IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12625 of 2006 AMBIKA SINGH, son of late Ram Deo Singh, resident of village- Begampur, P.O. Nalanda, District-Nalanda. Versus 1. THE BIHAR STATE ELECTRICITY BOARD Patna through its Secretary. 2. The Chairman, Bihar State Electricity Board, Patna. 3. The Secretary Bihar Electricity Board, Patna. ----------- 5 24.02.2010 Heard Mr. Shailendra Kumar Singh, learned counsel appearing on behalf of the petitioner and Mr. Vinay Kirti Singh learned counsel appearing on behalf of the Board. With the consent of the parties, the matter has been taken up for disposal at the stage of admission itself. The petitioner superannuated from the services of the Respondent Board with effect from 31.10.2004 while holding the post of Headclerk. Indisputably during his service career no adverse remarks nor any punishment was imposed against the petitioner. The dispute arose after the superannuation of the petitioner and during the course of processing of his post retiral benefits the impugned order came to be issued on 3.7.2006 (Annexure-3) whereby the Board issued an order of penalty in purported exercise of power under Rule 139 of 2 the Bihar Pension Rules. The petitioner was charged with causing loss to the Board for excess service done by one Sri Sri Ram, an unskilled Khalasi, who according to the Board, was allowed to continue even after his date of superannuation on 29.2.2004 until May, 2004 i.e. a period three months due to lapses of the petitioner. The petitioner was imposed a further penalty of deduction of 2% amount of his pension. The allegation against the petitioner was of not taking effective steps for retiring Sri Sri Ram, an unskilled Khalasi on the date of his retirement and which according to the Board, amounted to gross negligence and misconduct by not providing the information in this regard. The petitioner has challenged the said order on grounds that the exercise of power under Rule 139 was beyond the parameters set out therein. Learned counsel submits that there are certain prerequisites to an exercise of power under Rule 139 and which are not satisfied in the case of the petitioner. It is submitted that the petitioner having superannuated with effect from 31.10.2004, his 3 pension and other pensionary benefits were sanctioned and paid by the competent authority and was approved up to the Board level. Learned counsel further submits that in the entire service career of the petitioner he was never charged with any minor or major punishment and in absence of any such circumstances the imposition of penalty under Rule 139 was completely illegal and arbitrary. Learned counsel further submits that no doubt Rule 139 (C) confers powers of revision of sanction of pension but this power is exercised only in case where an order sanctioning pension is passed by a subordinate authority. He submits that since the sanctioning order was approved up to the Board itself, as such Rule 139(C) could not be forced into play. Learned counsel further submits that for exercise of power under rule 139, the respondents have to demonstrate that the service of the petitioner throughout was not satisfactory and was tainted with misconduct. Mr. Vinay Kirti Singh, learned counsel representing the Board supports the impugned action taken by the Board resulting in the order of punishment, as impugned at Annexure-3 4 to the writ petition. In support of his contention learned counsel refers to the enclosures to the counter affidavit and submits that the petitioner was proceeded during service career and in which direction a show cause was issued as back as on 27.7.2004 requiring the petitioner to respond to the charges of allowing the person to continue even beyond his date of superannuation. Learned counsel thus submits that this was sufficient evidence that the services of the petitioner was not satisfactory and whose negligence had resulted in a pecuniary loss to the Board. I have considered the rival contentions advanced on behalf of the parties and have considered the materials on record. The exercise of power under Rule 43(b) of the Bihar Pension Rules and Rule 139 thereof are in two different circumstances. Whereas the proceeding under Rule 43(b) is initiated in circumstances where the employer is of an opinion that the petitioner is guilty of grave misconduct or has caused pecuniary loss to the State, the exercise of power under Rule 139 is in situation where the service of an employee is found to be not satisfactory. Undoubtedly 5 the respondents Board did not choose to exercise the power vested under rule 43(b) of the Rules, because neither the charges alleged against the petitioner was of having committed any grave misconduct nor it resulted in any pecuniary loss to the Board. The term ‘pecuniary loss’ mentioned in Rule 43(b) does not take within its ambit a salary paid to an employee for discharge of his duty. Nodoubt Sri Sri Ram, an unskilled Khalasi over stayed in service but the salary received by him was for the work discharged by him during the said period and was by way of remuneration as a re- compensation for the work done. It was certainly not in the strict sense of the term, a pecuniary loss incurred by the Board. May be the action of the petitioner indicated towards his inefficiency and negligence but for that he could have been proceeded under the classification Rules for imposition of penalties mentioned therein but in no circumstances that could be a ground for proceeding under the pension Rules. The case of the present kind is beyond the scope and ambit of Rule 139 and is fully covered by a decision of this Court reported 6 in 2004(3)PLJR 708. Having regard to the circumstances, the writ petition is allowed the impugned order as contained in Annexure-3 is set aside and the respondents are directed to remit the amount recovered from the retiral benefits of the petitioner within a period of three months from the date of receipt of a copy of the order. Needless to add that the petitioner would be entitled to full pension including the arrears thereof. The writ petition is allowed. Bibhash (Jyoti Saran, J. )