SHARDA PRASAD SINHA Vs. B S E B

JUDGEMENT

(1.) Heard the counsel for the petitioner and Bihar State Electricity Board.

(2.) The petitioner's case is that he retired on 31.7.1994 as the Deputy Director of Accounts from Barauni Thermal Power Station, Begusarai. After his retirement he was re-employed in service with effect from 7.2.1995 to 6.2.1996. During this period of re-employment no charge was levelled against him. Subsequently on 25.4.1996 a notice was issued to him whereby he was informed that a departmental proceeding has been initiated against him under Rule 43(b) of the Bihar Pension Rules. The memo of charges was served on him indicating that the proceeding has been initiated with respect to an event which took place in the month of March, 1992. Initiation of proceeding was challenged by the petitioner in CWJC No. 4940 of 1996. This writ application was allowed by order, dated 4.2.1998, and the departmental proceeding initiated under Section 43(b) of the Bihar Pension Rules was quashed. In the last line of the order it was observed that "quashing of the departmental proceeding will not stand in the way of the authorities to proceed under Section 139(a) of the Bihar Pension Rules". The Bihar State Electricity Board challenged the order passed in CWJC No. 4940 of 1996 in L.P.A. No. 446 of 1998. In the memo of appeal observation of the single Judge, giving liberty for initiation of proceeding under Section 139(a) of the Bihar Pension Rules was challenged as ground No. (V), i.e. "for that the observation made in the last paragraph giving liberty to the Board under Section 139(a) of the Bihar Pension Rules to proceed against respondent No. 1 is oblivious of the fact that the full pension had already been fixed and released by the Board on 27.7.1994 on the eve of superannuation of respondent No. 1 with effect from 1.8.1994 and therefore any action taken in this regard would again trigger of another round of litigation". The respondent Board even though challenged the order passed in the writ application in the L.P.A., simultaneously initiated a departmental proceeding against the petitioner under Section 139(a) of the Bihar Pension Rules, a show cause notice was issued to the petitioner on 8.6.2000 asking the petitioner to file his explanation as to why 20% of his pension may not be reduced from his pensionary benefit due to his unsatisfactory service. This was replied by the petitioner highlighting the legal position that initiation of proceeding was forbidden. Considering the fact that pension of the petitioner has been fixed on the eve of his superannuation on 1.8.1994, after so many years no such proceeding can be initiated against the petitioner. The respondent authorities vide another resolution No. 1060, dated 31.7.2002, again directed the petitioner to file a show cause as to why 20% of the pension amount be not deducted for the act committed by the petitioner. This was also replied and explained by the petitioner in his show cause, dated 26.8.2002. In his show cause petitioner stressed that the power to initiate such proceeding and to take recourse to the same, beyond the period of express limit as incorporated in Rule 139, was not admissible under the law. It was to the surprise of the petitioner when he received copies of two memos, i.e. memo No. 113 and 114, dated 22.1.2003, in the shape of a communication only, vide memo No. 113 pension order allowing full pension of Rs. 2, 538/- per month to the petitioner was reduced to Rs. 2,030/- per month with retrospective effect, applicable since 1.8.1994. By the next memo No. 114 enhanced revised pension of petitioner was modified and reduced to Rs. 5,341/- from Rs. 6,676/- with effect from 1.1.1996, It was also made applicable in respect of the commuted pension with effect from 4.8.1994. Petitioner receiving this two communications contacted the respondents and came to know that on the basis of show cause filed by the petitioner in respect of the initiation of proceeding under Rule 139(a) of the Pension Rules final orders have been passed which are contained in resolution No. 1446, dated 21.11.2002. By this order pension of the petitioner was reduced by twenty percent on permanent basis. Petitioner's case is that before issuing the orders vide memo No. 113 and 114 dated 22.1.2003. He was not given any reasonable opportunity regarding the proposed supersession of the preceding order of pension, dated 27.7.1994, and the revised pension order, dated 2.3.2004, were passed against the petitioner. He was not given an opportunity and order of reduction of pension was passed against him. Petitioner's prayer is for quashing these orders on the ground that they are highly unreasonable and outcome of an arbitrary action on the part of the respondents.

(3.) In the counter affidavit filed by the respondent Board preliminary objection has been raised regarding the maintainability of the writ application. It has been stated that as per the provisions, against the order of punishment, dated 21.11.2002, the petitioner should have filed an appeal under Rule 59-A of Civil Services (Classification, Control and Appeal) Rules, 1930. Since the petitioner has not availed the statutory alternative remedy of appeal before the Board and has approached directly to this Hon'ble Court, this writ application is not maintainable.