Letters Patent Appeal No.1568 OF 1999 ***** Against the judgment and order dated 12th November, 1999 passed by the learned Single Judge in CWJC No. 7519 of 1998. ***** RAM MANI DEVI & ORS----------------------------------Appellants Versus THE STATE OF BIHAR & ORS------------------Respondents ***** For the Appellant:- Mr Manoj Kumar and Mr Raj Narayan Mishra, Advocates. For the State:- Mr. Siddhartha Prasad, JC to AAG-9. ***** P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh and C.M. Prasad, JJ.- Heard learned counsel for the parties. During the pendency of the appeal, appellant died and, accordingly, an application has been filed for substitution of the appellant by his heirs and legal representatives. The said application is allowed and, accordingly, the original appellant stands substituted by the applicants, who made I.A. No. 3737/2008. The original appellant, an Executive Engineer of the State of Bihar faced two proceedings, one initiated under Section 55 and another under Section 55A of the Civil Services (Classification, Control & Appeal) Rules, while he was in - 2 - service. Although certain progress had been made in these proceedings but they could not be concluded finally by passing a final order concluding those proceedings during the time the original appellant was in service. Prior to his death, a show cause was served upon the original appellant whereby it was proposed that the pension of the original appellant shall stand reduced to 50% of his entitlement, inasmuch as his services were found not satisfactory throughout in terms of Clauses (a) & (b) of Rule 139 of Bihar Pension Rules. In the show cause it was indicated that there are three elements on which it has been, prima facie, held that the services of the original appellant were not satisfactory throughout his service tenure. Two of these elements were those two proceedings, referred to above, which were not concluded. The other one was a punishment order dated 21st May, 1995 awarded against the original appellant stopping his promotion for three years. The original appellant gave a reply to the show cause and thereupon by an order dated 30th April, 1998, the State Government reduced the pension of the original appellant to the extent of 50% in purported exercise of power under Rule 139 (a) & (b) of the said Rules. - 3 - The said order was challenged by the original appellant by filing a writ petition. A learned Single Judge of this Court noticed that the Government has decided that before exercising power under Clauses (a) & (b) of Rule 139 of the said Rules, a show cause is required to be issued to the person, who is likely to be affected, and, in the instant case, such a show cause was issued and, accordingly, there is nothing further to be done. Clauses (a) & (b) of Rule 139 of the said Rules are as follows:- “(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 proper.” A meaningful reading of Clauses (a) & (b) of Rule 139 of the said Rules would make it amply clear that Clause (a) of said Rule demonstrates that pension under the said Rules is not given as a matter of course and that the same can only be given upon rendering approved service. Clause (b) of Rule 139 says that if the service rendered has not been thoroughly satisfactory, the quantum of pension otherwise payable in accordance with the said Rules may be reduced. - 4 - Therefore, in order to reduce the quantum of pension in exercise of powers under Clauses (a) & (b) of Rule 139, it must be shown that the approved service rendered has not been thoroughly satisfactory. From the show cause, referred to above, it appears that the Government was of the view that the approved service rendered by the original appellant was not thoroughly satisfactory in view of his involvement in three separate incidents during three different periods resulting in initiation of disciplinary proceedings. There is no dispute that three such disciplinary proceedings were initiated and one of them was concluded against the original appellant awarding a punishment against him of stoppage of promotion for three years but, in law, the other two departmental proceedings were not concluded, instead the Government purported to hold out in exercise of powers under Rule 139 (a) & (b) of the said Rules that the actions of the original appellant complained of in those departmental proceedings suggest that his approved service was not satisfactory. This is not permissible. The Government can hold out that services rendered by an employee are not satisfactory in view of matters brought on record during his service career. It could be said that the confidential reports of the original appellant - 5 - were so bad all throughout, that the same depict that the original appellant did not render satisfactory service during his tenure, but the Government could not impute unjust and improper action on the part of the original appellant without giving the original appellant an opportunity to defend himself against such imputations. In the instant case, as aforesaid, two disciplinary proceedings, containing imputations, had been initiated against the original appellant, though ultimate conclusion in relation thereto could not be reached after giving an opportunity of hearing to the original appellant before his retirement, but nothing prevented the State to be concluded the same under Rule 43(b) of the said Rules. Without taking recourse to the mandatory provisions of law, the Government unilaterally and behind the back of the original appellant could not opine that the imputations, as made by it, stand approved because it believes the same to be correct. In such circumstances the logical conclusion would be that in law there was only one instance of unsatisfactory service of the original appellant and that was the order of punishment stopping promotion for three years. Such an order does not reflect unsatisfactory service all throughout, which is a sin qua non of Clause (b) of Rule 139 of the said Rules. In the - 6 - circumstances the conclusion would be that there was no material to exercise power under Clauses (a) & (b) of Rule 139 of the said Rules and, at least, no such material was brought on record on the show cause, which, according to the Government, is a condition precedent for exercise of power under Clauses (a) & (b) of Rule 139 of the said Rules. Any decision taken on the basis of such a show cause has no legal effect. We, accordingly, allow the appeal, set aside the judgment and order under appeal, allow the writ petition and quash the order dated 30th April, 1998 and direct the Government to settle the pension of the original appellant in accordance with law and family pension of the appellants. ( Barin Ghosh, J. ) ( Chandra Mohan Prasad, J. ) PATNA HIGH COURT. THE 25TH JULY, 2008. NAFR DK.