THE CM SHOULD UNDERSTAND THE LAW AND FOIL FOUL DESIGN OF BUREAUCRACY

Subhas Chandra Pattanayak

If a Chief Minister does not bother to know and understand the Law, how can the State run? This question stares at us in the context of Prof. Biswaranjan, a man known all over Orissa, not only as a perfect teacher, but also for his intellectual activities.

Prof. Biswaranjan has retired from Orissa Education Service on superannuation. He is entitled to all his retirement benefits including pension as he has not done any financial loss to the State at any point of time during a more than three decades long tenure that he dedicated to teaching. But as the Chief Minister does not know and understand the relevant Laws, an arbitrary order has been passed, pending approval of Orissa Public Service Commission, to cut off heavy chunks of his dues from the pension money he is to receive.

His fault is that he had refused to oblige the then Secretary, Higher Education, Ramesh Chandra Behera in destroying the charge-handover records of a co-teacher R.N.Panda, to whom, being the Principal-in-charge of BJB Junior College, he had relieved of duties in pursuance to an Order of transfer. On behalf of the Secretary, a Deputy Secretary had asked him not to show on records that Panda had been relieved, as that would pose administrative problems for withdrawal of his transfer. The Secretary had assured Panda to continue in the same college; but if records of handing over charges are communicated to Accountant General, withdrawal of the transfer order would not be easy; and hence, he should not keep the charge reports on records, the DS had told Biswaranjan. It was legally not possible. The College Office could not have been asked by Prof. Biswaranjan to suppress or destroy the charge reports of Prof. Panda as that would have shattered all administrative ethics in the College. Therefore, he did not buzz. This enraged the Secretary and thereafter systematic steps were taken to harass him. I had described him in these pages as a “victim of a vendetta”.

As a part of the scheme an idea to entangle Biswaranjan in a malfeasance over admission of students was cooked up. The government has never wanted to ascertain as to who was the real brain behind the malfeasance; but has arbitrarily held Biswaranjan responsible.

The intriguing drama of discipline that is going on in the corridors of Higher Education Department in respect to this particular matter is a specific sample of how conspiratorial and incompetent the State administration has become.

The crux of conspiracy that has engulfed Biswaranjan comprises a suggestion for increase of seats in the BJB Junior College for accommodation of a few numbers of students beyond the last date of admission. The suggestion came from the head clerk of the College with emphasis on the Principal’s prerogative to increase the seats. The Secretary of the Admission Committee forwarded the same to the Principal-in-charge for untoward transmission to the Principal, which he, Prof. Biswaranjan, did as per practice in vogue. By that time his position was also administratively dismantled by the Secretariat and paramount power of administration of the College had gone to the Principal. He had no role to play excepting forwarding the file to the Principal and the mandarins in the Secretariat had speculated that in the circumstances created by them, this would sure happen. After they ascertained that Biswaranjan had forwarded the file, the Principal was tele-advised to summon him to his chamber to obtain an endorsement on his forwarding note. Unaware of the conspiracy, Biswaranjan added the endorsement as desired by the Principal. The conspiracy clicked.

He was suspended, all on a sudden, in blatant disregard to the guidelines on suspension. No reason was shown. Scenes after scenes changed in the drama of discipline. Government withdrew the order of suspension and posted him again as Principal of Government Junior College at Puri. Had he really been involved with any admission malefaction, the Government would never have posted him as a Principal again. But bureaucracy has scant respect for integrity. It remained adamant on harassing Biswaranjan who had refused to crawl before its caprices. Therefore, he was subjected to a disciplinary proceeding before the Commission of Departmental Inquiry (CDI).

The conspiracy aspect was not investigated into by the CDI. It was alleged that the delinquent officer had not honored a government circular of 1993 while forwarding the relevant file to the Principal. Biswaranjan had pleaded that he was never a Principal in 1993 and at no point of time he was made acquainted with the alleged circular. The alleged circular was communicated to the Principals in 1993 as per the averments of the Government. It is therefore clear that Biswaranjan had no personal knowledge of the alleged circular, he being never a Principal at that time. He had not taken charge of the alleged circular when he joined as Principal-in-charge of BJB Junior College. On the other hand, Government had never made it published in College Calendars or Admission Guidelines which could have made Biswaranjan aware of its existence. So, he rightly pleaded that he had no knowledge of the alleged circular. Therefore, onus was on the department to prove that Biswaranjan had seen the circular and was aware of the contents thereof. But the Department never placed any material before the CDI to prove the veracity of its own allegation. Disregard to the circular being the crux of allegation against Biswaranjan, his plea of ignorance about the alleged circular was the minimum that the Government should have countered on strength of evidence to prove the allegation it had raised. But it never did it. Still the CDI decided that the allegation has been proved!

It has never found out, if the alleged admission of students was illegal and whether the Government has legalized the admission or has nullified it. The Government has never nullified the admission. All the students who were admitted, completed their study without any interruption or intervention and passed out in due course of time. This very fact establishes that the Government had accepted the admission to be legal or by default had legalized it. In view of this the Government’s case against Biswaranjan had no merit.

What was the crux of the issue? Admission of some students who were legally not competent for the same. If their admission was not found illegal and therefore was not nullified, how a routine forwarding of a file to the Principal for final decision at his end on increase of seats to facilitate the said admission becomes punishable for the person who had no direct involvement?

Biswaranjan had never been charged for having derived any personal gain from the alleged admission. The Government had never shown to the CDI that he had got any such gain nor had any personal candidate who had benefited from the increase of seats. No mala fide motive was attributed to the Professor. No mens rea. Neither had he personally gained from the alleged admission nor had he caused any financial loss to the government by forwarding the concerned file to the final authority. Neither any student who had been unable to get a berth in BJB College, as favor, if any, was shown to the ones who got admission nor any of the staff, teachers and the Principal of the College was produced before the CDI by the authorities to prove the allegation against Biswaranjan. On the other hand, he CDI, on its own accord, did not summon the Head cleark, members of the admission Committee, the Principal and the students out of the illegally admitted lot to his presence, to ascertain as to what extent Biswaranjan was really involved. The Government did never prove any allegation against Biswaranjan and the CDI did not see the matter in its entirety. It is therefore surprising that the CDI found Biswaranjan guilty of major offences and recommended to stop three of his time scale salary increments with cumulative effect!

Under the Law the Government is not bound to accept the recommendation of the CDI if that does not appear to be unquestionable. Biswaranjan has pleaded before the Government that the CDI report is defective and should be discarded. But, the Government has decided to disallow 5% of his pension for three years as following retirement his increments cannot be stopped. Bureaucracy’s proposal has been approved by the Chief Minister. In doing so the CM has erred.

To disallow 5% of pension for three consecutive years to Prof. Biswaranjan means that a certain amount of money is to be recovered from his pension.

Had the Chief Minister gone deep into the file, he could never have approved the bureaucracy’s proposal; because it is an illegal proposal. It transgresses the tenets of Service Laws of the State. Law has not given any scope for recovery from pension. Recovery can be made only from pay. But pension is not pay. Pay is a salary drawn prior to superannuation. Pension is a fraction of the salary a person drew for the last month of his service, to be paid regularly as an assured token of gratitude of the people for the service he had rendered. Recovery of any amount from pension is a disrespect shown to the retired person.

Mark the language of Law. The Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, under Rule 13 (iv) says that the whole, or part of any pecuniary loss caused to Government, or to a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by Government, or to a local authority set up by an Act of Parliament or of the Legislature of State can be recovered from ‘pay’ if the same loss is caused by negligence or breach of orders. The pertinent point is that the recovery can be made from ‘pay’ only, not from pension. The Rule says “recovery from pay”. It does not say “recovery from pay or pension”. It is sad that in the instant case the Chief Minister has failed to understand this soft thread of law and unfortunately has agreed with the illegal decision of bureaucracy.

Recovery from pay is also conditional. The Rule as quoted supra makes it unambiguously clear that only when a government servant is found to have caused any pecuniary loss to the State or public sector, recovery of the loss amount can be recovered from his or her pay. Again by saying that the whole or part of the pecuniary loss so caused can be recovered, it has been made mandatory that the amount of loss in term of money shall have to be determined and settled before recovery is ordered.

If for argument shake only, we concede that recovery can be made from pension, then no recovery can be ordered from his pension. He was never charged for having caused any pecuniary loss to the State or to the public sector. He has not caused any such loss. There has never been any enquiry into any loss caused by him at any point of time. Therefore it is blatantly illegal to recover any amount from him by disallowing 5% of his pension for three years. Sub-Rule (i) of Rule 13 has a provision of collection of money by way of fine. But the government cannot apply this to the instant case; because the proviso to Rule 13 has stipulated that “penalty of fine shall be imposed only on Group-D Government servants”. Prof. Biswaranjan was a senior Class-I Officer in the Orissa Education Service, not a Group-D employee.

I do not believe that officers in the Higher Education Department do not know this legal position. But they are determined to take revenge against Prof. Biswaranjan for his refusal to honor their off-the-record illegal orders as described above and therefore they have devised the design of disallowing a vital portion of his pension. Additional Chief Secretary is the Chief Secretary in respect of Higher Education Department. He could have applied his mind to the issue vis-a-vis the provisions of Law and stopped the illegal action proposed by the Department against the faultless Professor. But it seems he has not paid proper attention.

As I have already noted, the Chief Minister has also not applied judicious mind to the issue. But the issue is not finally over. There is a scope for the Public Service Commission to set right the wrong. Without any prejudice to the role of the PSC, it can be safely said that if the Chief Minister understands the Law discussed above vis-a-vis the sequences, he can foil the foul design of bureaucracy and protect the dignity of a person who has contributed his intellectual best to the people of Orissa for so many decades; but, by refusing to oblige an IAS officer in a nefarious deal, has been subjected to a severe conspiracy let loose by the scheming bureaucracy.

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