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Patna High Court

Rajendra Prasad RamversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
                 ======================================================
                 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

U


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