Patna High Court
Rajendra Prasad RamversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- AJIT KUMAR
Holding
The order imposing a 10% pension deduction was illegal and is set aside, restoring the petitioner’s full pension.
Summary
The petitioner, a retired Technical Advisor, was served a show‑cause notice for alleged misconduct dating back to 2009 and subsequently had a 10% deduction imposed on his monthly pension for three years under Rule 139 of the Bihar Pension Rules, 1950. He contended that no formal departmental enquiry under Rule 43(b) was conducted, that the alleged misconduct fell outside the four‑year limitation prescribed by Rule 43(b), and that the State therefore lacked authority to reduce his pension. The State argued that the show‑cause notice sufficed for action. The Court, relying on the Supreme Court’s decision in State of Bihar v. Mohd. Idris Ansari and its own precedent in Kamla Sharan Singh v. State of Bihar, held that without a proper enquiry under Rule 43(b) and within the statutory time‑limit, the deduction was unlawful. Consequently, the order dated 19‑03‑2024 imposing the pension reduction was set aside and the petitioner’s full pension was ordered to be restored within six weeks. The writ petition was allowed.
Issues considered
- Whether a pension deduction under Rule 139 can be made without a departmental enquiry under Rule 43(b).
- Whether the four‑year limitation under Rule 43(b) bars action for alleged misconduct occurring in 2009.
- Whether the procedural requirements for reduction of pension under the Bihar Pension Rules, 1950 were complied with.
Legislation cited
- Bihar Pension Rules, 1950 — s. Rule 139, Rule 43(b)
- Civil Services (Classification, Control and Appeal) Rules — s. Rule 56(c)
Subjects
- pension reduction
- Rule 139
- Rule 43(b)
- departmental enquiry
- show‑cause notice
- statutory limitation
- civil service pension
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9546 of 2024
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Rajendra Prasad Ram Son of Ram Dihal Ram, R/o Subhkamna Colony, East
Laxmi Nagar, Khemnichak, Sampatchak, New Jaganpura, P.O.-
Khemnichack, P.S.- Ramkrishna Nagar, District- Patna. ... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Principal Secretary, Rural Work Department, Bihar, Patna.
3. The Special Secretary, Rural Works Department, Bihar, Patna.
4. The Officer on Special Duty, Rural Works Department, Bihar, Patna.
5. The Under Secretary, Rural Works Department, Bihar, Patna.
6. The Joint Secretary, Rural Works Department, Bihar, Patna.
7. The Chief Engineer, Rural Works Department, Bihar, Patna.
8. The Accountant General, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Abhash, Adv.
Mr. Pradhan Murli Manohar Prasad, Adv.
For the Respondent/s : Mr. S. Raza Ahmad, Addl. Advocate General (5)
For the Accountant General : Mr. Ram Kinker Choubey, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE AJIT KUMAR
ORAL ORDER
5 23-04-2026 Heard Mr. Abhash, learned counsel for the petitioner
and learned counsel for the Respondent/State.
2. The present writ petition has been preferred for
quashing the order as contained in Memo No. 816 dated
19.03.2024 passed by Joint Secretary whereby the petitioner has
been imposed penalty of deduction of 10% monthly pension for
three years under Rule 139 of the Bihar Pension Rules, 1950
(hereinafter referred to as ‘the Rules 1950’).
3. Learned counsel for the petitioner submits that the
petitioner superannuated from his service as Technical Advisor,
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Rural Works Department, Circle Bettiah on 31.01.2020. It is
next submitted that after retirement 90% provisional pension
and 90% provisional gratuity are said to have been sanctioned
vide letter no. 3844 dated 21.08.2020 w.e.f. 01.02.2020,
pursuant thereto, office of the Accountant General (A & E),
Bihar vide PPO No.202011011158PO and GPO No.
202011011158 authorized the provisional pension and
provisional gratuity.
4. Learned counsel for the petitioner submits that
Officer On Special Duty, R.W.D vide letter no. 358 dated
08.06.2018 had issued show-cause to the petitioner, while the
petitioner was in service for not following the provisions of
Bitumen Price Neutralization and the petitioner was directed to
submit his explanation within seven days. It is the case of the
petitioner that there was no formal enquiry or disciplinary
proceeding initiated during his service period rather various
show-causes were issued but formal decision to institute
departmental enquiry was never taken and even being
confronted with such legal question, the State counsel has not
produced any material to show that petitioner was ever placed
under departmental enquiry by appointing Inquiring Officer,
Presenting Officer as per Bihar CCA Rules, 2005, to carry out
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fact finding enquiry, while the notices continued to be issued,
even after his retirement, based on which the impugned decision
been taken whereas, owing to pendency of such show-cause
notices prior to passing of the impugned order, which is
appended with the writ petition as Annexures P/4, P/5 & P/6
being letter no. 2460 dated 10.10.2018, letter no. 348 dated
17.01.2020 and letter no. 1326 dated 10.08.2022 as contained in
letter no. 348 dated 17.01.2020, 10% of pension and pensionary
benefit is said to have been withheld by the respondents, while
no decision on his explanation to show was ever taken for
initiation of formal departmental enquiry.
5. It is further case of the petitioner that the Special
Secretary, Rural Works Department, Bihar, Patna vide Letter No.
1676 dated 03.08.2023 (Annexure P/7) by invoking the
provisions of Rule 139 of ‘the Rules’ without there being any
enquiry under Section 43(b) of the Bihar Pension Rules, 1950,
which could form basis to make appropriate deduction from
pension still issued a show-cause for making reasonable
deduction in the pension, of the petitioner. The petitioner is said
to have submitted his response dated 25.09.2023 to Special
Secretary, R.W.D, Bihar, Patna and after submission of the
show-cause, the impugned order as contained in Memo No. 816
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dated 19.03.2024 is said to have been passed whereby 10% of
monthly pension for three years has been directed to be
deducted from the petitioner by invoking the provisions of
Rules 139 of ‘the Rules 1950’.
6. It has next been submitted by the counsel for the
petitioner that without resorting to any procedures prescribed
under ‘the Rules 1950’ for an allegation of any misconduct of
the year 2009, which is beyond four years, the authorities were
estopped from taking any recourses under Rule 139 of Bihar
Pension Rules, 1950 for reduction of pension without any final
decision having been taken under 43(b) of the Bihar Pension
Rules, 1950 and as such, the proceedings so drawn under Rule
139 of the Bihar Pension Rule, vitiates in law in view of the law
laid down by the Hon’ble Apex Court in the case of State of
Bihar & Others v. Mohd. Idris Ansari [1995 Supp (3) SCC
56] . The relevant paragraph of the said judgment are herein
quoted below:-
“In the present case, the
respondent retired on 31-1-1993 and the
show-cause notice under Rule 139(a) & (b)
was issued on 27-9-1993 on the ground of
grave misconduct and not on the ground that
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service record of the pensioner was not
thoroughly satisfactory. It was issued by the
State Government as sanctioning authority.
It had, therefore, to be read with Rule 43(b).
Such notice therefore, could cover any
misconduct if committed within 4 years prior
to 27-9-1993 meaning thereby it should have
been committed during the period from 26-9-
1989 up-to 31-1-1993 when the respondent
retired. On a conjoint reading of Rule 43(b)
and Rule 139(a) there is no escape from the
conclusion that as the alleged misconduct
was committed by the respondent prior to 4
years from the date on which the show-cause
notice dated 27-9-1993 was issued, the
appellant authority had no power to invoke
Rule 139(a) and (b) against the respondent
on the ground of proved misconduct.
Consequently, it has to be held that
proceedings under Rule 139 were wholly
incompetent.”
7. Admittedly, the allegation is of the year 2009 and
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the show-cause issued under Rule 139 of ‘Bihar Pension Rules,
1950’ without aid of Rule 43(b) of ‘the Rules’ 1950 for making
reduction after his retirement is statutorily barred and final order
which is said to have been recorded in the year 2024, much after
15 years without any formal departmental enquiry which is
contained in Memo No. 816 dated 19.03.2024, appears to be
beyond justification.
8. Learned counsel by relying upon the judgment of
this Court passed in the case of Kamla Sharan Singh v. The
State of Bihar & Ors as reported in BLJ 2000(1) 688, submits
that the authorities could not invoke Rule 139(b) without aid of
Rule 43(b) of ‘the Rules’ 1950, which specifically provides for
withholding and withdrawing the pension or any part of it only
after a necessary finding in that regard is arrived at in a
departmental or judicial proceeding of a nature permissible
under Rule 43(b) of Bihar Pension Rules, 1950
9. In order to buttress his submission, learned counsel
for the petitioner relied upon paragraphs 5, 6 and 7 of the
aforesaid judgment which are as follows:-
“5. However, exercise of power
under Rule 139(b) must be done care-fully
and on the basis of entire service record of
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the pensioner. Such a power cannot be
permitted to be exercised in a, case where
particular charges have been levelled
against the employee concerned of
howsoever grave nature they may be but
where no finding could be arrived at in
accordance with permissible procedure of
departmental or judicial proceeding to hold
that there was no proofs of grave misconduct
on his part while in service. In other words,
the power under Rule 139(b) cannot replace
the power to withhold or withdraw pension
under Rule 43(b) of the Rules because the
latter explicitly provides for withholding or
withdrawing a pension or any part of it only
after necessary finding in that regard is
arrived at in a departmental or judicial
proceeding of a nature permissible under
Rule 43(b). To hold other-wise would render
the protection given to a pensioner under
Rule 43(b) meaningless and superfluous.
6. Rule 139 (c) no doubt gives
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power to the State Government to reduce
pension in case it is satisfied that the service
of the pensioner was not thoroughly
satisfactory or that there was proof of grave
misconduct on his part while in service. But
such power is only a revisional power and
use of the word "satisfy" shows that there
must be objective satisfaction on the basis of
relevant and cogent materials. In exercise of
such power by the State Government the
same principle should be applicable as have
been indicated above in connection with
exercise of power under Rule 139(b) by the
authority sanctioning pension, in all such
cases where the reduction in pension is
proposed on the ground that the service of
the pensioner was not thoroughly
satisfactory. So far as exercise of power
under Rule 139 (c) on the ground of there
being proof of grave misconduct against the
pensioner is concerned, such proof must
have been found in an appropriate
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departmental or judicial proceeding in
accordance with the service rules and Bihar
pension rules.
7. On the basis of aforesaid
submissions and discussions it has to be held
in this case that the order contained in
Annexure-12 is against the law and fit to be
quashed because the respondents failed to
show that the service record of the petitioner
was not thoroughly satisfactory. No such
finding has been given in Annexure-12 nor
such ground is mentioned in Annexure-10,
the show-cause notice although Rule 139(b)
has been mentioned therein. The submission
on behalf of the petitioner that no adverse
remarks were communicated to him during
his service tenure is also not disputed. As a
matter of fact the impugned action against
the petitioner is based upon a presumption
that there was proof of grave misconduct
against the petitioner. However, no such
finding arrived at in any departmental
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proceeding was ever communicated to the
petitioner nor there is any such finding in
any judicial proceeding. Such a finding or
proof, for taking action under the rules for
the purpose of reduction of pension must be
separately communicated to the pensioner so
that he may, if aggrieved, prefer an appeal
against such finding under Rule 56 (c) of the
Civil Services (Classification, Control and
Appeal) Rules wherever applicable.”
10. Learned counsel for the State, on the other hand,
by referring to the show-cause which is appended with the writ
petition as Annexure P/13, on being confronted with the legal
issues, very fairly submits that the letter by which the petitioner
was put to show-cause, is not a formal decision with regard to
initiation of departmental enquiry, which is restored to the
authorities under Rule 43(b) of ‘the Rules 1950’ to record a
finding of grave misconduct and pecuniary loss caused to the
State exchequer, which is a pre-requisite for taking any decision
under Rule 139 of ‘the Rules 1950’, wherein the pensioner is
required to be put to notice within a period of three years from
the date of sanction of pension and after providing reasonable
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opportunity of hearing to the delinquent, such modification or
revision in pension can be made.
11. Insofar as the judgment, which covers the issues
having been raised by this petitioner that without the aid of Rule
43(b) of ‘the Rules 1950’ which strictly bars the authorities from
initiating any departmental enquiry for an allegation being
beyond four years, which aspect of the matter has also not been
confronted by the State counsel, rather learned counsel for the
State fairly submits that in the instant case, admittedly, the
allegation is of the year 2009 and, as such, keeping in row the
dictum of the Hon’ble Apex Court in the case of Md. Idris
Ansari (supra) and the judgment passed by this Court rendered
in Kamla Sharan Singh (supra), the proceeding so initiated
cannot be justified in law.
12. Considering the submissions of the parties, this
Court finds that for an allegation of the year 2009, the petitioner
was put to show-cause without any formal departmental enquiry
under Rules 43(b) of Bihar Pension Rules, 1950, and after
seeking his response to such show-cause, the order of reduction
has been passed by invoking the powers under Rule 139 of ‘the
Rules’ which is in the teeth of judgment rendered by Hon’ble
Apex Court in the case of Md. Idris Ansari (supra) and the
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judgment of this Court passed in Kamla Sharan Singh (supra).
13. The enquiry with regard to the allegation of the
year 2009, which is strictly barred under 43(b) of ‘the Rules’,
the authorities could not have initiated enquiry under Rule 139
of the Bihar Pension Rules, 1950 and even putting this
petitioner to such show-cause was bad in law, and therefore, this
Court has no hesitation in interfering with the impugned action
which is contained in Memo No. 816 dated 19.03.2024,
whereby the petitioner has been imposed penalty of deduction
of 10% monthly pension for three years and accordingly, finding
such action to be in the teeth of statutory provisions which
governs the issues at hand and contrary to the law laid down by
the Hon’ble Apex Court and by this Court as referred above, the
order impugned as contained in Memo No. 816 dated
19.03.2024 is set aside and directs restoration of full pension of
this petitioner within a period of six weeks from the date of
receipt/production of a copy of this order.
14. The writ petition stands allowed.
(Ajit Kumar, J)
perwez
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