CIVIL WRIT JURISDICTION CASE No.2995 OF 1997 ****** In the matter of an application under Article 226 of the Constitution of India. ****** JAI KRISHNA JHA, son of late Damodar Jha, resident of Mohalla- Shubhankarpur, Post Office & Police Station- Darbhanga, District- Darbhanga. ….. Petitioner. Versus 1. THE STATE OF BIHAR. 2. The Secretary, Water Resources Department, Government of Bihar, Sichai Bhawan, Patna. 3. The Joint Secretary, Water Resources Department, Government of Bihar, Sichai Bhawan, Patna. 4. The Deputy Secretary, Water Resources Department, Government of Bihar, Sichai Bhawan, Patna. 5. The Chief Engineer, Water Resources Department, Darbhanga. …. Respondents. ----------- For the Petitioner: Mr. Siyaram Shahi, Advocate with Mrs. Shally Kumari, Advocate. For the Respondents: Mr Ashok Kumar Dubey, A.C. to A.A.G.-9. ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******* S.K. Katriar, J. It arises out of a departmental proceeding. This writ petition is directed against the order dated 28.8.1997 (Annexure-8), passed by the Government of Bihar in the Department of Water Resources, whereby punishment has been inflicted on the petitioner and he has been deprived of his pension 2 to the extent of 5% for a period of one year. The impugned order also says that the petitioner shall not be entitled to any part of his salary beyond the subsistence allowance for the period of suspension (17.6.1986 to 19.8.1988). The respondents have placed on record their counter affidavit and have supported the impugned action 2. This matter was earlier laid before a learned Single Judge of this Court. By order dated 3.11.1998, he has referred this matter for the consideration of a Division Bench because he noticed conflict of decisions of this Court on the question whether or not a departmental proceeding initiated against an employee of Bihar Government while he was still in service, requires a specific order of the State Government for its conversion to a proceedings under the Bihar Pension Rules, 1950 (hereinafter referred to as the „Rules‟). That is how the matter comes up before us for our consideration to resolve the conflict of decisions on the issue. 3. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner had joined the services of the Bihar Government as an Assistant Engineer in 1961. He was promoted to the post of Executive Engineer in 1978. He was posted as Executive Engineer, Western Koshi Canal Division No.II, Rajnagar at Khajauli, during the period 6.11.1981 to 25.7.1986. The Bihar Government had formulated a scheme for 3 construction of Kamala Complex structure in that area, which was executed under the supervision and control of the petitioner during the period of his posting. By order dated 17.6.1986, he was placed under suspension which was ultimately revoked on 19.8.1988. The State Government had undertaken two preliminary enquiries and, in view of the findings of the reports, departmental proceeding was initiated against the petitioner. He was served with charge-sheet dated 19.12.1990 (Annexure-3). The petitioner had shown cause by his communication dated 9.8.1991 (Annexure-4). The learned enquiry officer submitted his report dated 24.12.1992 (Annexure- 5), whereby three charges have been held to have been proved and the remaining charges were held not to have been proved. The learned disciplinary authority disagreed with the findings of the learned enquiry officer in so far as the petitioner was exonerated of the charges, recorded reasons for his disagreement, and conveyed the same to the petitioner by his communication dated 4.3.1996 (Annexure-6). The petitioner had shown cause by his communication dated 29.3.1996 (Annexure-7). Before a final order could be passed, the petitioner superannuated from the services of the Bihar Government with effect from 31.5.1996. The departmental proceeding was converted into one under the Rules by the order of the State Government dated 29.4.1997 (Annexure- 4 A). This was followed by the impugned order of punishment. Hence this writ petition. 4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that, in view of the terms of rule 43(b) of the Rules, a specific order for conversion of proceedings under the Rules is essential, failing which the departmental proceeding initiated against an employee while he was in service automatically lapses. He relies on the following reported judgments: (i) Singheshwari Sahay Vs The State of Bihar and others, reported in 1979 B.B.C.J. 735 (D.B). (ii) Sachchidanand Singh Vs. The State of Bihar and others, reported in 1999(3) P.L.J.R. 513 (S.J.) He submits that these decisions laid down the correct law, and the judgment of the Full Bench of three Judges of this Court in Shambhu Saran Vs. The State of Bihar and others, reported in 2000(1) P.L.J.R. 665, does not lay down the law correctly. In his submission, the Full Bench has failed to take notices of the legal position that the expression “…be deemed to be proceedings under this rule and shall be continued and concluded by the authorities by which they were commenced in the same manner as if the Government servant had continued in service…”, occurring in rule 9(2) (a) of the Central Civil Services 5 (Pension) Rules 1972 (hereinafter referred as the „Central Rules‟), is absent in rule 43(b) of the Rules. Therefore, the judgment of the Full Bench of this Court does not lay down the law correctly and needs reconsideration. He submits in the same vein that the law laid down by the Full Bench has been diluted by the Supreme Court in its judgments. 4.1) He next submits that the proceeding suffered from unexplained delay. He lastly submits that the petitioner has, by the impugned order, been deprived of salary beyond the subsistence allowance for the period of suspension without affording an opportunity to explain the position in terms of rule 97 of the Bihar Service Code. 5. The learned Government counsel has supported the impugned action. He submits that the Full Bench lays down the correct law and there is no need for its reconsideration. He submits that the charges have been fully proved, and a mild punishment has been inflicted on him. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. Our first and foremost duty in the present proceeding is to ascertain whether or not the Full Bench lays down the law correctly. Rule 43(b) of the Rules is reproduced hereinbelow: 6 43(a)- xxx xxx xxx xxx xxx xxx xxx xxx “43(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 (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 7 (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. (Emphasis is ours) 6.1) Rule 9 of the Central Rules is reproduced hereinbelow: “9. Right of President to withhold or withdraw pension. - (1) The President reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 49. (2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by 8 which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment. (i) shall not be instituted save with the sanction of the President, (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule(2), a provisional pension as provided in Rule 65 or Rule 74, as the case may be, shall be sanctioned. 9 (5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner 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 be instituted- (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court. (Emphasis added). 7. Learned counsel for the petitioner submits that the underlined portion of rule 9(2)(a) of the Central rules provides that the Central Government may continue with a departmental proceeding initiated while the employee was in service, even after retirement by automatic operation of law and shall be deemed to be proceeding under the Central Rules. In his submission, such an enabling provision is absent in the Rules. Therefore, the departmental proceeding initiated against an employee of the Bihar Government while in service, if continued after his superannuation, needs a specific order of conversion under the 10 Rules, if the authorities wanted the same to continue, otherwise the departmental proceeding shall be co-extensive and co-terminus with the retirement of the employee. In his submission, this aspect of the matter was noticed by a Division Bench of this Court in Singheshwari Sahay Vs. The State of Bihar (Supra), and thereafter by a learned Single Judge of this Court in Sachchidanad Singh Vs. The State of Bihar (supra), but has not been considered by the Full Bench. 7.1) The answer is to be found in the proviso to rule 43(b) of the Rules. It is evident on a perusal of the underlined portion that such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, can be started for the first time after retirement of the employees, if conditions mentioned in the remaining portion of the proviso is satisfied. We are of the view that it is inherent in clause (a) of the proviso that the departmental proceeding, if initiated prior to superannuation, shall automatically continue after his superannuation and does not need a specific order. The Division Bench in Singheshwari Sahay Vs. The State of Bihar (supra), ignored clause (a) of the proviso and fell in error and, therefore, the two decisions were overruled by the Full Bench. The view taken by the Division Bench in Singheshwari Sahay vs. The State of Bihar (supra), was considered by the Full 11 Bench. Paragraph 1 of the judgment in clear and unequivocal terms mentions that the Full Bench has considered the judgment of Singheshwari Sahay vs. The State of Bihar (supra), and has held as follows in paragraph 12 of the judgment: “12. In that view of the matter, we answer the reference by holding as follows: (i) In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary. (ii) The decision of the Division Bench in case of Singeshwari Sahay vs. The State of Bihar and others reported in 1979 BBCJ 735 and the law laid down therein were not correctly decided. We answer the reference accordingly.” It is relevant to state that the judgment of the Full Bench was handed down on 18.11.1991, though reported in 2000, and, therefore, did not have the occasion to consider the judgment of the learned Single Judge in Sachchidanand Singh vs. The State of Bihar (supra), which was handed down on 14.9.1999. However, the judgment in Singheshwari Sahay Vs. The State of Bihar (Supra), and Sachchidanand Singh Vs. The State of Bihar (supra), laid down to the same effect. In view of the decision of the 12 Full Bench, the view taken in Sachchidanand Singh Vs. The State of Bihar (supra), will be taken to have been overruled. 8. The Full Bench has held that rule 43(b) of the Rules is deemed punishment of a Government servant who has done a wrong in a different way because, after retirement, the penalties contemplated by the Classification, Control and Appeal Rules cannot be imposed. Various safeguards have been provided in the proviso to rule 43(b) of the Rules that proceedings can be initiated for the first time after superannuation if the conditions indicated in the proviso to rule 43(b) are satisfied to prevent misuse of power and undue harassment to a retired Government servant, but there is no question of harassment where the departmental proceeding was initiated against the Government servant while still in harness. The Full Bench concluded that, in view of the terms of rule 43(b), no specific order of conversion is needed and the departmental proceeding initiated while in service gets converted into proceeding under rule 43(b) by automatic operation of law, otherwise the Court would be introducing a condition in rule 43(b), which the Legislature did not intend or contemplate. The Full Bench decision clearly and unflinchingly overruled the decision in Singheshwari Sahay Vs. The State of Bihar (supra). 9. We, therefore, conclude that the departmental proceeding in the present case was initiated against the petitioner 13 while he was in service and, in view of the decision of the Full Bench of this Court, got converted to proceeding under the Rules by automatic operation of law without the necessity and the requirement of a formal order of conversion before or after his retirement. In that view of the matter, the formal order of conversion passed by the authority on 29.4.1997, after superannuation of the employee, was a redundancy fit to be ignored, and has no legal implication at all. 10. The contention advanced on behalf of the petitioner is rejected, and the issue raised by the learned Single Judge is accordingly answered. 11. Relying on rule 97 of the Bihar Service Code, learned counsel for the petitioner submits that the petitioner has been deprived of his salary beyond the subsistence allowance for the period of suspension without a separate show-cause notice to him. Rule-97 of the Bihar Service Code reads as follows: “97. (1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order--- (a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. 14 (2) Where the authority mentioned in sub-rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe: Provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.” In appears to us on a plain reading of rule 97 of the Bihar Service Code that, if an employee were punished in course of a departmental proceeding, major or minor, deprivation of salary beyond the subsistence allowance is automatic. Therefore, there is no question of issuing show-cause notice. 15 12. Learned counsel for the petitioner has relied on Pramod Kumar vs. The Champaran Kshetriya Gramin Bank and others, reported in 2003(4) P.L.J.R. 68. The same did not deal with rule 97 of the Bihar Service Code, and was based on different provisions applicable to the Champaran Kshetriya Gramin Bank. Furthermore, that was a case where separate order had been passed for deprivation of salary for the period of suspension beyond the subsistence allowance. It was in those circumstances that the Division Bench held that show-cause notice was essential. That case stood on different facts, with respect to different provisions of law and, therefore, inapplicable to the facts and circumstances of the present case. 13. Learned counsel for the petitioner has also raised a grievance with respect to the delay in concluding the proceedings, particularly after submission of the enquiry report. There was indeed some delay in concluding the proceeding, but we are unable to see any prejudice to the petitioner on account of the delay, particularly in a situation where the minimum punishment has been imposed on him. This has to be read with the factual position that the petitioner had not placed any defence during the course of enquiry proceeding, and the findings are very serious against him, and the minimum punishment has been inflicted. We are indeed left with the feeling that he was let off very lightly. 16 14. In the result, we do not find any merit in this writ petition and is accordingly dismissed. There shall, however, be no order as to costs. (S K Katriar, J.) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna. Dated the 1st day of October, 2010. S.K.Pathak/ (AFR).