IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3559 of 1998 JUGAL KISHORE SINGH, SON OF LATE SRI BHAGWAN SINGH, RESIDENT OF MOHALLA CHANDPUR BELA, POLICE STATION CHAKANPUR, DISTRICT – PATNA. ………. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE SECRETARY, MINOR IRRIGATION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE DEPUTY SECRETARY, MINOR IRRIGATION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. THE DEPUTY SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 6. THE UNDER SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. ……… RESPONDENTS. ----------- FOR THE PETITIONER : - MR. SIYA RAM SHAHI, ADVOCATE MRS. SHALLY KUMARI, ADVOCATE FOR THE STATE : - MR. RANJAN KUMAR, AC TO MR. J.P. KARN, AAG -4. ------------------ 05/ 24.03.2011 Heard counsel for the petitioner and counsel appearing for the State. The writ application was filed by the petitioner, initially for quashing of order No. 996 dated 13.9.1997 issued under the signature of Respondent No. 5, communicated to petitioner vide Memo No. 2899 dated 13.9.1997, whereby 100% pension and gratuity of petitioner have been withheld by way of punishment in a departmental proceeding. Further prayer was for quashing of order No. 401 dated 26.2.1998 communicated vide Memo No. 834 2 dated 26.2.1998, whereby Respondent No. 5 passed an order regarding non-payment of salary and other financial benefits to the petitioner, for the period of suspension 3.7.1990 to 31.10.1992, except the subsistence allowance, though period of suspension was made countable for pension and pensionary benefits. Petitioner had also prayed for quashing of show cause notice issued under Section 139 (A) and (B) of Bihar Pension Rules, under the signature of Under Secretary, Water Resources Department, Govt. of Bihar as to why his pension and gratuity should not be fixed as ‘0’. During the pendency of the writ application, final order was passed fixing pension and gratuity of petitioner as ‘0’, as such I.A. No. 1264 of 1999 was filed by the petitioner for quashing of order contained in Memo No. 4281 dated 17.12.1998 (Annexure-20). Petitioner was appointed as Junior Engineer in Minor Irrigation Department (Agriculture) in the year, 1962. In the year, 1980 he was transferred and posted as S.D.O. in Minor Irrigation Sub-Division, Simdega under Simdega Division. He continued 3 there till 1983 and thereafter was posted as S.D.O., Simdega Division, where he remained up to 1986. During the period 1984-86 a minor irrigation project, namely, Rani Kuder Medium Irrigation Scheme was started in Simdega Division. Petitioner as an Assistant Engineer along with Executive Engineer and other officials supervised the project. The project started in the year, 1984 and was completed in the month of June, 1985. Cost of this project was 4.98 lakhs. Petitioner was transferred from Simdega in the year, 1986. Petitioner was put under suspension vide order dated 3.7.1990 in contemplation of a disciplinary proceeding, as a resolution had been taken at the departmental level to initiate disciplinary proceeding against all Engineers, connected with the construction of Rani Kuder Medium Irrigation Scheme. A departmental proceeding under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1950 was initiated against the petitioner by furnishing charge sheet on 14.9.1990. One L.S. Prasad, Chief Engineer, Master Planning was appointed as Conducting Officer. The charges as disclosed in 4 charge sheet were (i) the construction of crest as per the approved design should have been 140 feets but it was constructed up to 125 feets; (ii) the base width of crest being only 5 feet was insufficient; and (iii) the packing of mortar was not as per the specification. Allegation was that due to all these reasons, the spill and crest of the constructed project got damaged. The petitioner submitted his show-cause denying the charge relating to length of the spills, stating that the construction was made as per approved design under the direction and supervision of Executive Engineer. On completion of project the work was found satisfactory by the Inspecting team. Regarding the deficiency in packing of mortar it was stated by the petitioner in his show cause that there was no direction of the department for testing of the packing of mortar and there was no provision also available for its’ testing. It was also stated that in case there would have been any fault in the construction of project, it would have got damaged immediately after its construction. The construction was completed in the year, 1985 and after three years on account of 5 unprecedented heavy rain fall, the construction was partially damaged. The petitioner cannot be held responsible for it. The Conducting Officer submitted his report vide letter No. 1762 dated 29.12.1992. The petitioner was exonerated from two major charges. Only an observation was made that the petitioner should have obtained written order from the higher authority like Superintending Engineer, if any change was required in the approved design. The direction of the Executive Engineer should not have been followed, as he was not competent for making any change in the approved design. The Enquiry Officer was of this view that the damage has not been caused due to faulty construction but it was on account of unprecedented heavy rain fall. The opinion of the Enquiry Officer relating to deficiency in packing of mortar was that the petitioner was not vigilant, he failed to discharge his duty properly. For this charge the Enquiry Officer recommended for awarding minor punishment of warning to the petitioner. The recommendation made by the Enquiry Officer was 6 placed before Additional Secretary of Water Resources Department (parent department of the petitioner), who also approved it. The Additional Secretary placed it before the Minister concerned and the recommendation of Enquiry Officer was approved also at the ministerial level. However, the Deputy Secretary, Minor Irrigation Department, Govt. of Bihar being the Disciplinary Authority disagreed with the finding recorded by the Enquiry Officer and issued second show cause notice vide letter dated 10.5.1994 with the proposed punishment of dismissal from service. In the second show cause, reason for disagreement with the finding recorded by the Enquiry Officer was not disclosed. The petitioner submitted his second show cause stating that since, the reason for disagreement has not been disclosed in the second show cause notice, petitioner is not in a position to know the reason for awarding proposed serious punishment. The petitioner superannuated on 31.1.1997 before any final order could have been passed. However, the disciplinary proceeding was converted under Rule 43(b) of the Pension Rules and 7 vide order No. 996 dated 13.9.1997, punishment of withholding 100% pension and gratuity was awarded to the petitioner. Additional punishment was awarded subsequently vide order dated 26.2.1998, debarring the petitioner from receiving any salary or financial benefit, for the period of suspension, except subsistence allowance. Show cause notice was also issued to the petitioner under Rule 139 (A) and (B) of the Bihar Pension Rules for fixing his pension and gratuity as ‘0’ and finally without considering the show cause of petitioner regarding maintainability of such notice, petitioner’s pension and gratuity was fixed as ‘0’ vide order contained in Annexure-20. Challenging the order of punishment, the counsel for the petitioner submits that in case disciplinary authority disagreed with the finding recorded by the Enquiry Officer, it was mandatory that he should have recorded tentative reasons for such disagreement, so that the delinquent officer could have got on opportunity to represent before the disciplinary authority and persuade him to accept the favourable conclusion of the Enquiry Officer. The 8 only object of issuing second show cause notice is to give an opportunity to the delinquent to defend himself in case of such disagreement. Since it was not done, the reason for imposing a major penalty and the issuance of second show cause was an empty formality. On account of non-disclosure of reason for disagreement by the disciplinary authority, grave prejudice has been caused to the petitioner resulting into injustice. In support of this contention, reliance has been placed on a decision reported in 1998 (7) SCC 84 (Punjab National Bank and others Vs. Kunj Behari Misra). Counsel for the State is unable to show that the disciplinary authority has disclosed any reason for disagreement with the enquiry report exonerating the petitioner from almost all charges. I find substance in the submission made by the counsel for the petitioner that on account of non- disclosure of the reason for disagreement with the enquiry report the major punishment awarded to the petitioner is in violation of rule of natural justice. Counsel for the petitioner has also assailed 9 the impugned order of punishment on the ground that Respondent No. 5 has imposed punishment for such charges for which no departmental proceeding was initiated. The departmental proceeding had been initiated only with respect to Rani Kuder Medium Irrigation Scheme. But punishment has been awarded for dereliction of duty in relation to two more projects i.e. (ii) Kurpani Medium Irrigation Scheme and (iii) Ranighagh Medium Irrigation Scheme. On perusal of the impugned order it is apparent that the petitioner has been awarded punishment of withholding of 100% pension and gratuity for such charges in relation to which disciplinary proceeding had never been initiated. The petitioner was awarded major punishment without giving any opportunity to defend him, which is completely illegal and in violation of the rules relating to departmental proceeding. Counsel for the petitioner has further submitted that the Enquiry Officer had exonerated the petitioner from two major charges. So far the charge relating to change in packing of mortar is concerned, 10 the Enquiry Officer came to this conclusion, placing reliance on two letters of the Cabinet Vigilance Department. These letters were never supplied to the petitioner. The sample of mortar from the site of damaged construction, had also not been collected in the presence of the petitioner. Since the relevant documents relied upon by the department for proving this charge was not supplied to the petitioner, it could not be deemed to be found proved. The petitioner was not given opportunity to examine the documents and cross-examine the person, who was the maker of such document. For proving charges it was essential that the delinquent should have been given proper opportunity. In support of this submission, reliance has been placed on a decision reported in 1994(2) PLJR, page 861 (Rampher Yadav Vs. The Union of India and others). In para 10 of judgment it has been discussed as follows:- “In the case of State of Punjab vs. Dewan Chuni Lal (AIR 1970 SC 2086) the Supreme Court while considering the scope of grant of reasonable opportunity 11 held that if the charges are based on adverse report of superior officer, who was not examined by the department, the delinquent was deprived of the reasonable opportunity of cross- examining him and thus, the order of dismissal was held to be not legal. In my opinion, the same principle would also apply where enquiry officer/Disciplinary Authority relies on the statement of some one who has not been examined by the department as witness in the departmental proceeding.” It has also been submitted by the petitioner’s counsel that the order, whereby salary of the petitioner for the period of suspension has been withheld is completely in violation of Rule 97 of the Bihar Service Code. Before awarding this punishment, mandatory notice is required, giving opportunity to show cause. But, without informing the petitioner that he will not be entitled for any salary for the period of suspension, order No. 401 12 dated 26.2.1998 was passed. This order was completely in violation of Rule 97. Since it was passed against the retired government employee, and Rule 97 has no application in case of a retired government employee. Counsel for the petitioner has further contended that order passed under Rule 139 (A) and (B) of the Bihar Pension Rules vide Memo No. 4281 dated 17.12.1998 is apparently illegal and without jurisdiction. By this order the pension and gratuity of the petitioner has been fixed as ‘0’. Rule 139 of the Bihar Pension Rules provide that any government servant is not entitled for 100% pension as a matter of right, unless his past service is found to be satisfactory. In case, he is held guilty for any misconduct, his pension already fixed by the subordinate authority can be revised by the superior authority. Revision of pension is subject to fulfillment of some pre-conditions;- (i) past service should not be satisfactory; (ii) pension must have been fixed finally by the subordinate authority; and (iii) notice in this regard is issued to the superannuated employee and 13 the date of fixation of pension must not have been beyond the period of three years from the date of issuance of such notice. In case of petitioner none of these pre- conditions were present. Petitioner’s pension had never been fixed by the subordinate authority. His 100% pension and gratuity has already been withheld in the departmental proceeding, as such nothing was left to be further reduced or revised. Petitioner had retired in the year, 1997 and his pension was not fixed till the date final order was passed in exercise of provision under Rule 139 (A) and (B) of the Bihar Pension Rules. On consideration of submissions made by the petitioner and the counsel appearing for the State, I find that major punishment was awarded to the petitioner completely in violation of rule of natural justice. The finding recorded by the Enquiry Officer had been approved by the parent department up to the Ministerial level, despite this fact disciplinary authority of the deputationist department, imposed major punishment to the petitioner, without disclosing 14 the reason for his disagreement with the finding recorded by the Enquiry Officer. The payment of arrears of salary for the period of suspension has been withheld in violation of the provisions under Rule 97 of the Bihar Service Code and the pension and gratuity has been fixed as ‘0’, without considering that final pension of the petitioner had not been fixed by the subordinate authority. The pension of the petitioner had been fixed as ‘0’ much beyond the three years’ period, as such this could not have been a ground for considering that the past service of the petitioner was not satisfactory. For all these reasons, I find that the following impugned orders are fit to be quashed:- (i) Order No. 996 dated 13.9.1997 withholding of 100% pension and gratuity of the petitioner; (ii) Order No. 401 dated 26.2.1998, whereby the petitioner was debarred from receiving the salary for the period of suspension; and (iii) Order contained in Memo No. 4281 15 dated 17.12.1998, whereby the pension and gratuity of the petitioner has been fixed as ‘0’. The Respondents are directed to make payment of arrears of salary to the petitioner for the period of suspension, for fixing the pension of the petitioner and for payment of arrears of pension as well as other pensionary benefits and full gratuity within twelve weeks from the date of production/communication of the order. This application is allowed. DKS/ (Mridula Mishra, J.)