IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2072 of 2003 DR.JANARDAN PD.BHAGAT s/o Late Sri Raghu Nath Prasad Bhagat, r/o village and P.S. Tarapur, District Munger (since dead and substituted by heirs). Versus 1.THE STATE OF BIHAR 2.The Secretary Health and Family Welfare Department Bihar, Patna. 3.The Deputy Secretary cum Chief Vigilance officer, Health and Family Welfare Department, Bihar, Patna. 4.The Accountant General-II, Bihar, Patna. 5.The Branch Manager, UCO Bank, Tarapur, Munger. ----------- For the Peititoner : Mr. Yogendra Prasad Sinha, Advocate For the State : Government Pleader No. 7. ------------ P R E S E N T HON’BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (17.08.2010) 6. Mihir Kumar Jha, J. Heard counsel for the petitioner and counsel for the State. 2. Prayer of the deceased petitioner since substituted by his heirs on 12.8.2010 in this writ application reads as follows:- “That this writ petition is to quash the order dated 5.6.98 as contained in Annexure-4 to this writ petition by which 50% pension of the petitioner has been deducted as well as to quash the notice dated 11.1.2003 issued by Respondent no.5 for releasing the pension amount Rs.2608/- in stead of prevailing rate Rs.3445/- and for recovery of excess payment Rs.45,338/- to the petitioner as contained in Annexure-5 of this writ petition and the petitioner also seeks for appropriate writ, order, direction to the respondents authorities for other relief/ reliefs for not reduction the pension as well as for not recovery the pension amount to the petitioner.” 2 3. Mr. Yogendra Prasad Sinha, learned counsel appearing on behalf of the petitioner submits that the order of punishment as contained in Annexure-4 in fact would amount to reviewing the earlier order of punishment by which for the same misconduct the competent authority of the State Government had already passed order of punishment of withholding 2% of pension. He would accordingly submit that there being no power of review vested under Bihar Civil Services (Classification, Control & Appeal) Rules, 1930, (hereinafter referred to as the Rules) the aforesaid impugned order passed by the authority for reduction/stoppage of 50% pension is wholly without jurisdiction. 4. On the last date when this case was taken up and heard, learned counsel for the State had sought time to show relevant provision in the said Rule on the strength of which an order of punishment could be reviewed by the disciplinary authority for enhancing the punishment. Today, Mr. Choubey, G.P. 7 would submit that despite his letter sent to the authorities seeking instruction on the issue he has not received any reply. This Court would fail to understand as to what instruction Mr. Choubey had expected on the aforesaid sole point involved in the present case, which infact is, out and out, a pure question of law inasmuch as there is admittedly no power of review vested in the authority in the aforesaid Rules which only makes a provision of appeal and that too against an order of punishment. 5. In the present case final order in the name of Governor of Bihar was passed and issued on 6.4.1995 which reads as follows:- 3 “ fcgkj ljdkj LokLF; fe0 f”0 ,oa i0 d0 foHkkx ladYi MkW0 tuknZu izlkn Hkxr] lsok fuo`Rr] fe0 ink0 jktdh; vkS"k/kky; laxzkeiqj @eqaxsj@ ds fo:) dfri; vkjksiksa ds laca/k esa foHkkxh; dk;Zokgh pykbZ xbZ Fkh ftlds lapkyu inkf/kdkjh {ks=h; mifuns”d] Lok0 lsaok,sa Hkkxyiqj] ize.My] Hkkxyiqj] fu;qDr fd;s x;s Fks A 2&lapkyu inkf/kdkh ds izkIr vf/kxe ij lE;d fopkjksijkUr vkjksi izekf.kr gksus ds dkj.k MkW0 Hkxr ds isU”u ls nks izfr”r @2 izfr”r@ dh dVkSrh djus dj fu.kZ; fy;k x;k gS A 3&MkW0 Hkxr ds isU”u ls ;g dVkSrh LFkk;h :Ik ls dh tk;sxh A vkns”& vkns” fn;k tkrk gs fd bls fcgkj jkti= ds vxys vad esa izdkf”r fd;k tk; A fcgkj jkT;iky ds vkns” ls g0@& @v”ksd dqekj feJ@ ljdkj ds voj lfpo Kkikad& 18@,u& 01@94& 176 @18@ Lok0 iVuk] fnukad 6&4&95” 6. The aforesaid order dated 6.4.1995 is a duly authenticated final order in terms of the 1930 Rules which could not have been reviewed as has been actually sought to be done by the impugned order dated 5.6.1998, which also for the sake of clarity, is quoted hereinbelow:- “fcgkj ljdkj LokLF;] fe0 f”0 ,oa i0 d0 foHkkx vf/klwpuk iVuk] fnukad& Kki la0& 18@ , th&125@ 85@ Lok0 MkW0 tuknZu izlkn Hkxr rRdkyhu fpfdRlk inkf/kdkjh] jktdh; vkS"k/kky;] laxzkeiqj] eaqxsj fnukad& 01&03&84 dks lsok fuo`Rr gq, Fks A buds fo:) 1975 ds xEHkhj vkjksiksa ds dkj.k budh lsok lekfIr dk vkns” fuxZr fd;k tkuk Fkk ftldh Lohd`fr ekuuh; eq[;ea=h rFkk fcgkj yksd lsok vk;ksx ds }kjk dze”% fn0 04&10&76 ,oa 15&12&77 dks nh tk pqdh Fkh jkT; ljdkj ds miZ;qDr fu’p; dks dk;kZfUor ugha fd;k x;k Fkk A 2&lsok fuo`fRr ds mijkUr ewy lafpdk dh vuqiyC/krk dh fLFkfr esa MkW0 tukZnu izlkn Hkxr ds fo:) jkT; ljdkj ds miq;ZqDr fofu’p; dh tkudkjh ds vHkko esa 4 MkW0 tukZnu izlkn Hkxr dks isU”u ls ek= nks izfr”r dVkSrh dk n.Mkns” fn;k tk ldk Fkk A 3&ewy lafpdk miyC/k gksus ij fn0 02&08&96 dks jkT; ljdkj ds }kjk fu.kZ; fy;k x;k fd MkW0 tukZnu izlkn Hkxr ds isU”u ls 50 izfr”r dh dVkSrh dh tk; A fcgkj yksd lsok vk;ksx ds }kjk bl fu.kZ; dk dk;kZUo;u ds laca/k esa lgefr iznku dh xbZ gS A 4&vr% jkT; ljdkj ds lE;d fopkjksijkUr MkW0 tuknZu izlkn Hkxr ds laca/k esa iwoZ fuxZr ladYi la0& 176@18 fnukad 06&04&95 dks la”ksf/kr djrs gq, vkns” fn;k tkrk gs fd bl vf/klwpuk ds fuxZr gksus dh frfFk ls MkW0 tuknZu izlkn Hkxr ds isU”u ls 50 izfr”r dh dVkSrh dh tk; A fcgkj jkT;iky ds vkns”kuqlkj g0& ,e0 ,e0 pkS/kjh milfpo lg eq0 fu0 ink0 fcgkj Kkikad& 598 @18@& Lok0] iVuk fnukad& 05&06&98” 7. From reading of the aforesaid impugned order, the only ground which can be found for enhancing the quantum of the amount withholding/reduction of pension from 2% to 50% of the deceased petitioner is the absence of relevant file which by itself cannot be a ground for review. 8. It is true that this Court and the Apex Court in some cases have sustained certain order of review of punishment in exceptional cases but the position in law still remains the same that in absence of power of review an order of punishment once passed and given effect to, cannot be enhanced to the detriment of the delinquent. This aspect of the matter in fact stands settled by a Division Bench Judgment of this Court in the case of „Bihar State Electricity Board Vs. Braj Mohan Prasad’ reported in 2004(2) P.L.J.R. 291, wherein it was held that :- “It cannot be laid down as absolute proposition of law that in absence of the Rule in no case the authority can 5 review or revise the earlier order passed in a concluded departmental proceeding. The situation may arise whether the earlier order has been passed either in total breach of principles of natural justice or in breach of the Rules regarding conduct of the disciplinary proceeding or is based on forged and fabricated documents or suppression of material evidence. In such a situation second enquiry is not barred. But in absence of rule, the authority cannot have power to reopen the concluded departmental proceeding only for the purpose of reconsideration of the matter on the ground that on reconsideration a different view could be taken or that after a second thought a decision has been taken to reopen the proceeding. In the case of State of Assam and others Vs. J.N. Roy Biswas, reported in (AIR 1975 S.C. 2277) the Rule did not permit to reopen finally concluded departmental proceeding. Dealing with the said matter the Apex Court held that in absence of the Rule once a Disciplinary proceeding concluded and employee has been exonerated the proceeding cannot be reopened or reviewed except in special circumstances showing deadly defect on the record i.e. if some technical and other procedural or other good ground or infirmities were there in the earlier proceeding. In this connection it is useful to refer paragraph 4 of the judgment which runs as follows: “We may however make it clear that no Government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official re-instated, presumably on full 6 exoneration, a chagrined Government cannot re-start the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is appearing on the record.” 9. Admittedly, in the present case also the same misconduct was gone into by the authority while passing the earlier order of punishment against the petitioner seeking to reduce 2% of his pension and therefore, this Court would find it difficult to sustain the subsequent impugned order passed by way of enhancing quantum of reduction of pension from 2% to 50%, only on the ground of misplacement or reappearance of the file specially when there is also nothing to show that the earlier order had been passed either in total breach of principles of natural justice or in breach of the Rules regarding conduct of the disciplinary proceeding or is based on forged and fabricated documents or suppression of material evidence. 10. Consequently, following the ratio of the case of Braj Mohan Prasad (Supra), this Court will have no option but to quash the subsequent order of punishment dated 5.6.1998 (Annexure-4). In view of the fact that the impugned order dated 5.6.1998 (Annexure-4) has already been quashed by this Court, the consequential order passed by the UCO Bank as contained in Annexure-5 seeking to recover the amount of Rs.45,338/- is also 7 quashed and the said Bank is directed to refund the said amount of Rs.45,338/- to the heirs of the deceased petitioner within a period of three months from the date of receipt/production of a copy of this order. 11. Additionally, this Court would also direct the respondents to release the arrears of balance amount 48% from 1.1.2003 onwards and till the death of the original petitioner on 10.6.2010 and this exercise by way of payment of arrears of 48% pension of the petitioner to his heirs must be completed within a period of three months from the date of receipt of this order. It is further clarified that the widow of the petitioner from 11.6.2010 shall be paid her family pension at the rate of 98% pension of the petitioner by giving effect to earlier order of punishment of stoppage of only 2% of his Pension. Necessary steps in this regard must be taken by the Office of the Accountant General within a period of one month from the date of receipt/production of a copy of this order. 12. With the aforementioned observations and directions this writ application to the extent indicated above, is allowed. There would be however no order as to costs. Patna High Court Dated the 17th August 2010 NAFR/Abhay Kumar ( Mihir Kumar Jha, J.)