IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10668 of 2003 ***** Siya Ram Sharma, son of late Mahendra Sharma, resident of Fataunia, P.S. Paliganj, District- Patna. …. …. Petitioner Versus 1. The Bihar State Electricity Board, through its Chairman, Vidyut Bhawan, Bailey Road, Patna. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Patna. 3. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna. 4. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna-1. 5. The Financial Controller, Bihar State Electricity Board, Vidyut Bhawan, Patna-1. 6. The Jharkhand State Eletricity Board through its Chairman, State of Jharkhand, Ranchi. …. …. Respondents ----------- For the Petitioner : Mr. Ajey Kumar, Advocate For the BSEB : Mr. Vinay Kirti Singh, Advocate Mr. Vijay Kumar Verma, Advocate For the JSEB : Mr. Dhrub Mukherjee, Advocate ----------- 10. 23.1.2009. Petitioner retired from the post of Executive Engineer on 31.1.2000. Post superannuation, petitioner was sanctioned full pension and other retiral dues on 16.3.2000. There is no dispute on this issue because Annexure-1 has been brought on record as proof of grant of pension to the petitioner. The reason why the petitioner has approached this Court is that post sanction of pension sometime in the year 2003 a punishment dated 7.4.2003 contained in Annexure-6 has come to be issued against him. The punishment in question is withholding of 10% pension from the full pension sanctioned to the petitioner earlier. This punishment has been imposed in the purported exercise of power under Rule 139 of the Bihar Pension Rules. While the petitioner was still in service on 14.1.1999, he was issued a show-cause asking him to explain as to under what - 2 - circumstances he fail to take any action against a consumer under Section 138 of the Negotiable Instruments Act, 1981, in view of the fact that a cheque of Rs.27.01 lacs, which was a payment for energy charges had bounced. Petitioner responded to the said communication and then there was a lull. Petitioner was allowed to superannuate as already recorded earlier, final pension sanctioned and thereafter on 20.11.2002 yet another show cause under Rule 139 of the Pension Rules was issued. This show- cause has been brought on record as Annexure-4 to the writ application. In the said show cause besides the bouncing of cheque some other aspect of the matter was also highlighted. Vide a detailed response contained in Annexure-5 petitioner placed his case and explanation. The explanation did not satisfy the authorities, therefore, the order dated 7.4.2003 contained in Annexure-6 imposing punishment of withholding of 10% pension has been passed. Learned counsel appearing on behalf of the petitioner submits that the entire exercise including the punishment imposed against the petitioner is in teeth of various pronouncements on this issue by the High Court. His basic contention is that the respondents could exercise this power of withholding pension under Rule 139 (c) provided the service record of the petitioner was not thoroughly satisfactory or there was proof of grave misconduct on his part while in service. According to the petitioner there is nothing adverse in his service record to allow the respondents to invoke the power under Rule 139. In so far as the second aspect of proof of grave misconduct is concerned this has already been well interpreted and decided that a finding has to be recorded based on a - 3 - departmental enquiry while the pensioner was still in service. Attention of this Court has been drawn to a decision which has been rendered in the case of Muneshwar Prasad Sinha v. State of Bihar, 2004(3) PLJR 708. The Court in a similar kind of dispute has taken pains to lay down the parameters of the powers which the State can exercise either under Rule 43(b) or Rule 139. It is worthwhile to reproduce paragraph nos. 7, 8, 9 and 10 of the said decision, which lays down the law on the issue: - “7. The submission of Mr. Shahi appears to be well founded. The provisions of rule 43(b) and rule 139 are completely different in their nature, scope and ambit. Rule 43(b) vests in the government (or the Board in this case) the power to withhold or withdraw pension for a misconduct or to recover any pecuniary loss caused to the government resulting from any misconduct or negligence from the pension provided the pensioner was found guilty of a grave misconduct in a departmental or judicial proceeding. The provision of rule 43(b) thus deals with specific and separate acts of grave misconduct which in case proved against the pensioner in a departmental or judicial proceeding may form the basis for withholding or withdrawing his pension or recovery from his pension of any pecuniary loss caused to the government or the Board. 8. Unlike rule 43(b) that deals with specific and individual act(s) of grave misconduct, rule 139 empowers the authority sanctioning the pension or the State Government to make an over-all assessment of the service of the concerned employee and to suitably reduce the amount of pension if his service was not thoroughly satisfactory. There can be, therefore, no doubt that the two rules have different scope and they operate differently; one cannot be substituted for the other. In order to recover a loss caused to the Board or the State Government as a result of some specific and individual act(s) of misconduct by an employee the power under rule 139 cannot be invoked for the simple reason that there is a separate rule specially for that purpose, of course, with the bar of limitation provided therein. In this case, both the show cause notice and the impugned order make it quite clear that the Board intended to proceed against the petitioner in regard to specific events during certain periods and to recover from him the amounts of specific losses and advances. Apart from the issue whether or not the responsibility for causing those losses and the dues in - 4 - question were established against the petitioner the relevant provision in the rules for the purpose was clearly rule 43(b) and not rule 139. The exercise of power under rule 139 was therefore clearly misconceived and there appears to be some substance in Mr. Shahi’s criticism that that rule was invoked in order to avoid the bar of limitation under Rule 43(b). 9. That is not all, this court finds that there is a trend these days in the Government, the Board and in other similar bodies and organizations to cite rule 139 of the Bihar Pension Rules without much application of mind. In this regard it needs to be made clear that rule 139 does not only give certain powers to the authorities sanctioning pension but it also lays down a certain procedure. It is highly doubtful whether the power alone can be exercised without the slightest regard to the procedure prescribed by the rule. It may be noted that under rule 139(b) the authority sanctioning pension has the right to suitably reduce the amount of pension in case the service of the concerned employee had not been thoroughly satisfactory. Sub rule (c) of that rule vests the State Government (or the Board in this case) with the revisional power. Sub rule (c) envisages that an order sanctioning pension should first be passed by the sanctioning authority and then that order would be subject to revision by the State Government within three years from the date of the order. It is, therefore, open to question whether the State Government or the Board may directly exercise the revisional power without there being any order by the sanctioning authority that needs to be revised. 10. In this case both the show cause notice and the impugned order was passed by the Board itself and that clearly does not conform to the procedure laid down under rule 139.” To the contrary learned counsel appearing on behalf of the respondent Bihar State Electricity Board submits that the authorities had issues a show-cause to the petitioner much before his retirement. His explanation was taken into consideration and thereafter Annexure-4 came to be issued to him. A reading of Annexure-4 would show that the kind of charge has been drawn-up against the petitioner to which he was asked to - 5 - respond, if the authorities did not find the explanation offered to be satisfactory then Rule 139 does empower them to impose the punishment of withholding the pension. Learned counsel relies on a Division Bench decision rendered in the case of Chittaranjan Prasad v. State of Bihar, 2005(4) PLJR 510. But a reading of the Division Bench judgment does not support the contention of learned counsel for the respondents. The principle which has been enunciated in the Division Bench judgment is that even a proceeding under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules can be utilized for a proceeding under Rule 43(b) of the Bihar Pension Rules. But here also the Court lays down that a charge-sheet must be drawn and explanation sought. But the judgment does not lay down that the same procedure even can be adopted for the purposes of Section 139 of the Pension Rules. There is a clear distinction so far exercise of power under Rule 43(b) and 139 is concerned. In view of the above the Division Bench Judgment is no assistance to the respondents. Keeping the law laid down in the case of Muneshwar Prasad Sinha(supra), the Court is satisfied that the proper process has not been followed before passing of the punishment order contained in Annexure-6. In this view of the matter, petitioner has made out a case for interference and Annexure-6 dated 7.4.2003 stands quashed. Writ is allowed. The petitioner will continue to draw his pension in full as if the punishment order never came to take effect. The deductions, if it has been made during the course of pendency of the writ application, will be refunded to the petitioner. - 6 - Learned counsel for the petitioner thereafter submits that there are certain issues with regard to the arrears of salary and leave encashment. These are matters for which the petitioner will have to approach the respondents for due settlement or else, if so advised, may approach the High Court in a separate writ application. Pawan/- (Ajay Kumar Tripathi, J.)