IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1434 of 2011 In Civil Writ Jurisdiction Case No. 3466 of 2008 With Interlocutory Application No. 6891 of 2011 With Interlocutory Application No. 6892 of 2011 In Letters Patent Appeal No.1434 of 2011 ====================================================== 1. The State of Bihar. 2. The Secretary, Road Construction Department, Government of Bihar, Patna. 3. The Engineer-Chief-cum-Special Secretary, Road Construction Department, Bihar, Patna. 4. The Joint Secretary, Road Construction Department, Government of Bihar, Patna. 5. The Deputy Secretary-cum-Chief Vigilance Officer, Road Construction Department, Government of Bihar, Patna. .... .... Respondents/Appellants Versus 1. Ganesh Prasad Singh, Son of Late Dev Narayan Singh, Resident of Ganjijala, near Vir Kunwar Singh High School, P.S.-Saharsa, District- Saharsa. …. …. Petitioner-Respondent No.1 2. Sri Krishna Murari Prasad, the Superintending Engineer, Ganga Bridge Project, Mechanical-cum-Design Circle, Road Construction Department, Government of Bihar, Patna. .... .... Respondent no.6/Respondent ====================================================== Appearance : For the Appellants : Mr. P.K.Verma, AAG-5 Patna High Court LPA No.1434 of 2011 (2) dt.29-09-2011 2 / 6 2 Mr. S.R.Sharan, A.C. to AAG-5 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2. 29-09-2011 This Appeal preferred by the State Government under Clause 10 of the Letters Patent arises from the judgment and order dated 17th September 2010 passed by the learned single Judge in above C.W.J.C. No. 3466 of 2008. The Appeal is barred by limitation by 253 days. The subject matter of dispute is the initiation of disciplinary proceeding against the respondent-writ petitioner (hereinafter referred to as “the delinquent”), a retired Executive Engineer, Road Construction Department, Government of Bihar, under Government Resolution dated 6th July 2006. Pending the writ petition, the disciplinary proceeding was concluded. For the misconduct proved against the delinquent, under Government Notification dated 2nd July 2010, issued in exercise of power conferred by Rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as „the Pension Rules‟), the State Government has ordered withholding of 100% pension. The said order was challenged by the delinquent by filing Interlocutory Application No. 6778 of 2010. The said application was allowed by the learned single Judge under the impugned judgment dated 17th September 2010. The misconduct proved against the delinquent was that during his service period from January to July 2001, the delinquent had misappropriated the Government funds to the extent of Rs.14,18,689/-. Patna High Court LPA No.1434 of 2011 (2) dt.29-09-2011 3 / 6 3 Challenge to the disciplinary proceeding was confined to the provisions of the aforesaid Rule 43(b) of the Pension Rules. According to the delinquent, he had retired from service on 31st July 2003. A disciplinary proceeding in respect of the incidence of January to July 2001 initiated in 2006, after more than four years from the date of incidence was hit by the limitation imposed under proviso (a) (ii) to Rule 43(b) of the Pension Rules. Rule 43 of the Pension Rules reads as under: - “43. (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. [(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 proceeding 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 Patna High Court LPA No.1434 of 2011 (2) dt.29-09-2011 4 / 6 4 (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; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re- employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation.- For the purposes of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted:- (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court.” It is apparent that under the aforesaid Rule 43(b) the Government has reserved right to withdraw or withhold whole or part of a pension payable to a pensioner in case he is convicted of a serious crime or is guilty of a grave misconduct or for the purposes of recovery of any pecuniary loss caused to the Government by misconduct or negligence of the pensioner during his service. The aforesaid power to withhold the pension is subject to the conditions mentioned in the proviso thereto. Clause (ii) Patna High Court LPA No.1434 of 2011 (2) dt.29-09-2011 5 / 6 5 thereof imposes a bar of limitation of four years from the date of the incidence under enquiry. In the present case the incidence under enquiry is misappropriation of Government funds by the delinquent during the period from January to July 2001. The disciplinary proceeding was initiated five years thereafter in July 2006. In the interregnum, the delinquent retired from service in 2003. The aforesaid bar of limitation would, therefore, apply to the case of the delinquent. Admittedly, the disciplinary action was not initiated within four years envisaged under the above proviso (a) (ii) to Rule 43(b) of the Pension Rules. Such enquiry was liable to be set aside as has been done by the learned single Judge. Learned Additional Advocate General Mr. P.K. Verma has appeared for the appellant-State of Bihar. He has submitted that in the present case the act of misappropriation by the delinquent did not come to light until the audit report. The matter was pending before the Lokayukta. He has submitted that in such cases the State Government has resolved that the limitation of four years shall apply from the date of the knowledge or from the date of the recommendation made by the Lokayukta. Mr. Verma has relied upon the Resolution dated 8th October 2007 issued by the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar. We are afraid, though the intention of the State Government may be laudable, provisions contained in the Rules cannot be amended/modified/explained by an executive fiat or an administrative decision. The above referred Resolution, therefore, cannot have an overriding effect over the provisions contained in Rule 43 of the Pension Rules. Patna High Court LPA No.1434 of 2011 (2) dt.29-09-2011 6 / 6 6 Mr. P.K. Verma has next contended that the date of initiation of the disciplinary proceeding is the date of decision to make enquiry and not the date of issuance of the charge sheet. The contention has to be rejected outright. The contention is contrary to the settled law and is also contrary to Explanation (a) to above Rule 43(b) of the Pension Rules. No other contention is raised before us. The disciplinary proceeding initiated against the delinquent being in contravention of Rule 43(b) of the Pension Rules has rightly been set aside by the learned single Judge. No case for interference is made out. As recorded hereinabove, the Appeal is barred by limitation by 253 days. The appellant has filed Interlocutory Application No. 6891 of 2011 under Section 5 of the Limitation Act to condone the said delay of 253 days. The appellant has not made out any cause much less a sufficient cause for the aforesaid delay. For the aforesaid reasons, Appeal and the Interlocutory Applications are rejected. Pawan/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)