Jharkhand High Court
Bal Krishna Dubey vs State Of Jharkhand & Ors on 18 February, 2013
Equivalent citations: 2013 (3) AJR 470
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
W.P.(S) No. 1564 of 2010
In the matter of an application under Article 226 of the Constitution
of India
Bal Krishna Dubey ... ... ... Petitioner
Versus
1. State of Jharkhand
2. The Principal Secretary, Finance Department,
Government of Jharkhand, Ranchi.
3. The Joint Secretary, Finance Department, Government of
Jharkhand, Ranchi
4. The Deputy Commissioner, Godda
5. The Treasury Officer Godda
6 The Accountant General, Jharkhand Ranchi.
... ... ... Respondents
---
For the Petitioner : Mr. Bhanu Kumar
For the Respondents : Mr. Sr. S. C. II
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
Reserved on 01/02/2013 Delivered on18/02/2013
1. The petitioner has impugned order dated 13.02.2010 passed
by Principal Secretary, Finance Department, Government of
Jharkhand by which payment of pension to the petitioner has been
stopped and recovery of the amount of pension already paid to
the petitioner has been ordered.
2. The petitioner was initially appointed as a Clerk on
28.03.1966at Dumka and subsequently, he was posted under Directorate of Treasuries, Government of Bihar. The petitioner superannuated from service with effect from 31.01.2004. In one of the cases in Fodder Scam, i.e., R.C. Case No. 77 (A) of 1996, the petitioner was implicated and therefore, by order dated 18.09.1996, he was put under suspension. The petitioner superannuated from service, however, no departmental proceeding was initiated against the petitioner. After his retirement, the petitioner was sanctioned 90 % amount of pension and gratuity.
3. The petitioner, was convicted in R.C. Case No. 77 (A) of 1996 on 08.06.2007 and by order dated 12.06.2007, he was punished to undergo rigorous imprisonment for four years and with fine. The petitioner preferred Criminal Appeal (S.J.) No. 1008 of 2007 which was admitted and he was granted bail by this Court.
-2-4. It appears that in compliance of order dated 30.05.2008 of the Secretary, Finance Department, the Deputy Commissioner, Godda directed the Treasury Officer, Godda by letter dated 22.12.2008 to stop payment of pension to the petitioner and a further direction was given to the Treasury Officer for recovery of the pension already paid to the petitioner. The orders dated 30.05.2008 and 22.12.2008 were challenged by the petitioner in W.P.(S) No. 1656 of 2009. This Court by order dated 11.11.2009 disposed of the writ petition in the following terms:
"When the authority concerned has multiple choices under the Rule and each of those choices is likely to adversely affect the employee in a different manner, and when the principles of natural justice are not expressly excluded by statute, the said principles would require an opportunity of hearing to be afforded to the employee concerned before the decision is taken causing an adverse affect upon the employee.
In the present case, no such opportunity has been afforded. The decision is vitiated on account of violation of principles of natural justice.
The decision contained in Annexure-3 and all consequential orders are therefore, quashed leaving it open to the Government to take a fresh decision in accordance with law."
5. Thereafter, by letter dated 16.01.2010 a show cause notice was issued to the petitioner for withdrawal of pension and recovery of pension already paid to him. The petitioner, by letter dated 25.01.2010, submitted his reply to the show cause notice dated 16.01.2010. A specific plea was raised by the petitioner that the proceeding contemplated under Rule 43 (b) of the Jharkhand Pension Rules was not in accordance with law and therefore, the show cause notice was contrary to law. However, by order dated 13.02.2010, under the provision of Rule 43 (a) of the Jharkhand Pension Rules, the payment of pension to the petitioner was stopped and recovery of the pension already paid to the petitioner was ordered. The petitioner has preferred this writ petition challenging order dated 13.02.2010.
6. A counter-affidavit has been filed in which the respondents have tried to justify the impugned order dated 13.02.2010. It has been stated that in compliance of order passed by this Court on 11.11.2009, a show cause notice was issued to the petitioner on -3- 16.01.2010 and after affording opportunity to the petitioner to submit his reply, the impugned order has been passed.
7. Heard counsel for both the parties and perused the documents on record.
8. The learned counsel for the petitioner has submitted that though, the show cause notice was issued to the petitioner contemplating a proceeding under Rule 43 (b) of Jharkhand Pension Rules, the impugned order dated 13.02.2010 has been passed under Rule 43 (a) of the Jharkhand Pension Rules. He submits that the impugned order dated 13.02.2010 is bad for the simple reason that under the provision of Rule 43 (a) of Jharkhand Pension Rules, no order for withdrawing or forfeiture of pension can be passed and on this ground alone, the impugned order is liable to be quashed. He further submits that in view of provisions contained in Rule 43 of Jharkhand Pension Rules, no proceeding can be initiated in respect of an event which took place more than four years before institution of such proceeding. The petitioner committed the alleged misconduct prior to the year 1996 and no proceeding was initiated against the petitioner within the prescribed period of four years and therefore, even if, it is assumed that the impugned order has been passed under Rule 43 (b) of Jharkhand Pension Rules, still it is not sustainable in law. On the other hand, the learned counsel for the respondents has submitted that it was typographical mistake in the impugned order whereby Rule 43 (a) has been wrongly typed and infact, the impugned order has been passed under Rule 43 (b) of the Jharkhand Pension Rules. He further submits that the charges against the petitioner are grave and he has been convicted by a competent Court and therefore, the misconduct has been proved. Rule 43 (b) of Jharkhand Pension Rules is extracted;
"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 pensioner 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-
(a) such departmental proceedings, if not instituted while the Government servant was on -4- 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; and
(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;
(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. Explanation - For the purposes of the rule-
(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted:-
(I) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal Court; and
(ii) in the case of civil proceedings, on the date on which the complaint is presented or as the case may be, an application is made to a civil Court."
9. It is thus clear that although a departmental proceeding against the petitioner could have been initiated, however as per sub-clause (ii) of Proviso (a) of Rule 43 (b) such departmental proceeding has to be initiated within four years when the alleged misconduct was committed.
10. The period during which the petitioner committed misconduct is prior to year 1996. The petitioner has superannuated from service with effect from 31.01.2004. Admittedly, no departmental proceeding was initiated against the petitioner nor any show cause notice was issued to the petitioner within the period of four years from the date of alleged occurrence / misconduct. Even after the creation of a new State, i.e. the State of Jharkhand no step was taken by the respondents till 22.12.2008, and the letter/ order dated 22.12.2008, was issued without issuing any -5- show cause notice to the petitioner. The said notice was challenged by the petitioner in W.P.(S) No. 1656 of 2009 and this Court had quashed the said order and permitted the respondents to take a decision in accordance with law.
11. On a plain reading of the impugned order dated 13.02.2010, few facts are apparent. The specific plea raised by the petitioner with respect to applicability of Rule 43 (b) of Jharkhand Pension Rules in his reply to the show cause notice dated 16.01.2010 has not been considered by the respondent. The impugned order has been passed only on the basis that the petitioner has been convicted in R.C. Case No. 77 (A) of 1996, although, it has been recorded in the order that petitioner's appeal in the jharkhand High Court challenging the order of conviction and sentence is pending. In the impugned order, it has been wrongly recorded that in the Criminal Appeal filed by the petitioner, no order has been passed by the Jharkhand High Court whereas, the said appeal has been admitted and the petitioner has been admitted to bail. I further find that the impugned order dated 13.02.2010 has been passed in complete ignorance of the direction of this Court in order dated 11.11.2009. By order dated 13.02.2010, the pension of the petitioner was stopped and an order for recovery of the amount already paid to the petitioner on account of pension was passed.
12. In view of the provision contained in Rule 43(b) of the Jharkhand Pension Rules, no proceeding can be initiated in respect of an event which took place more than four years before institution of any proceeding. The power of the Government to withhold pension under Rule 43 (b) of Jharkhand Pension Rules has been discussed in a Full Bench judgment of this Court in the case of the "Dr. Dudh Nath Pandey Vs. State of Jharkhand"
[ reported in 2007 (4) JCR 1 (Jhr) ]. The earlier order dated 22.12.2008 was quashed by this Court because it was passed without following the mandate of Rule 43 (b) of Jharkhand Pension Rules.
13. In the present proceeding also I find that the impugned order dated 13.02.2010 is not sustainable in law. The show cause notice dated 16.01.2010 is clearly beyond four years from the date when the alleged misconduct took place. The petitioner was granted pension and other retiral benefits and he was permitted to superannuate on 31.01.2004 without issuing any show cause -6- notice or initiating any departmental proceeding against him. While interpreting Rule 43 (b) of Jharkhand Pension Rules, the Hon'ble Supreme Court in the case of "State of Bihar & Ors. Vs. Mohd. Idris Ansari" [reported in 1995 Suppl (3) SCC 56], has held as under:
7. "A mere look at 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 government servant concerned is found guilty of grave misconduct.
This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. 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 alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27.9.1993. 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 Court in Writ Petition No. 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 dated 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 27.9.1983. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17.10.1987."
14. In an identical case a Division Bench of this Court in the case of "Radha Raman Sahay & Ors. Vs. The State of Bihar & Ors." (L.P.A. No. 525 of 2001) has held as under:
" From the facts it is clear that in spite of criminal case since 1996, when appellants approached the Court by filing C.W.J.C. No. 1617 of 1997 ( R ) the appellant was allowed the pensionary benefits by order of this Court dated 29th April, 1998 which was upheld by the Division Bench vide order dated 28th January, 2001. It appears that after -7- conviction of the appellant no.1 in the year 2008, the appellant's no. 1 pension has been stopped by the impugned order. Rule 43 (a) provides that Government may withhold pension or part of the pension if pensioner is convicted of serious crime or be guilty of grave misconduct. However, as per the proviso (a) of Rule 43 (b), the Government could have started departmental proceeding during the service period of the employee or his re- employment. As per sub-clause (ii) of proviso (a) of Rule 43 (b), such departmental enquiry can be initiated with respect of pension which took place within four years before the institution of such proceeding. Therefore, the appellant who retired in the year 1996 and was not subjected to any departmental proceeding and he retired and he approached this Court by filing C.W.J.C. No. 1617 of 1997 ( R ) wherein order was passed for giving benefit of the pension to the petitioner as back as on 29th April, 1998 then in the year 2008, the appellant's pension could not have been withheld.
In view of above reasons, the impugned order dated 27th November, 2012 permitting the respondent to initiate the departmental proceeding against retired employee of 1996 for passing any order with respect to withholding of the pension or part thereof is quashed. The L.P.A. Is accordingly allowed."
15. On a consideration of the materials on record and Rule 43 (b) of Jharkhand Pension Rules, I find that order dated 13.02.2010 does not satisfy the requirements of law. In view of the law laid down by the Hon'ble Supreme Court and this Court with respect to Rule 43 (b) of Jharkhand Pension Rules, order dated 13.02.2010 is clearly not sustainable in law and is liable to be quashed. The writ petition is allowed. The respondents are directed to release pension and arrears of pension to the petitioner forthwith.
16. There shall however, be no order as to costs.
(Shree Chandrashekhar, J.) JHARKHAND HIGH COURT, RANCHI Dated:.18/02/2013 AFR Amit