IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5296 of 2010 1. Pramod Kumar Vidyarthi S/O Late Dr. D.P. Vidyarthi, Resident Of 24b Road No.3, Rajendra Nagar, P.S - Kadamkuan, District -Patna. Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna. 2. The Principal Secretary, Road Construction Department, Govt. Of Bihar, Patna. 3. The Joint Secretary, Road Construction Department, Govt. Of Bihar, Patna. 3/ 12/09/2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 15.2.2010 initiating departmental proceedings against him under Rule-43(b) of the Bihar Pension Rules ((hereinafter referred to as the Rules) on two charges, the second charge subdivided into five sub-charges. He has superannuated on 30.4.2007 from the post of Chief Engineer, Vigilance. Learned counsel for the petitioner submits that a memo. of one charge was served upon the petitioner on 14.2.2007. It alleged delay on his part in publication and disposal of a tender notice which affected the pace of the works reflective of indiscipline and an attitude of shirking work. There were no allegations of any financial loss caused to the respondents by his conduct. On 23.2.2007 the petitioner asked for certain documents in context of the 2 allegations which never came to be supplied and nothing further transpired in the proceedings. The petitioner therefore bona fide and legitimately believed that the matter had ended. On 25.4.2007 he was served with another memo. of two charges. The allegations related to the grant of works to tenderers in the year- 2003-04. The petitioner submitted his reply. The proceedings continued after his superannuation five days later. He was sanctioned 90% of his provisional pension in the meantime. An enquiry report of complete exoneration came to be submitted on 28.1.2008 and which was finally accepted by the State Government on 25.8.2009 leading to release of 100% of his pension. The present proceedings have then been resorted to in abuse of the powers as there was sufficient opportunity for the respondents to not only issue a supplementary charge-sheet in the second proceeding but also conclude the first proceeding before exoneration and acceptance on 25.8.2009. Without prejudice to the aforesaid, it is submitted that the power under Rule- 43(b) is an extra ordinary power. It must be construed strictly. There are no allegations of having caused any pecuniary loss to the respondents by his misconduct or negligence. On the face of the charges Rule-43(b) has no application. The petitioner is unnecessarily being 3 harassed in the evening of his life. Counter affidavit and supplementary counter affidavit has been filed on behalf of the respondents. It is cryptic and hardly helpful in adjudication. Learned counsel for the State is unable to demonstrate that the charges allege financial loss to the State Government. Charge-1 of the present proceedings under Rule-43(b) of the Pension Rules is only a reiteration of the charge served on him during service on 14.2.2007. The counter affidavit does not deny that the petitioner had asked for documents in response to the charges dealing with it at paragraph-10 that it related to the history of the case. It is therefore apparent that the irregularity was attributable to the respondents. The charge-2 divided into five sub-charges relate to non-completion of more than one departmental proceedings entrusted to the petitioner with regard to other employees. It has been submitted on behalf of the petitioner that they related to the years-2001-02. Surely, if the petitioner was not acting expeditiously during his service tenure and had kept the departmental proceedings pending, the respondents were not powerless on the issue. All options were available to them for withdrawing the proceedings from him and entrusting the same to another. 4 This Court has declined interference where departmental proceedings for various reasons are withdrawn and entrusted to other officers during the pendency. The counter affidavit is silent on the aspect that if the petitioner was not very efficient in disposing of the pending proceedings why the respondents aided him in his negligence by refusing to be vigilant themselves. The Court does not consider it necessary to go into the question that the charge-2 may be beyond the period of four years from the date of his superannuation, thus barred by Rule-43(b). The power under Rule-43(b) is a serious power. The consequences for a superannuated person in the evening of his life is deleterious but that can be no consideration if the charges on the face of it do reflect gross misconduct causing pecuniary loss to the State Government. In that event, larger public interest shall prevail and the delinquent shall have to face the proceedings in accordance with law. Conversely, the power being serious, the same level of caution has to be exercised by the respondents while resorting to this extra ordinary power. The Court while examining the nature of the charge shall have to balance the 5 protection of the public interest with the right of the individual. This Court in C.W.J.C. No. 11 of 2010 has already held by a detailed discussion that before resorting to this extra ordinary power, the respondents are expected to first carry out an in house assessment and study with regard to the nature of the allegations, the materials against the delinquent, the likelihood of the outcome by a cost benefit analysis of the entire issue before resorting to this extra ordinary power. Government funds cannot be frittered away by casual exercise of this power attributable to the trustee in whom the Government entrusted the power. “ 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 be 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 6 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. 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 respondents had more than enough opportunities to not only conclude the departmental proceedings on charge-1 of the present proceeding not 7 only at his superannuation, but also thereafter by issuance of a supplementary charge-sheet before final acceptance by the State Government of the enquiry report in the subsequent proceedings on 25.8.2009 leading to release of the pension. Even this charge as noticed above did not allege any financial loss to the State Government. Charge-2 under its five sub-charges related to alleged inefficiency in discharge of duties by not concluding the departmental proceedings in time. Again there are no allegations of any financial loss caused to the State Government. The power under Rule- 43(b) being draconian insofar as a government servant is concerned, the Court shall but read it strictly to hold that in a case where no pecuniary loss has been caused to the State Government resorting to this power shall be clearly an abuse of the power. The power under Rule 43(b) is not absolute to be exercised in cases of any misconduct during service. It must be grave misconduct causing pecuniary loss to the Government which may also be occasioned by negligence. The connotation of the word grave misconduct cannot be ignored. The conduct must not be a routine misconduct but something out of the ordinary of a seriousness which simply cannot be ignored, a standard of conduct which any reasonable 8 person under normal circumstances would not have expected from any reasonable government servant as detrimental to the interest of the Government. The term misconduct has been explained in (1979) 2 SCC 286 (Union of India v. J. Ahmed) at paragraph-11 as follows:- “11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct…..” The distinction between misconduct and gross misconduct can be better appreciated by an appropriate reference to (2010) 13 SCC 586, (Mehar Singh Saini, Chairman, Haryana Public Service Commission) 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” or “proved misbehaviour”……..” That the power under Rule 43(b) can be exercised for gross misconduct causing pecuniary loss only has been explained (1987) 2 SCC 179 ( State of U.P. v. Brahm Datt Sharma) at paragraph-6 as follows:- “6……If the Government incurs pecuniary loss on account of misconduct 9 or negligence of a government servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceedings, and if in those proceedings he is found guilty of misconduct, negligence or any other such act or omission as a result of which Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension…..” Perhaps, if before issuing the memo of charge dated 15.2.2010 under Rule-43(b) the respondents had carried out an inhouse study with regard to those in their own officer who were not vigilant in working and it allowed those lapses to take place by the petitioner fixing responsibilities on such persons still in service in their counter affidavit by demonstrating its bona fides. The Court may have been required to examine further issues. The order dated 16.2.2010 initiating the departmental proceedings under Rule-43(b) and the memo. of charge annexed thereto are therefore quashed as being beyond the purview of the jurisdiction of Rule- 43(b) of the Pension Rules. The writ application is allowed. KC ( Navin Sinha, J.)