BINDESHWARI CHAUDHARY Vs STATE OF BIHAR .
Bench: J. CHELAMESWAR,PRAFULLA C. PANT
Case number: C.A. No.-003829-003829 / 2011
Diary number: 25700 / 2008
Advocates: M. A. CHINNASAMY Vs
GOPAL SINGH
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Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3829 OF 2011
Bindeshwari Chaudhary … Appellant
Versus
State of Bihar & Ors. … Respondents
J U D G M E N T
Prafulla C. Pant, J.
This appeal is directed against judgment and order dated
20.05.2008, passed by High Court of Judicature at Patna,
whereby Letters Patent Appeal No. 436 of 2000 was disposed
of allowing respondent authorities to withhold 50% of gratuity
and 50% of pension, of the appellant.
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2. Brief facts of the case are that appellant who was posted
as Executive Engineer with Irrigation Department of State of
Bihar, in the District of Singhbhum, awarded a contract on
29.08.1989 to one M/s. D.K. Road Lines, for bed and slope
lining of canal in Galudih. In terms of the contract, the
contractor was required to furnish bank guarantee, and the
same was submitted by him for an amount of Rs.23,61,500/-.
In order to verify the genuineness of the bank guarantee
furnished by the contractor, the appellant sent his Accounts
Clerk to Punjab & Sindh Bank, Jamshedpur, with letter dated
29.08.1989 (Annexure-P1). In response to said letter,
appellant received letter dated 01.09.1989 (Annexure-P-3)
from Shri T.S. Gandhok, Branch Manager of the bank,
confirming the bank guarantee. The appellant made payment
of Rs.15,00,000/- on 02.09.1989 towards mobilization
advance to the contractor. On 04.09.1989, Superintending
Engineer, issued letter (Annexure P-4), directing the appellant
not to make mobilization advance. But, subsequently said
authority allowed the appellant to make second mobilization
advance to the contractor vide its letter dated 27.10.1989,
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consequently the appellant released payment of Rs.8,60,000/-
on 31.10.1989 towards second mobilization advance. After
three months, the Superintending Engineer, vide letter dated
23.12.1989 (Annexure-P-5) approved the work done by M/s
D.K. Road Lines assessing the work done at Rs.42,79,021/-.
On 12.02.1990, the appellant made further payment of
Rs.2.55 lacs.
3. Meanwhile, when new Manager took over the charge of
Jamshedpur Branch of Punjab & Sindh Bank, issued letter
dated 13.02.1990 (Annexure-P-7), asking the appellant to send
photocopy of the bank guarantee in question. And vide letter
dated 20.03.1990 (Annexure-P-8) the new Manager informed
the appellant that no such bank guarantee has been issued by
the bank. Appellant has pleaded that he received said letter
on 10.04.1990, and by then the appellant had released further
payment of Rs.7.33 lacs towards bill of the contractor. On
04.05.1990, bank cancelled its earlier communication dated
01.09.1989. The appellant finally released Rs.4.4 lacs towards
current bill of the contractor, whereafter he was transferred on
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11.06.1990 to Daltanganj. It appears that C.B.I. registered a
case RC37(A)/91, Patna in pursuance to the fraudulent/forged
bank guarantee furnished by the contractor.
4. On 04.04.1991, appellant was placed under suspension
in contemplation of departmental proceedings. The appellant
challenged order of suspension in Writ Petition C.W.J.C. No.
2673 of 1991 before the High Court which was disposed of
with the observation that if charge sheet is not served within
three weeks on the appellant, the suspension order shall stand
quashed. On 13.06.1991 the respondent authorities served
charge sheet (dated 02.05.1991) on the appellant, relating to
payment of unsecured advance of Rs.14.5 lacs to the
contractor. The appellant then filed another Writ Petition
C.W.J.C. No. 4439 of 1991 once again seeking quashing of the
suspension order, and the High Court vide its order dated
10.10.1991, quashed the same. The respondent authorities
vide order dated 05.12.1991 (Annexure–P12) revoked the
suspension order, and departmental enquiry was dropped.
Consequently on 14.01.1992, the appellant joined his new
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assignment as a Technical Advisor to Water Nigam Circle,
Dumka.
5. After investigation, C.B.I. submitted charge sheet against
accused T.S. Gandhok, Manager of Punjab & Sindh Bank who
confirmed the bank guarantee, and accused Ramdahin Singh,
Senior Accounts Clerk of the Irrigation Department who
received the bank guarantee from the contractor and verified.
The appellant has pleaded that he is not accused in the charge
sheet, still on 18.06.1993, after the departmental enquiry was
earlier dropped, the respondent authorities awarded
punishment against the appellant withholding his three
increments with cumulative effect, and also ‘censured’ for the
year 1989-90. As such, third C.W.J.C. No. 942 of 1994 was
filed by the appellant challenging the above order of
punishment. The said writ petition was allowed on 23.03.1995
by the High Court holding that withholding of three
increments with cumulative effect is a major punishment, and
could not have been awarded without resorting to regular
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departmental enquiry. However punishment of “Censure’ was
not interfered with by the High Court.
6. On 20th May, 1995, the respondent authorities initiated
fresh departmental enquiry against the appellant, and second
charge sheet (Annexure-P13) was served on him relating to the
same allegations of release of unsecured advance of Rs. 14.5
lacs to the contractor against the order of Superintending
Engineer. The appellant filed his objections and participated in
the enquiry. The enquiry report dated 18.10.1996 (enclosure
with the Annexure P-17) was submitted by the enquiry officer
to the State Government with the finding that part of the
charge stood proved. Consequently, show cause notice dated
23.10.1996 was issued to the appellant to which he responded
on 07.01.1997. Thereafter the appellant stood retired on
31.01.1997. On 24.09.1997, appellant was awarded
punishment of withholding of 100% pension and gratuity.
7. Finally, the appellant filed fourth Writ Petition C.W.J.C.
No. 11788 of 1997 before the High Court challenging the order
of withholding of pension and gratuity. During the pendency of
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said writ petition, another show cause notice dated
17.06.1998 (Annexure-P18) was issued against the appellant
under Rule 43 (b) read with Rule 139 of Bihar Pension Rules,
as to why the pension benefits be not decided at zero. The
High Court, vide its order dated 04.12.1998, dismissed the
writ petition. Aggrieved by said order, Letters Patent Appeal
No. 436 of 2000 was filed by the appellant which was disposed
of by the High Court vide impugned order dated 20.05.2008
restricting withholding of gratuity and pension to the extent of
fifty percent.
8. Challenging the impugned order, Shri Das, learned
counsel for appellant argued that action of the appellant in
releasing the payment to the contractor was bonafide as the
bank guarantee submitted by him was got verified from the
Branch Manager of the Bank, and by the communication
dated 01.09.1989 (Annexure-P3), the bank confirmed the bank
guarantee in question. In this connection, it is further pointed
out that after investigation, it is only Ramdahin Singh, official
of the department, and Shri T.S. Gandhok, the then Branch
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Manager of the bank, are facing the trial, and not the
appellant. It is further submitted that it is not a case where
the appellant has caused pecuniary loss to the department, as
the payments made to the contractor were either permissible
mobilization advances or against the running bills. It is also
contended that after the High Court quashed the punishment
earlier awarded by the respondent authorities vide order dated
23.03.1995 passed in C.W.J.C. No. 942 of 1994, fresh
departmental enquiry was not maintainable. Lastly, it is
contended that from the evidence on record charge against the
appellant cannot be said to have been proved.
9. On the other hand, Shri Shivam Singh, learned counsel for
the respondent authorities submitted that Rule 43(b) read
with Rule 139 of Bihar Pension Rules empowers the State
Government to withhold the pension and gratuity of the
employee, and the respondent authorities have done so for the
sufficient reasons.
10. We have considered the submissions of learned counsel
for the parties. The first charge sheet was admittedly served on
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the appellant on 13.06.1991, which was revoked consequent
to order dated 10.10.1991, passed by the High Court in
C.W.J.C. No. 4439 of 1991, whereby the suspension order
issued against the appellant was quashed. By the same order
dated 05.12.1991 (Annexure P-12) departmental enquiry was
also dropped. Fresh charge sheet was served on the appellant
on 20.05.1995 in the same matter. It is pertinent to mention
here that when High Court in earlier round quashed the major
punishment of withholding of three increments with
cumulative effect, it did not disturb the minor punishment
‘censure’ awarded against the employee. However, the High
Court did observe that action can be taken in accordance with
law.
11. The communication dated 29.08.1989 (Annexure P-1)
sent by the appellant from the Branch Manager of the Bank,
and reply dated 01.09.1989 (Annexure P-3) confirming bank
guarantee received from the Bank are not disputed. It is also
not disputed that after investigation C.B.I. found evidence
against the then Branch Manager, and Ramdahin Singh,
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Senior Accounts Clerk of the appellant, as the persons
responsible with the contractor, in the matter. It is also
nobody’s case that the appellant caused pecuniary loss to the
exchequer. In the light of above, we find force in submission
of learned counsel of the appellant that the appellant was
bonafide in making the payment in question to the contractor,
as he did make enquiries from the bank concerned before
releasing mobilizing advance to the contractor. Copy of letter
dated 29.08.1989 (Annexure-P1) sent by the appellant to
Manager of Punjab & Sindh Bank is reproduced below:-
“OFFICE OF THE EXECUTIVE ENGINEER IRRIGATION DIVISION, GALUDIH
Letter No. 916/Galudih/ Dated:29-08-1989
To,
The Manager, Punjab and Sindh Bank, Jamshedpur
Subject: Confirmation of Bank Guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- issued in the name of Executive Engineer, Irrigation Division on behalf of M/s. D.K. Road Lines.
Dear Sir,
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The above Bank Guarantee has been submitted by M/s. D.K. Road Lines as a security performance which has been issued by your Bank.
It is, therefore, requested to please confirm the issue through Sri Ramdahin Singh, S.A.C of this Division, who is deputed in your bank for the purpose. It is also requested to please confirm the issue in future if any guarantee issued in my favour without waiting for any request letter.
Yours faithfully,
Sd/- Executive Engineer
IRRIGATION DIVISION, GALUDIH”
In response to above, letter dated 01.09.1989 (Annexure-P3)
appears to have been received by the appellant from the bank.
The said letter reads as under:-
“PUNJAB AND SINDH BANK JAMSHEDPUR
Dated: 01-09-1989
To, The Executive Engineer, Irrigation Division, Galudih
Sir,
Ref: Your letter No.916/Galudih dated 29-08-1989.
In response to your letter mentioned above, we hereby confirm having issued bank guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- and B.G. No. 21/89 dated
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31-08-1989 for Rs. 23,61,500/- in your favour on behalf of M/s. D.K. Roadlines.
This is for your information please.
For PUNJAB & SINDH BANK
Sd/- T.S. Gandhok, Manager, Jamshedpur”
12. The Enquiry Report dated 18.10.1996 (enclosure to
Annexure P-17), in its para 8, shows that though it is
mentioned that charge is proved against the appellant in the
enquiry, but the finding is based on earlier enquiry report.
The earlier enquiry report was in question in C.W.J.C. No. 942
of 1994 in which punishment of withholding of three
increments with cumulative effect was quashed. The
authorities could not and should not have relied upon said
enquiry report as basis in fresh enquiry for holding the
appellant guilty of the charge and to award punishment of
withholding of pension and gratuity. In the circumstances, we
do not find that there was sufficient reason for the respondent
authorities to exercise the powers under Rule 43 (b) read with
Rule 139 of Bihar Pension Rules as neither there was
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pecuniary loss to the State, nor the present case is of a grave
misconduct on the part of the appellant.
13. For the reasons as discussed above, we are inclined to
interfere with the impugned order passed by the High Court.
Therefore, the appeal is allowed. The orders dated 24.09.1997
and 17.06.1998, passed by the respondent authorities shall
stand quashed. No order as to costs.
……………………………....J. [J. Chelameswar]
………………………..……..J. [Prafulla C. Pant]
New Delhi; November 29, 2016.