IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9703 of 2010 ====================================================== 1. Dwarka Nath Tewary, S/O Late Paramhans Tiwary, 165 Patliputra Colony, P.S. Patliputra, Patna-.200013. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary To The Govt. Of Bihar In The Department Of Home (Special) Bihar, Patna. 2. The Officer On Special Duty To The Govt. Of Bihar In The Department Of Home (Special),Bihar,Patna. 3. The Inspector General Of Prisons, Bihar, Patna. 4. The Inspector General Of Prisons, Bihar, Patna. 5. The Divisional Commissioner, Patna Division, Patna. 6. The Accountant General,Bihar, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. A.B.Ojha Mr. Sriniwas Jha Mr. Dinesh Pandey For the Respondent/s : Mr. (Gp5) Mr. J.P.Karn ====================================================== 3 08-11-2011 Heard learned counsel for the petitioner, learned A.A.G.-12 on behalf of the respondents and also for respondent No.5. The petitioner superannuated on 31.10.2002 when he last held the post of Superintendent, Central Jail at Buxar. He is aggrieved by the order dated 27.11.2009 issued by respondent No.2 withholding 10% of his pension and gratuity in exercise of powers under Rule-43(b) of the Bihar Pension Rules. A memo of three interconnected charges was served upon him on 27.10.2005. It alleged that denial of permission by him for entry of an accused transferred from Sheikhpura Patna High Court CWJC No.9703 of 2010 (3) dt.08-11-2011 2 Jail to Buxar under Home (Special) Department Order No.1228 dated 16.5.2002 reflected indiscipline and defiant behaviour. The defence raised by him that the under trial prisoner could not be transferred without orders of a competent court, sought to question the acts of the Government when he had himself acted upon similar orders with regard to fifteen others reflecting selfishness and deliberate violation of government orders. The last charge was for describing the instructions for transfer as not a „lawful order‟ questioning the orders of his superiors which was an act of indiscipline. Learned counsel for the petitioner submitted that the petitioner had acted bona fide as per his understanding of the provisions of the Prisoners‟ Act and the Cr.P.C. with regard to shifting of undertrial prisoners from one jail to another. A plausible defence was taken by reference to legal provisions and it was not an outright fanciful act done to favour anybody. In fact, the legal defence taken by him led to the State Government ultimately amending the Prisoners‟ Act in the year-2003 in Rule-3 (1900). It therefore cannot be classified outright as an act of unexplained indisciplined behaviour. The petitioner had also taken the defence that the order dated 16.5.2002 had not been adequately brought to his attention on or before 18.5.2002 when the under trial prisoner was sought to be shifted to his jail. Patna High Court CWJC No.9703 of 2010 (3) dt.08-11-2011 3 Learned Additional Advocate General-12 submitted that there is a finding of fact in the enquiry that the petitioner was adequately aware of the government directive dated 16.5.2002. He next submits that the question is not of the provisions of the Cr.P.C. or the Prisoners‟ Manual, but with regard to compliance of government instructions by a government servant. It was submitted that the enquiry officer has rightly held that even if the petitioner had any bona fide objections in the law, it was his duty to first comply the government instructions and then bring matters to the attention of the authorities. The justification for the punishment is therefore well-discussed and the Court may not interfere with the same. The jurisdiction of the Court to interfere with an order of punishment passed in a departmental proceeding is limited in nature primarily confined to the decision making process. The Court cannot go into re-appreciation of evidence. The sine qua non for an order under Rule-43(b) of the Bihar Pension Rules is „grave misconduct‟. The petitioner has not alleged any procedural impropriety in the conduct of the departmental proceedings except to urge that the concurrence of the Bihar Public Service Commission was not taken before issuance of the final order. That has been held to be directory which may not ipso facto vitiate the punishment from nativity in 2007(4) Patna High Court CWJC No.9703 of 2010 (3) dt.08-11-2011 4 SCC 785 ( Union of India v. T.V. Patel ) holding at paragraph- 25 as follows:- “25. In view of the law settled by the Constitution Bench of this Court in Srivastava we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.” The Court is not persuaded to consider any objections with regard to non-supply of documents etc. when no such grounds were taken by the petitioner before the enquiry officer and no material has been placed before this Court to demonstrate any prejudice caused thereby. The Court is not persuaded to re-appreciate evidence with regard to service/knowledge of the letter dated 16.5.2002 before the shifting of the prisoner on 18.5.2002. On issues of fact, the findings of the enquiry officer have to be given finality. Learned Additional Advocate General-12 has not been able to satisfy the Court to desist from holding that the enquiry officer himself arrived at the conclusion that there was indeed a grey area in the provisions of the Prisoners‟ Act and the Cr.P.C. with regard to shifting of under trial prisoners which ultimately necessitated an amendment by the State Government in the year-2003 to the Prisoners‟ Act. Patna High Court CWJC No.9703 of 2010 (3) dt.08-11-2011 5 In absence of any allegations in the memo of charge that the petitioner had acted mala fide or with any foul intentions to benefit anyone, the Court has not hesitation in concluding that the conduct of the petitioner may not have been very appropriate but was certainly not fanciful and outright wanton amounting to grave misconduct. He took a defence in the law. True it is that as an obedient government servant he should have first taken the transferred prisoner into the prison and then written to his superiors with regard to what were the procedural difficulties he may have noticed when the amendment would have followed in any course. The enquiry officer himself holds in conclusion that there may have been a grey area with regard to transfer of prisoners, and subsequent to which the amendment came to be made, nonetheless, the petitioner as a government servant was first required to comply orders and then raise issues. The petitioner in true sense of the spirit may have committed a misconduct in the eyes of the respondents, but when his defence was not found fanciful by them, can it be classified as a grave misconduct to invoke the strong provisions of the Bihar Pension Rules. For a person after superannuation pension is his only source of survival. He plans his retirement based on his meager pensionary resources. Any reduction or withholding of the pension therefore has serious consequences. The connotation of the Patna High Court CWJC No.9703 of 2010 (3) dt.08-11-2011 6 words „grave misconduct‟ used in the Pension Rules therefore cannot be lost sight of. The law making authorities themselves realized the importance of pension for a retired government servant and therefore classified the exercise of the power to „grave misconduct‟. If the petitioner committed a misconduct, issues of quantum of punishment are primarily for the employer to decide unless the Court finds it to be shocking to the conscience of the Court. If the Court were to interfere with the quantum of punishment, there has to be cogent reasons and consideration of issues for exercise of power. There are no allegations that he acted for wrongful pecuniary gain or mala fide in fact to grant undue benefit to another. The petitioner has superannuated as far back 31.10.2002. The impugned order dated 27.11.2009 shall undoubtedly visit him with very serious consequences when the Supreme Court in (2005) 3 SCC 501 ( Ram Dayal Rai v. Jharkhand State Electricity Board ) has held that even 5% reduction of pension is a very serious matter. The Court arrives at the conclusion that his actions cannot be classified as „grave misconduct‟. There has to be a difference between the terminology „misconduct‟ and „grave misconduct‟. The words misconduct has been explained in (2002) 3 SCC 667 (Baldeo Singh Gandhi vs. State of Punjab as follows:- “9. …The word misconduct is antithesis of the Patna High Court CWJC No.9703 of 2010 (3) dt.08-11-2011 7 word conduct. Thus, ordinarily the expression „misconduct‟ means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanor….” In (1995) 5 SCC 457 (C. Ravichandran Aiyer vs. Justice A.M. Bhattacharjee) misbehaviour has been described as wrong conduct or improper conduct. In (2010) 13 SCC 586 (Mehar Singh Sahni v. Haryana Public Service Commission and others, In Re) it has been held at paragraph-74:- “74…. In other words, misbehaviour/misconduct could be used interchangeably in certain circumstances while in others they may have to be understood as clearly distinguishable. „Misbehaviour‟ may include behaviour that was not expected of the holder of the constitutional office but would not include “grave misconduct…” To remand matters at this stage will only be exposing the petitioner to more harassment from his meager pensionary resources. The Court therefore considers it proper to give a quietus to the whole matter. The impugned order dated 27.11.2009 is therefore modified to the extent that in place of reduction of 10% of his pension, the same be read down to reduction of 10% of the pension of one month only. With the aforesaid modification of punishment the writ application is disposed off to be complied in its entirety expeditiously. (Navin Sinha, J) Patna High Court CWJC No.9703 of 2010 (3) dt.08-11-2011 8 Krishna Chandra Jha/-