IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17869 of 2009 1. Yogendra Pandey S/O Sri Ram Bahadur Pandey R/O Mohalla- Madan Jee Ka Hata, Pakri Chowk Ara Bhojpur, P.S.- Ara Versus 1. The State Of Bihar Through Principal Secretary Deptt. Of Personnel And Administrative Rerorms, Govt. Of Bihar, Patna 2. The Principal Secretary Deptt. Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna 3. The Under Secretary, Deptt. Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna 4. The Accountant General (A.G.), Bihar, Patna ----------- For the Petitioner: - Mr. Anand Kumar Ojha, Adv. Mr. Ashok K. Karna, Adv. For the State: - Mr. Binod Kumar, Adv. ----------- 5. 23.08.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order of punishment dated 3.8.2009 withholding 10% of his pension for all times to come. An alternative remedy of appeal is available. But, pleadings are complete and the writ petition has remained pending here since December, 2009. The petitioner is a superannuated person. His pension has been withheld to the extent of 10%. Considering all aspects of the matter the Court is not persuaded to relegate him to the alternative remedy. It shall only prolong the controversy imposing financial burden on the petitioner from his limited pensionary resources. The petitioner was to have superannuated according to his recorded date of birth on 31.12.2004. 2 He however continued to discharge duties during the Assembly elections in the year 2005 in Booth No. 216 at Nokha till the end of January, 2005. A memo of charge dated 4.4.2007 was served upon him under Rule 43(b) of the Bihar Pension Rules on two counts. The first charge was of working beyond his date of superannuation by misleading officials violating Rule 73 of the Bihar Service Code and Clause 3(iii) of Financial Department Circular No. 6287 dated 17.9.1998 constituting a conduct unbecoming of a Government servant. The Second charge alleged the giving of an application to the Collector on 13.1.2005 for voluntary retirement stated to have been accepted contending that he was going to retire on 31.1.2005 thereby attempting to mislead officials by fraud and forgery constituting a criminal offence by concealment of age and attempting to extend the service period illegally. In the departmental proceeding the petitioner did not dispute his date of superannuation. The defence was of a bonafide belief that he would superannuate effective from the end of January. He had no foul intentions and did not stand to gain anything by taking such a serious risk for continuing 3 in service by an extra month only. During that period he performed election work only and did not discharge any duties as Deputy Collector Land Reforms (DCLR). He has drawn salary till December, 2004 only. No sooner that he realized the error he informed the Collector in writing. The letter of voluntary retirement was a result of confusion of thought for which he sought apology. The enquiry officer by his report dated 19.7.2007 recommended that the petitioner had accepted the first allegation but his explanation of a bona fide error was acceptable as there was no evidence that he did it with any foul intentions or to obtain pecuniary advantage. Charge no. 1 was held to be not proved. Charge no. 2 was held proved. Learned counsel for the petitioner submitted that provisional pension had been sanctioned on 19.1.2006. The impugned order has been passed on 6.8.2009, beyond the period of three years permissible under Rule 139 of the Bihar Pension Rules. No fresh show cause notice under Rule 139 was given before passing the impugned order. The original proceedings were under 43(b) of the Pension Rules. Learned counsel for the State submitted 4 that once the petitioner admitted charge no. 1 and charge no. 2 had been established the punishment was justified. The second show cause notice dated 7.2.2008 complied the requirement of Rule 139. Charge no. 1 has been admitted by the petitioner. Procedural irregularities if any therefore become irrelevant. In any event he had full opportunity for his defence in the departmental proceeding. No prejudice has been caused to him by virtue of the final order being under Rule 139. The second show cause notice dated 7.2.2008 complied the requirement of Rule 139 additionally. Charge no. 2 has been proved and the petitioner has not been able to demonstrate any illegality. That brings to the fore the nature of the punishment to be imposed. There is no allegation of having caused pecuniary loss to the State Government or illegal gain to himself. He has not discharged any duties as a DCLR for the period of one month in question. The petitioner therefore cannot be stated to have committed gross misconduct under Rule 43(b) of the Pension Rules. But in view of his having admitted the charge no. 1 and finding of guilt on charge no. 2 his conduct cannot be classified as not blameworthy to deny application of Rule 139. In 5 the facts of the case the Court finds it difficult to hold non compliance with Rule 139 for alleged absence of separate notice thereunder. In view of his admission of the charge the period of three months under Rule 139 has no application. He therefore cannot be absolved of punishment completely. The respondents do not deny discharge of duties by him at the polling booth. Such duty was to the advantage of the respondents and therefore becomes gratis. The petitioner has been unable to demonstrate any infirmity in the departmental proceedings warranting interference to the punishment. The Court considers the conduct of the petitioner to be more of a nature where he found it difficult to part with power and pelf associated with Government service overnight. The enquiry officer has returned a finding that the petitioner had no ill motives on charge no. 1. If he has admitted charge no. 1, the second charge does not remain directly relevant. The petitioner was holding the responsible position of a DCLR and was therefore a well educated person. The Supreme Court in (2005) 3 SCC 501 (Ram Dayal Rai v. Jharkhand SEB) was considering a punishment withholding 5% of the pension for an 6 admitted charge. Modifying the punishment it was held at Paragraph-17 has held as follows:- “17…………..The balance of convenience and the prima facie case is also in favour of the appellant. If the pensioner's benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the Government.” The question for consideration by the Court now is therefore one of proportionality of the punishment. There can be no doubt that reduction of pension by 10% is a serious matter for a superannuated employee. In (1996)10 SCC 193 (C. Chenga Reddy vs. State of Andhra Pradesh) the appellants were accused in the spending of grants in violation of codal provisions and breach of departmental instructions and circulars in the execution of works. Before they could be proceeded with departmentally the case was entrusted to the anti corruption bureau. The were tried and convicted. Their appeal before the High Court was unsuccessful. Both the Courts returned a finding for breach of codal provisions, departmental instructions, circulars, administrative irregularities and lapses. The Court at Paragraph-56 held as follows:- 7 “56…….We have not found it possible to take a view different than the one taken by the courts below in this regard though in our opinion the breach of codal provisions or violation of the circulars and instructions and commission of administrative irregularities cannot be said to have been done by the officials concerned with any corrupt or dishonest intention. The learned counsel appearing for all the appellants also during the course of their arguments were unable to point out any error in those findings and according to them in the established facts and circumstances of the case, the irregularities, administrative lapses and violation of the codal provisions, could only have resulted in a departmental action against the officials but criminal prosecution was not justified. Their argument has force and appeals to us. Since we have given the benefit of the doubt to the accused persons (department officials) and acquitted them, they may seek reinstatement in service. However, as we have agreed with the findings recorded by both the courts below with regard to the violation of the codal provisions and administrative lapses by the departmental officials, it appears to us that a departmental enquiry may be justified but in this fact-situation, it would be an unnecessary exercise. The learned counsel for the appellants have been heard by us at length and they were unable to assail the findings of the courts below regarding codal violations and administrative lapses which may have caused some loss to the exchequer also. What then should be the course of action which should be followed in the facts and circumstances of the case? While the officials deserve to be punished, should we remit the matter to the department for awarding appropriate punishment or should we impose the punishment ourselves and close the chapter. A court of equity 8 must so act, within the permissible limits so as to prevent injustice. “Equity is not past the age of child-bearing” and an effort to do justice between the parties is a compulsion of judicial conscience. Courts can and should strive to evolve an appropriate remedy, in the facts and circumstances of a given case, so as to further the cause of justice, within the available range and forging new tools for the said purpose, if necessary to chisel hard edges of the law. In our opinion in the established facts and circumstances of these cases, it would be appropriate with a view to do complete justice between the parties, in exercise of our jurisdiction under Article 142 of the Constitution of India, to direct that no departmental enquiry shall now be initiated against the departmental officials for their established administrative breaches and violation of the codal provisions in 1979-80. Consequent upon their acquittal, the official respondents (sic appellants) shall be reinstated in service with continuity of service for all purposes but for their established administrative lapses and breach of codal provisions etc., they shall not be entitled to any back wages or any other type of monetary benefit for the period they remained out of service. The suspension allowance, if any, received by all or any one of them shall however not be recovered from them. This punishment appears to us to be commensurate with the gravity of their lapses and shall serve the ends of justice. Those of the officials who may have reached the age of superannuation in the meanwhile, will get their pensionary benefits calculated on the basis of their continuous service but they shall be entitled to draw pension with effect from the date of this order only.” The powers of the High Court to also do 9 complete justice under Article 226 of the Constitution has been considered in (1995) 6 SCC 749 (B.C. Chaturvedi v. Union of India) at Paragraphs-21, 22 and 23 as follows:- “21. I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on two facets of the case. The first of these relates to the power of the High Court to do “complete justice”, which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference! May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act. 22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by 10 moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience. 23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter.” Keeping in mind his superannuated status, his defenceless stand, the nature of offence committed, the Court is satisfied that the punishment imposed is grossly disproportionate. An order of remand at this stage on the quantum of punishment shall only expose him to further travails in the evening of his life along with additional monetary expenses. In order to 11 do complete justice, the Court considers it proper to modify the order of punishment to the extent of withholding of 10% of his pension for one month only. The order dated 3.8.2009 is modified to that extent. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)