IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11017 of 2010 1. Maqsood Alam S/O Late Abdul Wahab R/O Mohalla- Math Lakshmanpur, Koiri Tola, P.O.- Gulzarbagh, P.S. Alamganj And Distt.- Patna Versus 1. The State Of Bihar 2. The Secretary, Department Of General Administration, Govt. Of Bihar 3. The Secretary, Department Of Revenue And Lands Reforms, Bihar 4. The Principal Secretary To The Hon'Ble Chief Minister, Bihar, Patna 5. The Divisional Commissioner-Cum-Conducting Officer, Purnea 6. The Collector, Kishanganj 2/ 14/11/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner superannuated from service on 31.5.2003 when he last held the post of Executive Magistrate. He is aggrieved by order dated 31.8.2007 initiating departmental proceedings against him under Rule-43(b) of the Bihar Pension Rules (hereinafter referred to as the Pension Rules) on two charges. Learned counsel for the petitioner submits that the charges relate to the year-1998-1999. The allegations are in respect of a period more than four years from the date of the charge. The proceedings are barred under Rule-43(b) of the Bihar Pension Rules.. He relies upon a judgement of the Supreme Court reported in (1995) Suppl. 3 SCC 56 (State of Bihar vs. Md. Idris Ansari). 2 Learned counsel for the State submits that the charges against the petitioner are serious, indicative of gross misconduct. The proceedings are valid under the Pension Rules having been initiated on 17.5.2007 within four years of the retirement on 31.5.2003. The Court may not interfere in exercise of its discretionary jurisdiction. Rule-43(b) reads as follows:- “(b) The State Government further reserve to themselves the right of 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 proceedings 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;” The power vested under Rule-43(b) of the 3 Pension Rules is a serious power. It has to be exercised with the same seriousness and caution both with regard to its positive and negative aspect pursuant to the purpose for which it was engrafted. No government servant amenable to proceedings thereunder should be allowed to escape the long hands of the law merely because of his superannuation. Simultaneously, before exercise of the power there has to be proper application of mind to all questions of facts and law so that a retired person is not hounded in his twilight years by abuse of statutory powers. Especially when the issue has engaged the attention of the Courts in more than one case. The allegations against the petitioner relate to the year-1998-1999. It alleges absence from duty during flood operations, absence from the Head Quarters, indicative of indiscipline, failure to display adequate interest in revenue collection, absence from office despite directions of the superior authorities because of which settlement of the concerned Gair Majarua lands could not be made, failure to comply directions of this Court leading to contempt proceedings. There is no need to go into the discussion whether these may constitute “misconduct” or “gross misconduct” the power under Rule-43(b) being available 4 for the latter and not for the former as the case can easily be disposed off on a pure question of law framed on admitted facts. The contention of the respondents that the proceedings have been initiated within four years of superannuation has to be stated to be rejected. It is an argument more in desperate frustration in teeth of well settled law upon contest unsuccessfully by the respondents in Md. Idris Ansari (Supra). There is no denial of the fact that the charges were framed on 31.8.2007 when the proposed charges were approved and forwarded for issuance. The question of issuing them before that date on 17.5.2007 simply does not arise and is an apology for a defence. Whether the charges were framed on 17.5.2007 or 31.8.2007 is irrelevant in view of the fact that the charges relate to a period well beyond four years i.e. 1998-1999. If the petitioner committed any misdemeanors while in service in 1998-1999, it is for the respondents to first put their house in order and fix responsibility on those who did not allow issues to see the light of the day in due time and prevented appropriate proceedings being initiated against the petitioner. Those who facilitated the same are first required to be the subject- matter of a departmental proceeding themselves. 5 It has been held at paragraph-7 of Md. Idris Ansari (Supra) as follows:- “7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986- 87. As the alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture….” This Court has in C.W.J.C. No. observed as follows:- “A proceeding under the Pension Rules is an extremely serious matter and is not to be lightly resorted to. Equally, serious matters shall brook no delay. There has to be serious judicious exercise of the power when all aspects including the possibility of the punishment being ultimately upheld must all be considered at the very inception. A pensioner has to contest the proceedings both before the authorities and then before the Court from his meager pensionary resources. At a time when he should be enjoying the peace and serenity after a hard life, it is a serious jolt to him mentally and socially. Proposals should not be routinely initiated at the lower level and vetted at the senior level only after due application of mind. The government also should not incur wasteful expenditure in contesting a litigation which should never have seen the light of the day. The man hours lost and wasted in the office pursuing a lost cause is but a national loss. 6 Every frivolous proceeding calls for introspection by the government not only with regard to the man hours wasted, the wasteful expenditure incurred by the government and the social and monetary humiliation caused to the pensioner. The question of answerability and accountability by those who initiate frivolous proposals must necessarily engage serious attention of the government. The Bihar State Litigation Policy published on 31.3.2011 contains a plethora of guidelines. They are not mere platitudes but are meant to be seriously studied and implemented. This is more onerous where the field is covered by well considered and repeated judicial precedents. The Court’s should not be burdened with frivolous litigation generated by irresponsibility. An overburdened Court’s time and energy should be left for more serious, new and important matters. The present case calls for serious introspection of the manner in which the power was exercised. The Court expects that the Principle Secretary, Department of Planning and Development shall adequately take notice of the anguish of the Court.” The Court holds that the respondents have acted without application of mind and in gross abuse of statutory powers. The writ application is allowed with costs of Rs.20,000/- to be paid to the petitioner within a maximum period of four weeks from the date of receipt/production of a copy of this order before the concerned respondent. The respondents shall initiate internal enquiry, fix responsibility for initiation of a proceeding contrary to law and recover the costs from the delinquent concerned after due opportunity and 7 also initiate departmental proceedings for having abused the powers misleading the government which cannot be classified quite simply as a bona fide mistake. Every person holding a public office is answerable and accountable for his actions which do not have the sanctity of law. Public power given for a public purpose has to be exercised for the public benefit and not in derogation to it by abuse of powers vested in a government functionary, in trust, by the government for use and not abuse. The writ application is disposed. KC ( Navin Sinha, J.)