fact taken a plea his application dated 13.03.1996 that his date of birth was 8.2.1943 which would make him an Assistant Engineer at the age of less than 14 years. In that view of the matter, this Court has no hesitation in reaching to a conclusion that the petitioner had concealed his age both for the purposes of earning promotion and as also for remaining in service beyond his age of superannuation. The plea of the petitioner that he was not aware of his date of birth is to be only noted for its being rejected inasmuch as even the pay slip which was issued by the Accountant General authorizing him to draw his pay from the Government Treasury dated 20.2.1997 had clearly shown him to have retired w.e.f. 31.5.1996. Thus, in presence of Annexure-F to the counter affidavit, correct notes whereof has again not been disputed in any manner for filing any rejoinder affidavit, this Court can safely reach to a conclusion that the petitioner even when he was made aware that he had attained the age of superannuation on 31.5.1996 had yet deliberately continued with his fraudulent intention to remain in service even after reaching his age of superannuation. This Court is also not impressed with the submission of the learned Counsel of the petitioner that the petitioner had not drawn any salary for the 9 period 1.6.1996 onwards even when he had worked on the post of Chief Engineer till 2.3.1998. As a matter of fact, the petitioner could not have drawn his salary because the officer of the Accountant General had not issued the pay slip by treating him to have retired w.e.f. 31.5.1996. Such plea of benevolence on the post of the petitioner of working without salary in fact gets exposed in the show-cause reply filed by him as contained in Annexure-15 to the writ application where it has been said that “it is surprising that if the payment of salary for the period of over stay in the service has not been claimed by me at the time of making claim of his pension it does not mean that I have no claim over it. I cannot draw my salary unless a pay slip is issued by the Accountant General of Bihar”. It is thus clear from the stand of the petitioner that he had not voluntarily given up and in fact has not at all given up his claim for salary for the period of his remaining in service after 31.5.1996 and till 2.3.1998. Such a plea for payment of salary to the petitioner for the period of his continuing in service beyond 31.5.1996 being based on his fraudulent misrepresentation in his application dated 13.3.1996 infact cannot be allowed in view of the judgment of this Court in the case of Brajendra Yadav Vs. State of Bihar reported in 2000(4) PLJR 625. This Court having thus reached to a 10 conclusion that the petitioner had indulged in a grave misconduct would also find no merit in the submission of the Counsel of the petitioner that the permanent withholding of pension of 10% is not as per the provisions made in the Bihar Pension Rules or that the same is excessive or arbitrary. Rule 139 of Bihar Pension Rules itself lays down that if the service of a pensioner was not thoroughly satisfactory or there was a proof of grave misconduct on his part while in service, he may be subjected to an order of reduction of pension. In this context, the respondents have brought on record that the petitioner was granted provisional pension by the Department’s letter no. 139 dated 10.1.2003 and as such, within three years of such grant of provisional pension, the Government had the power and jurisdiction to proceed against the petitioner for any misconduct and accordingly also pass an order for reducing the pension. As a matter of fact, the show-cause notice under Rule 139 of the Bihar Pension Rule was issued on petitioner on 31.12.2003 for the aforementioned misconduct of his continuing in service beyond his age of superannuation and when the petitioner did not choose to deny the allegation in his show-cause reply, the impugned order for withholding 10% of his pension was passed. Judged from this point of view, the impugned order cannot be said to be in violation of 11 provisions of Rule 139 of the Bihar Pension Rules. This Court also does not find any merit in the submission of the Counsel of the petitioner that the show-cause notice dated 31.12.2003 was vague or the same did not quantify the proposed amount of reduction of pension. From a bare perusal of the show-cause notice dated 31.12.2003 as in Annexure- 14 to the writ application is absolutely clear that the petitioner was found to be prima facie guilty of misconduct as defined in the Circular of the Finance Department of the Government of Bihar dated 1.4.1991 vide Annexure-E which provided that any Government servant continuing in service even after reaching the age of superannuation will not only be liable for refund of payment of salary but would be also liable for disciplinary measures for continuing in service after reaching the age of superannuation. In fact when the petitioner had filed his detailed reply to the aforementioned show-cause notice dated 31.12.2003 vide Annexure-15 to the writ application dated 13.1.2004, no such plea of vagueness in show- cause notice causing prejudice to him in answering the allegations had been raised by the petitioner. Thus, the grievance of the petitioner on the score of violation of principle of natural justice is only to be noted for its being rejected by this Court. The concept of principle of natural justice is an extension of the principle of fair play and equity and it is well settled that one who seeks equity must do equity. 12 In view of the aforementioned discussions, it becomes clear that the respondents have not committed any illegality in passing the impugned order withholding 10% pension of the petitioner permanently which in the opinion of this Court is the own making of the writ petitioner. Accordingly, this writ application being devoid of any merit is hereby dismissed. There would be not order as to cost. Patna High Court (Mihir Kumar Jha, J.) Dated, the 13th of August, 2008 Anand/Rsh