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CASE NO.: Appeal (civil)  1599 of 2005

PETITIONER: Ram Dayal Rai

RESPONDENT: Jharkhand State Electricity Board and Ors.

DATE OF JUDGMENT: 09/03/2005

BENCH: Ashok Bhan & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(C) No. 15469 of 2003)

Dr. AR. Lakshmanan, J.

Leave granted.

This 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. Before proceeding to consider the matter on merits, the facts can be  stated briefly for the purpose of the present appeal.

The 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. The 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:

"However, 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.   The appellant wrote a letter to the Executive Engineer, Transmission  Division, Ranchi on 4.1.2000 requesting him to take charge of the articles

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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.   On 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 under:  "It is true that the action as alleged against the petitioner does not  relate to any misconduct while the petitioner was in service.   Therefore, 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: "Admittedly, 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.   The 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. We have heard Mr. A.N.Deo, learned counsel for the appellant and  Mr. S.B. Upadhyay, learned counsel for the respondents and perused the

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orders and annexures filed along with the appeal by both the parties. Learned counsel appearing for the appellant made the following  submissions:   (a)     Rule 43(b) of the Bihar Pension Rules, 1950 is not  applicable to a retired employee of the State. (b)     The earlier orders of the High Court granting extension of  time for vacating the quarter was binding upon the  respondents. (c)     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 quarter. (c)     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.   (d)     The punishment imposed is excessive.

Learned 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.   

The 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. Rule 43(a) and (b) of the Bihar Pension Rules, 1950 are reproduced  hereunder for the sake of convenience : "Rule 43(a) \026 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."

"Rule 43(b) \026 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 after retirement:

Provided that \026 (a)     such departmental proceedings, if not instituted while the  Government servant was on duty either before retirement or during  re-employment; (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; (iii)   shall be conducted by such authority and at such place or  places as the State Government may direct and in accordance

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with the procedure applicable to proceedings on which an  order of dismissal from service may be made; (b)     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 (c)     the Bihar Public Service Commission, shall be consulted  before final orders are passed."

As 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.   Admittedly, 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 the evidence.

In the 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.           We 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.   When a 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.

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For 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. The appeal is disposed of accordingly.  However,  there shall be no  order as to costs.

The 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.