STATE OF BIHAR Vs. UDAI SHANKAR PRASAD

JUDGEMENT

(1.) SHIVA Kirti Singh and Rekha Kumari JJ.

(2.) HEARD the parties. This letters patent appeal has been preferred by the State of Bihar against the Judgment and Order dated, 5th January, 2000 whereby the wit Court has allowed the claim of the writ Petitioner (Respondent No. 1 to this appeal) and has quashed Order dated, 2nd November, 1996 whereby the Government had reduced the pension of the Petitioner to zero per cent on the basis of findings of mis -conduct in a disciplinary proceeding initiated much before the retirement of the Petitioner on 31st May, 1994, on the ground that power under Rule 139(a) and (b) of the Bihar Pension Rules (hereinafter referred to as 'the Rules ') could not be invoked by the Government to reduce the pension on the basis of findings in a departmental proceeding which remained pending till the date of retirement of the Petitioner. Learned Counsel for the Appellant/State has submitted that the relevant rule which shall govern this case ie. Rule 43(b) of the Rules permits continuation of a disciplinary proceeding against a delinquent employee even after his superannuation but the Final Order has to be in accordance with the provisions of the rules. To support the aforesaid submission he has placed reliance upon a Full Bench Judgment of this Court in the case of Shambhu Sharan V/s. The State of Bihar, 2000 1 PUR 665. It has further been submitted that on a conjoint reading of Rule 43(b) and Rule 139(a) and (b) of the Rules the State Government has sufficient powers to withhold pension or a part of it on the basis of proved mis -conduct as indicated in Rule 43(b) of the Rules. He has further submitted that even if Rule 43(b) of the Rules is not mentioned in the impugned Order such omission will not affect the power of the State Government because the law is well settled that labeling is not important provided the Authority has the requisite power under the law. On behalf of writ Petitioner (Respondent No. 2 to this appeal) it has been submitted that the disciplinary proceeding was kept pending for a very long period without any justification and the findings of the conducting officer indicate that other officers of the department were also partly responsible for the lapses and some of the charges do not relate to financial irregularities. Hence, it has been submitted that since Petitioner had a satisfactory service records except the disciplinary proceeding in question, the authorities of the of the State Government were not justified in withholding his entire pension under Rule 139(a) and (b) of the Rules. Lastly, it has been submitted that the authorities have not acted in a fair manner in reducing the pension of the Petitioner to zero per cent when they have themselves given a Show Cause Notice to the Petitioner on 27th January, 1995 vide annexure -19 to the Writ Petition as to why his pension should not be reduced to 50 per cent. It appears that by a subsequent notice dated, 11th June, 1996 (Annexure -22 to the Writ Petition) the writ Petitioner was asked to show cause as to why his pension be not reduced to zero per cent. There is no material on record to show that there was any fresh material available for consideration of the authorities to change their mind and make out a fresh proposal for reducing the pension of the Petitioner to zero per cent instead of 50 per cent.

(3.) LEARNED Counsel for the writ Petitioner has also placed reliance upon a Judgment of the Supreme Court in the case of State of Bihar V/s. Idrish Ansari, 1995 2 PLJR 51 (SC). On going through the said Judgment it is noticed that the facts of that case were entirely different and the issue involved was whether after retirement of the employee a proceeding was possible to be initiated for reduction of his/her pension against the limitation of four years provided under the Rules. In fact the discussions made in paragraphs 8 and 9 of that Judgment based upon a conjoint reading of Rule 43(b) and Rule 139 of the Rules indicates that the Apex Court held that even if the service records of the concerned officer is found thoroughly satisfactory by the sanctioning Authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct against the concerned officer during his service tenure, the State Government can exercise its revisional power to reduce the pension but as provided in Rule 139 such revision should be exercised within three years from the Order sanctioning pension was first passed. On a careful reading of the said Judgment we find that the same is in agreement with the views expressed by the Full Bench of this Court in the case of Shambhu Saran (supra) that a disciplinary proceeding initiated prior to superannuation can be continued under the provisions of the Rules without requiring any specific Order for such continuation.