STATE OF BIHAR AND ORS.versusMOHD. IDRIS ANSARI

A                         STATE OF BIHAR AND ORS.
                                        v.
                            MOHD. IDRIS ANSARI

                                APRIL 25, 1995

B           [B.P. JEEVAN REDDY AND S.B. MAJMUDAR, JJ.]


         S e1Vice Law :

         Bihar Pension Rules : Rules 43 and 139
c       Departmental Enquiry-Employee-Alleged misconduct-Retire-
  ment-State Government-Power to reduce pension-Necessary conditions
  for-Held while exercising power under rule 139, rule 43(b) should be com-
  plied with-Notice under rule 139 for reducing pension-Misconduct relied on
  was prior to four years from the date of notice-Proceedings under rule 139
D held incompetent.
          The respondent, working in the Irrigation Department of the appel-
    lant State, was awarded punishment for certain financial irregularities
    committed by him during the period 1986-87. The High Court set aside the
    punishment order on the ground that it was passed in violation of the
E   principles of natural justice with liberty to the State Government to
    proceed afresh against the respondent. In the meanwhile the respondent
    retired from service with effect from 31.1.1993 and the State Government
    issued him a notice on 17.7.1993 for initiating fresh departmental proceed-
    ings. However, as no action could have been taken against the respondent
F   under rule 43(b) of the Bihar Pension Rules since the period of charges
    was prior to four years from the date of notice, the State Government
    issued another show cause notice dated 27.9.1993 under rule 139 proposing
    to deduct 70 per cent of his pension and passed final order on 13.12.1993
    withholding 70 per cent of pension payable to the respondent. The respon-
G   dent successfully challenged the notices dated 17.7.1993, 27.9.1993 and the
    order dated 13.12.1993 before the High Court.

          In appeal to this Court, it was contended on behalf of the appellant-
    State that the High Court was not justified in quashing the impugned
    notices and the final order withholding pension. Even if it be held that
H   there was no proof of misconduct established on record, the proceedings
                                        754
                    STATE OF BIHAR v. MOHD. IDRIS ANSARI                     755
      should have been sent back to the authorities for reconsideration of the A
      question and for arriving at proper findings in accordance with law.

            On behalf of the respondent it was contended that (i) the proceedings
      under Rule 139 were not initiated on the ground that the service record of
      the respondent was unsatisfactory bnt were initiated on the basis of mis-
      conduct for which there was no proof and, therefore, the order withholding B
      pension was not justified; (ii) there was no reason to remand the proceed-
      ings because the notice under Rule 139 relied on alleged misconduct com-

---   mitted during 1986-87 which was prior to four years from the date of notice
      and hence the notice was invalid and could not support any fresh proceed-
      ings.
                                                                                    c
            Dismissing the appeal, this Court

             HELD : 1. The decision of the High Court on the facts of the present
      case is unexceptionable. No case is made for interference in this appeal.
                                                                  [759-H, 764-Bl D
            2. A conjoint reading of Rule 43(b) and Rule 139 projects the follow-
      ing picture:- [762-E]

            I. A retired Government servant can be proceeded against under Rule
      139 and bis pension can be appropriately reduced if the sanctioning
      authority is satisfied that the service record of the respondent was not E
      thoroughly satisfactory. [762-E]

           II. Even if the service record of the concerned officer is found to be
      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 of the concerned officer during his service         F
      tenure, the State Government can exercise revisional power tQ reduce the
      pension but that revision is also subject to the rider that it should be
      exercised within 3 years from the date, an order sanctioning pension was
      first passed in his favour by the sanctioning authority and not beyond that
      period. [762-F, G]                                                            G
            So far as the second type of cases is concerned the proof of grave
      misconduct on the part of the concerned Government servant during his
      service tenure will have to be culled out by the revisional authority from the
      departmental proceedings or judicial proceedings which might have taken
      place during his service tenure or from departmental proceedings which H
                                                                                    r

    756                   SUPREME COURT REPORTS                  [1995] 3 S.C.R.

A may be initiated even after his retirement in such type of cases. But such
    departmental proceedings will have to comply with the requirements of               1
    Rule 43(b). Consequently a retired Government servant can be found guilty
    of grave misconduct during his senice career pursuant to the departmental
    proceedings conducted against him even after his retirement, but such
    proceedings could be initiated in <onnection with only such misconduct
B   which might have taken place within 4 years of the intiation of such
    departmental proceedings against him. [762-H, 763-A, BJ

        3. In the present case, the respondent retired on 31.1.1993 and the
  show cause notice was issued on the ground of grave misconduct on
C 27.9.1993 and not on the ground that service record of the pensioner was
  not thoroughly satisfactory. It was issued by the State Government as
  sanctioning authority. It has, 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 upto 31.1.1993 when respondent retired. On a
D 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 respon·
  dent prior to 4 years from the date on which 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 miscon·
E duct. Consequently, the proceedings under Rule 139 were wholly incom·
  petent. [763·C, D, F, GI

          4. The notice dated 17.7.1993 by which fresh departmental proceed·
    ings were sought to be initiated was rightly quashed by the High Court as
F   it was based on the alleged misconduct of the respondent during 1986-87
    which was more than four years prior to the issue of the said notice. Such
    a notice seeking to initiate fresh departmental proceedings after the retire·
    ment of the respondent, was clearly hit by the proviso to sub-rule (b) of
    Rule 43 of the Rules. [759-H, 760-A, BJ

G        5. The High Court was equally justified in quashing the final order
  dated 13.12.1993 as there is no proof of such a misconduct. No question
  of remanding the proceedings under Rule 139(a) and (b) would survive as
  the alleged grave misconduct could not be established in any departmental
  proceedings after expiry of four years from 1986-87 as such proceedings
H would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the
'\


             STATE OF BIHAR v. MOHD. IDRIS ANSARI [MAJMUDAR, J.]            757

     show cause notice dated 27.9.1993 will have to be treated as still born and A
     ineffective from its inception. Such a notice cannot be resorted to for
     support by any fresh proceedings by way of remand. [763-H, 764-A)

             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4970 of
     1995.
                                                                                  B
          From the Judgment and Order dated 7.4.94 of the Patna High Court
     in C.W.J.C. No. 8535 of 1993.

             S.B. Sanyal and Anil Kumar Jha for the Appellants.

             A.Sharna and Imtiaz Ahmad, E.C. Vidyasagar (NP) for the Respon·      C
     dent.

             The Judgment of the Court was delivered by

             MAJMUDAR, J. Leave granted.
                                                                                  D
            By consent of learned Advocates of parties, the appeal was heard
     finally and is being decided by this judgment. The appellant, State of Bihar
     and its Officers, have brought in challenge the order passed by a Division
     Bench of the Patna High Court allowing writ petition filed by the respon-
     dent herein. In the said writ petition, the respondent had challenged
     initiation of fresh }lepartmental proceedings against him by issuing a notice E
     dated 17.07.1993 and also a show cause notice dated 27.09.1993 calling
     upon the respondent to show cause as to why action should not be taken
     against him under Rule 139 of the Bihar Pension Rules (hereinafter
     referred to as 'the Rules') for withholding of 70 per cent of pension. He
     also challenged the final order dated 13.12.1993 passed in exercise of power
     under Rule 139 (a) and (b) of the Rules to withhold 70 per cent of pension. F
     All these challenges were upheld by the High Court. That is how these
     appellants are before us.

            A few relevant facts leading to this appeal may be noticed. At the
     relevant time in 1986-1987 the respondent was working in the Irrigation G
     Department of the appellant State. It was alleged that the respondent was
     involved in certain irregularities during his tenure under the Department.
     The Flying Squad of Irrigation Department made enquiries with regard to
     the allegation of irregularities committed by the respondent at Rewa Ghat,
     Maghaul, Sarangpur and other places of Saran Embankment during the
     period 1986-87. The Flying Squad in its report found some financial and H
    758                   SUPREME COURT REPORTS                  [1995] 3 S.C.R.

A other irregularities in the work done by the respondent at the aforesaid
  places. The Government of Bihar examined the report of the Flying Squad           l
  and it was found that the respondent was responsible for the irregularities
  as w.:ll as financial irregularities. The respondent's explanation was asked
  for. Ultimately it was found that the respondent was responsible for the
  irregularities and that excess rayment was made by the respondent to the
B concerned parties. The Government awarded punishment to the respon-
  dent as per its order dated 6.6.1992. The respondent challenged the said
  order in the High Court in C.W.J.C. No. 6696 of 1992. On 16.11.1992, the
  said writ petition was allowed. The High Court held that the principles of
  natural justice were violated by the authorities when they passed the
C impugned order. The copy of the report of the Flying Squad was not made
  available to the respondent. On that ground the impugned order dated
  6.6.1992 was quashed with liberty to the State Government to proceed
  afresh against the respondent. It was directed that the respondent was
  entitled to have copy of the papers upon which the authorities may rely
  and thereafter, pass the appropriate reasoned order in accordance with
D law. As a consequence of the said decision the order of punishment was
  set aside. Thereafter on 31.01.1993 the respondent reached the age of
  superannuation and retired from Government service. On 17.07.1993, the
  respondent was required to submit explanation regarding irregularities. For
  that purpose, he was served with a notice dated 17.07.1993. Before that
E notice could be processed further, a show cause notice was issued to the
  respondent on 27.09.1993 intimating to him that as he had already retired
  from service and the period of charges was prior to four years, no action
   could be taken against the respondent under R.ule 43(b) of the Rules and
  that the Government had decided to issue show cause notice under Rule
   139 of the Rules. He was called upon to show cause as to why deduction
F of 70 per cent of his pension should not be made. In fhe light of the said
   show cause notice, the appellant-State passed final order on 13.12.1993 in
   exercise of powers under Rule 139(a) and (b) withholding of 70 per cent
   of pension payable to the respondent. It may be mentioned at this stage
   that the respondent, in the meantime, had already filed Writ Petition No.
   8535 of 1993 in the Patna High Court challenging the earlier notice dated
G 17.07.1993. In the said writ petition by way of amendment, the respondent
   also challenged the subsequent show cause notice dated 27.09.1993 issued
   by the State authority under Rule 139 of the Rules. He also challenged the
   final order passed on 13.12.1993. As noted earlier, after hearing the parties,
   the High Court allowed the writ petition quashing these proceedings
H pursuant to the impugned notices dated 17.07.1993 and 27.09.1993 and also
      STATE OF BIHAR v. MOHD. IDRIS ANSARI iMAIMUDAR, J.]              759

final order dated 13.12.1993.                                                 A

      The learned Advocate appearing for the appellant contended that
Rule 139 of the Rules gives ample power to the said authorities to withhold
either wholly or in part pension of retired Government servant if require-
ments of the Rules were satisfied. In the present case, the service record
of the respondent was not satisfactory at all and he was also involved in B
grave misconduct during the time he was working in the Irrigation Depart-
ment. That is why his explanation was asked for pursuant to the show cause
notice dated 27.09.1993 for withholding 70 per cent of the pension. The
High Court was not justified in quashing the said notice and the final order.
The said order, was properly passed on the facts of the present case. In C
any case, if it is held agreeing with the High Court that there was no proof
of misconduct as established on record, then proceedings may be sent back
to the authorities for reconsideration of the question and for arriving. at
proper findings in accordance with law. That earlier notice dated
17.10.1987 was issued within the time permissible under Rule 43(b), and D
hence if the order dated 06.06.1992 was set aside by the High Court on
technical grounds, proceedings pursuant to earlier notice dated 17.10.1987
could be resumed from the stage at which they were found to be vitiated
in the earlier writ proceedings.

       The counsel for the respondent combated these submissions and          E
contended that the notice that initiated proceedings under Rule 139 did
not allege that power was sought to be exercised by the authority under
Rule 139 as service record was not thoroughly satisfactory. That power was
sought to be invoked only mi the basis of misconduct and there was no
proof of misconduct against the respondent which can justify the impugned     F
order of 13.12.1993. That there is no question of remanding of proceedings
against the respondent for the simple reason that the notice of 27.09.1993
relied on alleged misconduct of the respondent during 1986-87 which was
prior to four years from the date of the notice and hence, the notice was
invalid and could not support any fresh proceedings. The earlier proceed-
ings got terminated as per High Court's order. Hence even the earlier         G
notice dated 17.10.1987 did not survive.

     Having given our anxious considerations to these rival contentions,
we find that the decision of the High Court on the facts of the present case
is unexceptionable. The earlier notice dated 17.07.1993 by which fresh H
                                                                                     '
    760                     SUPREME COURT REPORTS                 [1995] 3 S.C.R.

A departmental proceedings were sought to be initiated was rightly quashed
    by the High Court as it was based on the alleged misconduct of the
    respondent during 1986-87 which was more than four years prior to the
    issue of the said notice. Such a notice seeking to initiate fresh departmental
    proceedings after the retirement of the respondent, was clearly hit by the
B   proviso to sub-rule (b) of Rule 43 of the Rules. Rule 43(b) reads as under:

            "(b) The State Government further reserve to themselves the right
            of withholding or withdrawing a pension or any part of it, whether
            permanently or for a specified period, and the right of ordering
            the recovery from a pension of the whole or part of any pecuniary
C           loss cause to Government if the pensioner is found in departmental
            or judicial proceedings to have been guilty of grave misconduct;
            or to have cause pecuniary loss to Government by misconduct or
            negligence during his service including service rendered on re-
            employment after retirement :

D         Provided that -

            (a) such departmental proceedings, if not instituted while the
            Government servant was on duty either before retirement or during
            re-employment;
E
            (i) shall not be instituted save with the sanction of the State
            Government;

             (ii) shall be in respect of an event which took place not more than
             four years before the institution of such proceedings; and
F
            (iii) shall be conducted by such authority and at such place or
            places as the State Government may direct and in accordance with
            the procedure applicable to proceedings on which an order of
            dismissal from service may be made;"

G         A mere look that these provisions shows that before the power under
    Rule 43(b) can be exercised in connection with the alleged misconduct of
    a retired Government servant, it must be shown that in departmental
    proceedings or judicial proceedings the concerned Government servant is
    found guilty of grave misconduct. This is also subject to the rider that such
H   departmental proceedings shall have to be in respect of misconduct which
          STATE OF BIHAR v. MOHD. IDRIS ANSARI [MAIMUDAR, J.]                 761

     took place not more than four year before the initiation of such proceed- A
    ings. It is, therefore, apparent that no departmental proceedings could have
    been initiated in 1993 against the respondent under Rule 43(a) and (b) in
     connection with the alleged misconduct, as it alleged to have taken place
    in the year 1986-87. As the aHeged misconduct by 1993 was at least six
    years old, Rule 43(b) was out of picture. Even the respondent authorities B
    accepted this legal position when they issued notice dated 27.09.1993. It
    was clearly stated therein that no action can be taken under Rule 43(b)
'

-   of the Rules as the period of charges has been old by more than four years.
    It is equally not possible for the authorities to rely on the earlier notice
    dated 17.10.1987 as proceedings pursuant to it were quashed by the High C
    Court in Writ Petition 6696 of 1991 and only liberty reserved to the
    respondent was to start fresh proceedings. The High Court did not permit
    the respondent to resume the earlier departmental inquiry pursuant to the
    notice date 17.10.1987 from the stage it got vitiated. The respondent also,
    therefore, did not rely upon the said notice dated 17.10.1987 but initiated
    fresh departmental inquiry by the impugned notice dated 27.09.1993. Con- D
    sequently it is not open to the learned Advocate for the appeHant to rely
    upon the said earlier notice dated 17.10.1987.

          There remains the question whether any assistance can be derived
    by the appeHant authorities from Rule 139 of the Rules. The said Rule 139 E
    reads as under :

           · "139(a). The full pension admissible under the rules is not to be
             given as a matter of course, or unless the service rendered has
             been really approved.
                                                                                     F
            (b) If the service has not been thoroughly satisfactory, the authority
            sanctioning the pension should make such reduction in the amount
            as it thinks proper.

            (c) The State Government reserve to themselves the powers of
            revising an order relating to pension passed by subordinate G
            authorities under their control, if they are 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. No such
            power shaH, however, be exercised without giving the pensioner
            concerned a reasonable opportunity of showing cause against the H
    762                  SUPREME COURT REPORTS                    [1995] 3 S.C.R.

A           action proposed to be taken in regard to his pension, or any such
            power shall be exercised after the expiry of three years from the
            date of the order sanctioning the pension was first passed."

        So far as that rule is concerned, it empowers the State authorities to
  decide the question whether full pension should be allowed to a retired
B Government servant or not in the circumstances contemplated by the Rule.
  The first circumstance is that if the service of the concerned Government
  servant is not found to be thoroughly satisfactory, appropriate reduction in
  the pension can be ordered by the sanctioning authority. The second
  circumstances is that if it is found that service of the pensioner was not
C thoroughly satisfactory or there is proof of grave misconduct on the part
  of concerned Government servant while in service, the State Government
  in exercise of revisional power may interfere with the fixation of pension
  by the subordinate authority. But such power flowing from Rule 139, under
  the aforesaid circumstances, is further hedged by two conditions. First
D condition is that revisional power has to be exercised in consonance with
  the principle of natural justice and secondly such revisional power can be
  exercised only within three years from the date of the sanctioning of the
  pension for the first time. A conjoint reading of Rule 43(b) and Rule 139
  projects the following picture :
E
          I. A retired government servant can be proceeded against under Rule
    139 and his pension can be appropriately reduced if the sanctioning
    authority is satisfied that the service record of the respondent was not
    thoroughly satisfactory.

F         II. Even if the service record of the concerned officer is found to be
    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 of the concerned officer during his service tenure, the
    State Government can exercise revisional power to reduce the pension but
G   that revision is also subject to the rider that it should be exercised within
    3 years from the date, an order sanctioning pension was first passed in his
    favour by the sanctioning authority and not beyond that period.

          So far as the second type of cases is concerned the proof of grave
H    misconduct on the part of the concerned Government servant during his
         STATE OFBIHAR v. MOHD. IDRIS ANSARI [MAIMUDAR,J.]              763

    service tenure will have to be culled out by the revisional authority from A
    the departmental proceedings or judicial proceedings which might have
    taken place during his service tenure or from departmental proceedings
    which may be initiated even after his retirement in such type of ca3es. But
    such departmental proceedings will have to comply with the requirements
    of Rule 43(b). Consequently a retired Government servant can be found B
    guilty of grave misconduct during his service career pursuant to the
    departmental proceedings conducted against him even after his retirement,
    but such proceedings could be initiated in connection with only such·
    misconduct which might have taken place within 4 years of the initiation
    of such departmental proceedings against him. In the present case, the C
    respondent retired on 31.1.1993 and the show cause notice was issued on
    the ground of grave misconduct on 27.09.1993 and not on the ground that
    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 miscon-
    duct if committed within 4 years prior to 27 .09 .1993 meaning thereby it D
    should have been committed during the period from 26.09.1989 upto
    31.01.1993 when respondent retired. Only in case of such a misconduct,
    departmental proceedings could have been initiated against the respondent
    under Rule 43(b). In such proceedings, if he was found guilty of miscon-
    duct he could have been properly proceeded against under Rule 139(a) E
    and (b). On the facts of the present case it must be held, agreeing with the
    High Court that the notice dated 27.09.1993 invoking powers under Rule
    139(a) and (b) was issued wholly on the ground of alleged past misconduct
    and was not based on the ground that service record of the respondent was
    not thoroughly satisfactory. So far as that ground was concerned, on a F
    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 show cause notice
    dated 27.09.1993 was issued, the appellant authority had no power to
    invoke Rule 139(a) and (b) against the respondent on the ground of G
    proved misconduct. Consequently, it had to be held that proceedings under
)   Rule 139 were wholly incompetent. The High Court was equally justified
    in quashing the final order dated 13.12.1993 as there is no proof of such a
    misconduct. No question of remanding the proceedings under Rule 139(a)
    and (b) would survive as the alleged grave misconduct could not be
                                                                              H
    764                  SUPREME COURT REPORTS                  [1995] 3 S.C.R.

A established in any departmental proceedings after expiry of four years from
    1986-87 as sucb proceedings would be clearly barred by Rule 43(b) proviso
    (a)(ii). Consequently the show cause notice dated 27.09.1993 will have to
    be treated as stillborn and ineffective from its inception. Such a notice
    cannot be resorted to for supporting any fresh proceedings by way of
B   remand. For all these reasons no case is made for our interference in this
    appeal. In the result appeal fails and is dismissed. There is no order as to
    costs.

    T.NA.                                                    Appeal dismissed.