IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9444 of 2010 ====================================================== (Against the orders dated 26.2.2010 and 25.3.2010 passed by the Principal Secretary, Water Resources Department, Government of Bihar) 1. Kedar Prasad Keshri S/O Late Sita Ram Prasad Keshri R/O Mohalla- A/122, Housing Colony Lohianagar, Kankarbagh, P.S. Kankarbagh, Distt.- Patna .... .... Petitioner/s Versus 1. The State Of Bihar, Through The Principal Secretary, Water Resources (Irrigation) Department, Govt. Of Bihar, Sinchai Bhawan, Patna Null Null 2. Special Secretary, Water Resources (Irrigation) Department, Govt. Of Bihar, Sinchai Bhawan, Patna 3. Joint Secretary, Water Resources (Irrigation) Department, Govt. Of Bihar, Sinchai Bhawan, Patna 4. Deputy Secretary, Water Resources (Irrigation) Department, Govt. Of Bihar, Sinchai Bhawan, Patna 5. Accountant General, Bihar, Birchand Patel Path, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Shiv Kumar Mr. Kamlesh Kumar Sharma For the Respondent/s : Mr. (Gp21) Mr. J.P.Karn ====================================================== PRESENT HONOURABLE MR. JUSTICE NAVIN SINHA J U D G E M E N T Navin Sinha,J. Heard learned counsel for the petitioner and learned counsel for the State. The petitioner superannuated from the Department of Water Resources on 31.5.2000. While in service, he was placed under suspension and departmental proceedings initiated. He remained under suspension till superannuation leading to the grant of subsistence allowance only. The Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 2 provisions of Rule-43(b) of Bihar Pension Rules (hereinafter referred to as the Pension Rules) were invoked to continue the proceedings. The matter came before this Court also. Ultimately, the petitioner was paid subsistence allowance. He raised a claim for interest on the arrears of salary. The Court permitted him to represent. The claim for interest has been rejected on 26.2.2010. The petitioner also came to this Court in a writ petition for release of pension which appears to have been affected by the departmental proceedings. The Court permitted him to represent on his claim for interest upon the pension dues. That has also been rejected on 25.3.2010. The two rejection orders arise from two separate proceedings before this Court. The petitioner assails both the orders in the present application. The respondents have not opposed the combining of this prayer. The nature of the relief sought being composite, technicalities shall serve no purpose and permitting the common challenge in this application shall only shorten the litigation. Learned counsel for the petitioner submits that charges were framed against the petitioner on 8.9.1995. An enquiry report of exoneration was submitted on 30.1.1996. No final decision was taken and the petitioner superannuated on 31.5.2000. The respondents exercising powers under Rule-43(b) of the Pension Rules issued a Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 3 second show cause notice for a difference of opinion with exoneration on 19.11.2001. There is no explanation for this delay. The petitioner filed C.W.J.C. No.11298/01 when this Court directed the departmental proceeding to be concluded within three months. On 20.2.2002 final orders imposing punishment for withholding 75% of the pension for one year and that nothing beyond subsistence allowance shall be payable for the period of suspension was passed. The petitioner questioned the same in C.W.J.C. No.30/05. The Court did not interfere with the exoneration, but held that the second show cause notice given for a difference of opinion did not form part of the original charges, but granted liberty to the respondents to proceed afresh for the second charge and conclude the enquiry in accordance with law within a period of three months failing which the enquiry shall be treated as closed and the respondents precluded from taking any further action in the matter. The respondents did not conclude the proceedings within the time provided. The petitioner was compelled to file a contempt application also only whereafter final orders were passed closing the enquiry and the petitioner paid his arrears of salary. The petitioner again filed C.W.J.C. No.16619/09 with a claim for interest on the arrears of salary so paid after the departmental proceedings remained inconclusive. The petitioner was permitted to represent Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 4 leading to the impugned order denying interest. In similar manner, the petitioner had filed C.W.J.C. No.17680/09 with a claim for interest on the delayed release of his pensionary dues, likewise permitted to represent which has also been denied by the second order impugned. It is therefore manifest that the petitioner has been harassed ever since the framing of charge in 1995. Notwithstanding the submission of a report of exoneration in 1996, the matter was kept pending without a final decision which emerged in 2002 only after the petitioner filed a writ application in 2001. What emerged thereafter was also not sustainable in law on a ground where the responsibility lay with the respondents to prove the second charge, held by this Court in C.W.J.C. No.30/05 not to have been properly placed by the presenting officer himself. For the lapses of the respondents the petitioner continued to suffer when this Court granted the respondents the liberty to continue with the enquiry on the charge not properly proved. Despite the indulgence granted by the Court, the respondents did not conclude the proceedings in time. They did not file any application for extension of time fixed by the Court for completion of the proceedings. The order releasing the arrears of salary or rejecting the claims for interest does not put forth any reasonable explanation acceptable for the delay, much less any contributory role of the petitioner. The Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 5 power vested in the respondents has not been exercised by them reasonably and responsibly leading to the petitioner having to incur substantial expenses in contesting proceedings and reduction of pension also. Reliance was placed on (2008) 3 SCC 44 (S.K. Dua vs. State of Haryana and Anr.) to contend that this Court has the authority in exercise of powers under Article-226 of the Constitution of India to grant adequate interest by invoking its powers under Articles- 14, 19 and 21 of the Constitution. Learned counsel for the State highlighted that the final order of punishment by a difference of opinion in the departmental proceeding was passed on 20.2.2002. The petitioner filed C.W.J.C. No.30/05, nearly three years later. The Court in the writ application noticed that the materials on which the difference of opinion was founded was but a part of the charge. It had not been proved in accordance with law by the presenting officer. The Court was satisfied that it was a matter serious enough to remand and allow the authorities to complete the proceedings. The orders releasing his arrears of salary contains adequate recitals explaining the reasons why the proceedings could not be completed in accordance with the time fixed in C.W.J.C. No.30/05. If the proceedings could not be concluded by reason of the directions made by the Court, the petitioner cannot claim that he stood exonerated. The matter left open for Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 6 consideration in a fresh enquiry concerned approximately Rs.8,96,000.00 of public money. If the enquiry remained inconclusive, the petitioner cannot contend complete exoneration with a conclusive submission of unrebutted harassment. On the claim of for interest on the pensionary dues it was submitted that it is more than apparent from the order of this Court in C.W.J.C. No.17680/09 that the matter was inextricably associated with C.W.J.C. No.30/05 and C.W.J.C. No.16619/09. The delay was therefore not without reason and unrebuttedly unjustified to hold for grant of interest in his favour. The delay was attributable to the departmental proceedings permitted by this Court to be continued, but which could not attain finality by reason of the order of the Court on grounds explained in the Government orders. The respondents undoubtedly possess disciplinary powers over a government servant. When a charge is issued, it is only an allegation. The charge may stand proved in the enquiry or may fail. Merely because the charge may not have proved cannot in all circumstances amount to harassment or justify a contention of being unnecessarily hounded. If that view were to be taken holding of departmental proceedings would become a precarious issue defeating the very purpose of the departmental proceedings. Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 7 If the respondents sat over the enquiry report from 1996 till 2002, the petitioner sat over the matter from 2002 to 2005. That he may have filed a misconceived Title suit where orders of this Court were considered, the Court finds it difficult to give him the benefit of the submission that he was bona fide pursuing a lawful remedy in the nature of the claim made in the present writ application. In C.W.J.C. No.30/05 this Court was satisfied that an aspect of the charge, serious in nature dealing with public money was left undecided. It permitted the respondents to continue with the enquiry on the undecided charge. The petitioner accepted it. The order/direction was not challenged by him. The respondents failed to conclude the departmental proceedings within the time. It is true that they did not file any application for extension of time also. That can be a relevant factor, but cannot be a deciding factor. By reason of the interdict of the Court, the proceeding could not be concluded and the allegations remained undecided when the decision could be either ways, of guilt or exoneration which is difficult to speculate at this stage. The question that arises is that if the proceedings remained inconclusive and the interdict of the Court operated was it outright negligent and callous conduct of the respondents so as to arrive at a conclusive opinion of unjustified harassment or do the respondents have an Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 8 explanation for the same. The order dated 13.2.2009 recites that after the order of the Court in C.W.J.C. No.30/05 dated 3.12.2007 was received in the Department on 7.1.2008. It was forwarded to the Law Department on 21.1.2008. It was returned on 25.1.2008 with queries. It was re-submitted with answers on 31.1.2008. The Law Department returned the file on 6.3.2008. As per the advice furnished by the Law Department the proceedings were initiated on 22.4.2008. The enquiry officer was reminded to expedite. In this manner the time period of three months expired. Matters in the Government are impersonal in nature. The petitioner has not leveled any specific allegation of individual mala fides or to cause him deliberate harassment. Matters move in the Government at their proverbial speed. It is an old adage that matters move in the Government „at a snail‟s pace‟. There is more than one judicial view that a certain amount of leeway or flexibility of time has to be allowed where Government decisions and files be concerned. Cases of a gross nature making out a compulsive case on facts for a deliberate harassment being apart. In (1987) 2 SCC 107 (Collector, Land Acquisition vs. Katigi) the Supreme Court observed at paragraph 3 as follows:- “3. …..There is no warrant for according a step-motherly treatment when the “State” is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 9 hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even- handed justice on merits in preference to the approach which scuttles a decision on merit…” There has been delay of three years on part of the petitioner also in pursuing matters appropriately after submission of the enquiry report. The Court in C.W.J.C. No.30/05 permitted the respondents to proceed with the incomplete enquiry. They endeavoured to do so. The Court is satisfied with the explanation given by them for the delay and which sufficiently reflects that they were not sitting idle. In conclusion, the Court holds that the petitioner is not entitled to any interest on the arrears of salary for the period of suspension as it cannot be held that the entire responsibility for the delay lay with the respondents alone and that too in a grossly unjustified manner. The allegations have remained undecided and the conclusion on merits could be either ways involving public money. If the punishment was delayed on account of the departmental proceedings permitted by the orders of the Court, the delay in payment of the pension may not be held Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 10 to be totally unjustified insofar as the claim for interest generally be concerned. But for whatever be the reason for which the respondents also shall have to share a part of the blame in the entirety of the discussion the petitioner is certainly held entitled to interest at the rate of 5% in accordance with the provisions of the Pension Rules on the retrial dues paid to him belatedly. The conclusion of the Court to grant the minimal rate at least on one aspect of the matter is based on its conclusion that whatever be the reason, nothing ultimately turned out. There is another very vital aspect of the matter. There are departmental circulars several in number for the manner in which departmental proceedings are to be held and to be concluded in approximately six months. There have been more than one orders of the Court reminding the respondents of the need to conduct departmental proceedings in accordance with law expeditiously. There is a separate Department in the Government of General Administration dealing with matters of departmental enquiry. It is not known if the Government has a policy for training its officers for the manner in which departmental proceedings are to be conducted. A much larger issue is arising in the present case. If the allegations against the petitioner not proved in the Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 11 departmental proceedings in accordance with law related to Rs.8,96,000.00 of public money and the presenting officer did not protect the interests of the Government, is he not liable to be proceeded with departmentally. No explanation has been furnished why no application for extension of time for completion of the departmental proceedings was filed before the Court if procedures were taking time. Were all these being done intentionally to assist the petitioner to obtain relief from the Court. It is time for the respondents to do some soul searching and set their own house in order. The explanation in the order dated 13.2.2009 for administrative purposes itself displays that incomplete proposals were being sent to the Law Department. That is again a subject-matter for a departmental enquiry. Without casting any aspersions on the petitioner, public money to the extent of Rs.8,96,000.00 has been left undecided. There are no allegations of the petitioner contributing to the delay and indecision. Someone has to be responsible. Let him/them be identified and departmental proceedings and/or other appropriate civil or criminal proceedings be initiated against him/them and a compliance report be filed in this Court within a period of four months when the matter shall be listed under the heading “orders”. The interest on pension to be paid be paid within a Patna High Court CWJC No.9444 of 2010 dt.18-11-2011 12 maximum period of three months from the date of receipt/presentation of a copy of this order failing which the petitioner will be entitled to 8% interest upon the same. The application is allowed to the extent indicated only. Patna High Court, Patna. Dated:18th day of November,2011 NAFR/KC (Navin Sinha, J)