Rai Vs. Jharkhand State Electricity Board & Ors  Insc 158 (9 March 2005)
Bhan & Dr. Ar. Lakshmanan
out of S.L.P.(C) No. 15469 of 2003) Dr. AR. Lakshmanan, J.
appeal is directed against the final judgment and order dated 10.4.2003 passed
by the High Court of Jharkhand, Ranchi in L.P.A. No. 88 of 2003 dismissing the appeal filed by the appellant
against the judgment and order dated 19.12.2002 passed by the learned single
Judge in W.P.(S) No. 3159 of 2001.
proceeding to consider the matter on merits, the facts can be stated briefly
for the purpose of the present appeal.
appellant is an ex-employee of the respondent-Board. He retired on 28.2.1998
from the post of Foreman, Grade I. The appellant after retirement did not
choose to vacate the Board's quarter. He initially moved before the High Court
in C.W.J.C.No. 1405 of 1998(R) wherein the High Court by order dated 19.2.1999
directed the appellant to vacate the quarter within one month from the date of
receipt of the retiral benefits. Thereafter, the appellant having not vacated
the Board's quarter, the High Court vide order dated 31.8.1999 by which date
all retiral benefits including gratuity stood paid, directed the appellant to
vacate the Board's quarter by 30.9.1999 as per the earlier order.
appellant even thereafter did not choose to vacate the quarter and filed a
petition for extension of period. The High Court, taking humanitarian view,
extended the period up to 1.11.1999 vide order dated 4.10.1999 and directed the
appellant to vacate the Board's quarter by 1.11.1999 observing as under:
taking a humanitarian view of the matter, this Court, as a matter of last
chance, extends the time. Under the order of this Court passed today, the
petitioner is directed to vacate the quarter in question by 1st November, 1999. It is made clear that if the
petitioner does not vacate the quarter by that date, the respondents are
entitled to take, if necessary, the help of the police." The appellant
being not satisfied filed an L.P.A.No. 460 of 1999 (R) In the said L.P.A., the
Division Bench of the High Court observed that if the appellant had not vacated
the Board's quarter by 1.11.1999, the authority should have taken immediate
steps for vacating the quarter, if necessary with the help of police. The
appellant's prayer for further extension of time was also rejected by the
Division Bench. The Bench also observed that once the appellant has retired, he
has no right to remain in the quarter after the statutory period and therefore,
there is no question of extending the period.
appellant wrote a letter to the Executive Engineer, Transmission Division, Ranchi on 4.1.2000 requesting him to take
charge of the articles belonging to the Board. On 6.1.2000, the Board took the
charge of the articles lying in the quarter and issued receipt for the same. On
17.1.2000, the Executive Engineer, Electricity Board, Ranchi filed a petition for eviction of
the appellant from quarter in question before the sub-Divisional Officer, Sadar,
Ranchi which was registered as Eviction
Case No. 95 of 1999. The appellant informed the Court that he has already
vacated the Board's quarter and information to this effect was already given to
the Executive Engineer. On such application filed by the appellant, the S.D.O. Sadar,
Ranchi dropped the proceedings on
17.1.2000 and matter came to an end.
22.6.2001, the Electrical Executive Engineer vide his letter No.365 dated
22.6.2001 informed the appellant about the Office Order No. 2970 of the Joint
Secretary contained in Memo No. 788 dated 15.6.2001, whereby the Joint
Secretary, Bihar State Electricity Board, Patna passed an order directing
permanent deduction of 5% from the total amount of pension payable to the
appellant under the provisions of Rule 43(a) of the Bihar Pension Rules, 1950
without taking into consideration the fact that the appellant was permitted by
the High Court to continue his stay in the quarter in question and vacate the
same by 1.11.1999 and the appellant vacated the quarter on 1.11.1999 itself and
informed the authorities of the Board in writing on 2.11.1999. The appellant
submitted his representation to the General Manager for granting the benefit of
fixation of new pay scale and also requested him to pay the pension after
determining the quantum of pension which becomes payable after fixation of new
pay scale applicable from 1.4.1997. The appellant submitted that the order
under challenge is unreasonable, unwarranted, without jurisdiction and beyond
the scope of Rule 43(a) and (b) of the Bihar Pension Rules, 1950. The appellant
filed W.P.(S) No. 3159 of 2001 in the High Court of Jharkhand, Ranchi. The main plea of the appellant
before the High Court was that Rule 43(b) of the Bihar Pension Rules, 1950
relates to misconduct committed during the service period and thus the
respondents have no jurisdiction to pass any order under Rule 43(b) for
retention of quarter after his retirement. The learned single Judge by order
dated 19.12.2002 dismissed the writ petition filed by the appellant holding as
is true that the action as alleged against the petitioner does not relate to
any misconduct while the petitioner was in service.
Rule 43(b) of the Bihar Pension Rules, 1950 is not applicable in the case.
However, as 'future good conduct' is an implied condition for every grant of
pension under Rule 43(a) of the Bihar Pension Rules, 1950, the competent
authority has a right to withhold or withdraw a pension or any part of it, if
the pensioner is found guilty of serious and grave misconduct. The impugned
order dated 15th June,
2001, thus can be
saved under the aforesaid Rule 43(a) of the Bihar Pension Rules, 1950. Mere
citation of a wrong provision of law will not render the order illegal."
Aggrieved thereby, the appellant filed L.P.A. No.88 of 2003 in the High Court
of Jharkhand, Ranchi. The Division Bench of the High
Court vide impugned order dated 10.4.2003 dismissed the L.P.A. filed by the
appellant holding as under:
after retirement, the appellant did not choose to vacate the quarter of the
Electricity Board even inspite of repeated direction of this Court and,
ultimately, it was got vacated through police force.
learned single Judge considered this aspect of the matter in detail in the
impugned order and rightly held that violation of orders of this Court
certainly amounted to misconduct on the part of the appellant and as such penal
order issued on 15.6.2001 after giving sufficient opportunity to him was
justified. We also find no reason to interfere with the said order. There is no
merit in this appeal. It is dismissed." Aggrieved by the said order, the
appellant filed an appeal by way of special leave petition in this Court.
have heard Mr. A.N.Deo, learned counsel for the appellant and Mr. S.B. Upadhyay,
learned counsel for the respondents and perused the orders and annexures filed
along with the appeal by both the parties.
counsel appearing for the appellant made the following submissions:
Rule 43(b) of the Bihar Pension Rules, 1950 is not applicable to a retired
employee of the State.
The earlier orders of the High Court granting extension of time for vacating
the quarter was binding upon the respondents.
The respondents were not justified in initiating the departmental proceedings
when the appellant had complied with the order of the High Court and vacated
The respondents cannot withhold the retiral dues and benefits of pension after
fixation of new pay scale by the Board when there was no misconduct on the part
of the appellant in not vacating the quarter in question in obedience to the
order passed by the High Court.
The punishment imposed is excessive.
counsel appearing for the respondents submitted that the appellant did not
vacate the Board's quarter as directed by the High Court and within the
specified period mentioned in the order and, therefore, instituting the
departmental enquiry was justified. He would further submit that the action
alleged against the appellant does not relate to any misconduct while the
appellant was in service. But however, as "future good conduct" is an
implied condition for every grant of pension under Rule 43(a) of the Bihar
Pension Rules, 1950, the competent authority has a right to withhold or
withdraw a pension or any part of it, if the pensioner is found guilty of
serious and grave misconduct. Therefore, he submitted that the impugned order
dated 15.6.2001, thus can be saved under the aforesaid Rule 43(a) of the Bihar
Pension Rules, 1950.
main plea taken by the appellant is that as per Rule 43(b) of Bihar Pension
Rules, 1950 relates to misconduct, if committed, during the service period so,
the respondents have no jurisdiction to pass any order under Rule 43(b) for
retention of quarter after his retirement.
43(a) and (b) of the Bihar Pension Rules, 1950 are reproduced hereunder for the
sake of convenience :
43(a) Future good conduct is an implied condition of every grant of pension. The
Provincial Government reserve to themselves the right of withholding or
withdrawing a pension or any part of it, if the pensioner is convicted of
serious crime or be guilty of grave misconduct. The decision of the Provincial
Government on any question of withholding or withdrawing the whole or any part
of a pension under this rule, shall be final and conclusive."
43(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 loss caused to Government if the petitioner
is found in departmental or judicial proceeding to have been guilty of grave
misconduct; or to have caused pecuniary loss to Government by misconduct or
negligence, during his service including service rendered on re-employment
departmental proceedings, if not instituted while the Government servant was on
duty either before retirement or during re-employment;
not be instituted save with the sanction of the State Government;
be in respect of an event which took place not more than four years before the
institution of such proceedings;
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;
judicial proceedings, if not instituted while the Government servant was on
duty either before retirement or during re- employment, shall have been
instituted in accordance with sub-clause (ii) of clause (a); and
the Bihar Public Service Commission, shall be consulted before final orders are
already noticed, the respondents have issued the penal order withholding
permanently 5% of the pension of the appellant. It is not in dispute that the
BSEB adopted Bihar Pension Rules, 1950 mutatis mutandis for its employees.
Under Chapter III of Bihar Pension Rules, 1950, "general provision
relating to grant of pension" has been laid down. While under Rule 43(b),
the competent authority reserve to themselves the right of withholding or
withdrawing a pension or any part of it, whether permanently or for specified
period, future good conduct is also implied as a condition for every grant of
pension under Rule 43(a) of the Bihar Pension Rules, 1950.
the appellant, after retirement, did not choose to vacate the Board's quarter.
He initially moved before the High Court by filing a writ petition and the High
Court vide order dated 19.2.1999 directed the appellant to vacate the Board's
quarter within one month from the receipt of retiral benefits. Even thereafter,
the appellant having not vacated the quarter, the High Court vide order dated
31.8.1999, directed the appellant to vacate the Board's quarter by 30.9.1999 as
per earlier order. Admittedly, the appellant, even thereafter, did not choose
to vacate the quarter and filed a petition for extension of period. Taking
humanitarian view, the High Court extended the period up to 1.11.1999 and
directed the appellant to vacate the Board's quarter by 1.11.1999. Even
thereafter, the appellant being not satisfied moved L.P.A. No. 460 of 1999. The
Division Bench of the High Court rejected the prayer for further extension of
time. Thereafter, the appellant vacated the Board's quarter only on 6.1.2000.
Therefore, it is thus crystal clear that the Court's order was violated and
such action of the appellant being a misconduct, the impugned penal order was
issued on 15.6.2001 after giving opportunity to the appellant on the basis of
instant case, the appellant vacated the quarter in question within the period
specified by the High Court and he informed the respondents about the vacation
of the quarter and even after this information the appellant was penalized. The
punishment of 5% cut in pensionary benefits, in our opinion, is
disproportionate for the misconduct alleged against the appellant. The
appellant vacated the Board's quarter on 6.1.2000 whereas he ought to have
vacated the same on 1.11.1999 as per order dated 4.10.1999 of the High Court.
The High court, on various occasions, ordered extension of period on
humanitarian grounds. Therefore, extension of time granted by the High Court
and the occupation of the quarter during that period as per the orders of the
Court cannot be treated as or construed as an unauthorized occupation. The
continuance thereof in the quarter in question can, therefore, be treated only
as litigious possession. But the fact remains that he has not vacated the
quarter on 1.11.1999 but in fact vacated only on 6.1.2000.
are, therefore, of the opinion that the impugned order does call for
interference by this Court and modification of the same in order to meet the
ends of justice. The occupation of the quarter after 1.11.1999 is illegal.
question was put, the learned counsel appearing for the appellant submitted
that he was paying the monthly rent of Rs.25/-. Justice would be amply met if
we direct the appellant to pay a sum of Rs.500/- per month for the entire
period of illegal occupation (from 1.11.1999 to 6.1.2000). The balance of
convenience and the prima facie case is also in favour of the appellant. If the
pensioner's benefit is cut at 5% out of the total amount of pension payable to
the appellant, the appellant will suffer an irreparable loss and injury since
after the retirement, the pensionary benefit is the only amount available to
eke out livelihood for the retired employees of the Government.
the aforesaid reasons, we set aside the order passed by the High court in
L.P.A. No. 88 of 2003 dated 10.4.2003 and modify the order as indicated above.
appeal is disposed of accordingly. However, there shall be no order as to
rent now fixed at Rs.500/- per month shall be deposited with respondents within
two weeks from the date of receipt of the copy of the judgment failing which
the penal order dated 15.6.2001 whereby 5% cut out of total pension amount
payable to the appellant was withheld permanently shall come into force.