IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18634 of 2009 BALDEO RAM, SON OF LATE SHYAM RAJBANSHI, RESIDENT OF VILLAGE REHUA, P.S. PAKARI BARANWA, DISTRICT NAWADA. --- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF TRANSPORT, GOVT. OF BIHAR, PATNA. 3. THE COMMISSIONER, TRANSPORT DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE SECRETARY, FINANCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE SECRETARY, PERSONNEL AND ADMINSTRATIVE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 6. THE DEPUTY SECRETARY-CUM-COMMISSIONER, SOUTH BIHAR REGIONAL TRANSPORT AUTHORITY, NEW SECRETARIAT, PATNA. 7. THE DISTRICT MAGISTRATE, KAIMUR AT BHABHUA. 8. THE ACCOUNTANT GENERAL, BIHAR, PATNA. --- RESPONDENTS ----------- 3 29.4.2010 Heard the parties. The petitioner has challenged the order contained in annexure 11 dated 16.1.2004, issued by the Secretary-cum- Commissioner, Department of Transport, Government of Bihar by which 10% of his pension has been deducted under Rule 139 of the Bihar Pension Rules. The facts of the case are that the petitioner was posted as District Transport Officer at the relevant time i.e. in the year 1995. On 7.1.1995 non-gazetted officers went on indefinite strike and it has been pleaded on behalf of the petitioner that there was no token receipts available in the office, as such he asked the District Magistrate to supply him the proforma of tax receipts by a letter dated 7.1.1995. On 29.4.1995, a show cause was issued to the petitioner alleging that he had misappropriated Rs. 2,00,000/- . On 2.8.1995, second show was issued to the petitioner regarding the same facts. It is not clear from the averments made in the writ application whether the petitioner responded to the show cause issued to him on 29.7.1995 and 2.8.1995. In any 2 event no order was passed by the authorities in question. The petitioner retired on 30.6.1998. On 14.7.2000, the petitioner was again issued a show cause notice as to why 10% of his pension be not deducted in view of the allegations which had been levelled against him. The petitioner came to this Court and filed CWJC No. 5340 of 2002 which was disposed of on 12.9.2002 giving a direction to the petitioner to file a show cause. The petitioner thereafter filed a show cause which is contained in annexure-8 of the writ application. As usual after the show cause was filed no order was passed by the authorities and the petitioner had to file contempt application (M.J.C. No. 1774 of 2003 disposed of on 12.8.2009) and it was during the contempt application that the order dated 24.1.2004 was passed. The petitioner has challenged the impugned order on the ground that the authorities concerned could not have passed the order impugned, deducting his pension by 10% as the matter relates to an offence allegedly committed in the year 1995 for which there was no departmental proceedings to indicate that the petitioner was guilty of the offences alleged. Counsel for the petitioner relies on a decision in the case of the State of Bihar & Ors. Vs. Md. Idris Ansari reported in 1995 (2) PLJR 51 (SC). In the case of Idris Ansari the incumbent was punished by an order dated 6.6.1990 for offences relating to the year 1986-87. The order was challenged in the High Court by filing a writ application which was allowed on 16.11.1992 on the ground that the principles of natural justice were violated during the departmental proceedings. The 3 matter went up to the Supreme Court. The Supreme Court and the counsel appearing on behalf of the State relied on Rule 139 of the Rules stating therein that the authorities had the power to deduct either wholly or in part pension of a retired government servant. Counsel for Md. Idris Ansari on the other hand contended that the proceeding was barred by Section 43(b) of the Rules. It would be relevant to quote both the Rules. Rule 139 reads as follows: “139(a). The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks people. (c) The State Government reserve to themselves the power of revising an order relating to pension passed by sub-ordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, or any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed.” So far as this Rule is concerned, it empowers the State authority to decide a question whether full pension should be allowed to a retired government servant or not in the circumstances contemplated under the Rule. Rule 43(b) reads as follows: (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- 4 (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 (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. After considering both the rules, the Supreme Court has held that “(1) A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory. (2) Even if the service record of the concerned officer is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of misconduct against the concerned officer during the service tenure, the State Government can exercise revisional power to reduce the pension but the revision is also 5 subject to the order that it should be exercised within three years from the order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond the period.” In the present case it is accepted fact that no departmental proceeding was initiated against the petitioner and the show cause notice after retirement of the petitioner (30.6.1998) was issued on 14.7.2000 for the purpose of withholding 10% of his pension on the ground that the service record of the petitioner was not thoroughly satisfactory. Rule 139 has to be read with Rule 43(b) of the Bihar Pension Rules. As a consequence of reading the rules, a retired government servant can be found guilty of grave misconduct during the service career pursuant to a departmental proceeding conducted against him even after his retirement, but such proceeding conducted against him even after his retirement, can be initiated in connection with respect to such misconduct which might have taken place within four years of the initiation of such proceedings against him. In the present case, the petitioner retired on 30.6.1998 and the show cause was issued to him on 14.7.2000 on the ground of a misconduct committed by him in the year 1995. It has been stated in the show cause notice at annexure-7 that the petitioner has been found guilty of the offence alleged and, therefore, notices have been issued as to why 10% of his pension should not be withheld. As stated above in pursuance of the order of this Court, the petitioner filed a show cause which has been considered and disposed of vide annexure-11. Annexure-11 reveals that Ram Dayal Ram against 6 whom it is said that there were similar allegations faced a departmental proceeding and was found guilty. On the basis of the aforesaid findings in the departmental proceeding against Ram Dayal Ram, the State Government had initiated action under Rule 139 of the Bihar Pension Rules after considering the show cause of the petitioner. It has further been stated that Ram Dayal Ram has been punished by the disciplinary authority and on that basis the petitioner is also found guilty as the allegations are similar and as such the State Government has taken a decision to pay only 90% of his pension. The reasons given in the impugned order contained in annexure-11 which is the basis for withholding 10% pension of the petitioner is obviously misdirected. It is well settled principle that a person cannot be held guilty of an offence/misconduct without being given an opportunity of hearing. To hold that the petitioner is guilty of the offence because Ram Dayal Ram against whom there are similar allegations has been found guilty is to make a mockery of the rule of law. It would have been well within the powers of the State Government to proceed under Rule 43(b) of the Bihar Pension Rules and if the petitioner was found guilty of misconduct, he could have been properly proceeded against under Rule 139 (a) and (b) of the Bihar Pension Rules. The reasons for finding the petitioner guilty of misconduct without giving him an opportunity of hearing are absolutely misplaced and on the basis of such reasons, this Court cannot uphold the order of withholding of the pension of the petitioner under Rule 139 of the Bihar Pension Rules. 7 In the result, I quash the order contained in Memo No. 230 dated 16.1.2004 and any other consequential order. The petitioner would be entitled for payment of his entire pension. Further in the facts of this case, this Court is not inclined to grant interest on non-payment of pension as claimed by the petitioner. This application is allowed for the reasons mentioned aforesaid. Sanjay/A.F.R. (Sheema Ali Khan, J.)