Jharkhand High Court
Swetabh Kumar vs The State Of Jharkhand Through The ... on 17 March, 2023
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP(S) No. 5009 of 2022
Swetabh Kumar ......Petitioner
-Versus-
1. The State of Jharkhand through the Secretary/Principal Secretary, Drinking
Water and Sanitation Department, Doranda, Ranchi.
2. The Joint Secretary to Government, Drinking Water and Sanitation
Department, Doranda, Ranchi.
....Respondents.
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Petitioner(s): M/s Manoj Tandon, Neha Bhardwaj, Adamya.
Kerketta and Akanksha Priya, Advocates.
For the respondent(s): Mr. Devesh Krishna SC Mines-III and
Ms. Rukmini Kumari, AC to SC Mines-III
ORDER
C.A.V. on: 12/12/2022 Pronounced on: 17/03/2023
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Order No. 4: In this writ petition, the petitioner has prayed for quashing the
Notification No. 4/2016-3836 dated 9.9.2022 (Annexure-5), whereby, the petitioner has been inflicted with penalty of deduction of 10% pension for two years.
2. The petitioner retired from the post of Engineer-in-Chief, Drinking Water and Sanitation Department, Govt. of Jharkhand, Ranchi on 28.2.2022. There is an allegation that while he was posted as Superintending Engineer, Drinking Water and Sanitation Department, Urban Circle, Ranchi, he technically sanctioned a construction of brick masonry Channel with RCC Culvert in 1 st phase pipe in filtration plant campus at Rukka under DW & S, S/R Head Works Division, Ranchi for a sum of Rs.26,22,247.00 on 10.12.2012. The petitioner after completion of his service superannuated. The entire service period of the petitioner was unblemished as he was promoted from the post of Assistant Engineer and ultimately to the post of Engineer-in-Chief. After 15 days from the date of his superannuation, the petitioner was served with a show cause dated 15.3.2022 alleging therein that he technically sanctioned the aforesaid work, but within one year of the said work, the brick guard wall collapsed due to defect in the design, thus, the services of the petitioner was held unsatisfactory. It was further mentioned in the notice that in view of the aforesaid unsatisfactory service, the Government is intending to invoke Rule 139 of the Jharkhand Pension Rules.
3. It is the contention of counsel for the petitioner that the allegation which was levelled is in respect of an incident of the year 2012 for which, no notice under Rule 139 of the Jharkhand Pension Rules could have been issued after a lapse of ten years. For an incident, which is older than four years, cannot be a ground to pass an order under Rule 139 of the Jharkhand Pension Rules.
2.Counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court in the case of State of Bihar and others Vs. Mohd. Idris Ansari reported in 1995 Supp (3) SCC 56. In support of his contention, he submits that Rule 43-b of Jharkhand Pension Rules must be read with Rule 139 of the Jharkhand Pension Rules.
4. Counsel for the State submits that admittedly the petitioner gave technical sanction to construct the guard wall. As there was fault in the design, the wall collapsed in September, 2015 i.e. within two years. He further submits that since the petitioner gave technical sanction, he must be held responsible for the said collapse. He also submits that the petitioner superannuated on 28.2.2022 and notice was served on 15.3.2022 i.e. within three years of sanction of the pension and proper opportunity of hearing was given to the petitioner to defend his case by filing a reply to show cause notice which was duly considered and thereafter 10% of the pension was ordered to be deducted for two years. Thus, there is no ambiguity in the entire process.
5. After hearing the counsel for the parties, I find that the question which falls for consideration is whether Rule 139 of the Jharkhand Pension Rules should be read with Rule 43-b or in isolation and whether cognizance can be taken of an event which occurred four years prior to the issuance of the aforesaid notice.
6. Admittedly, the petitioner superannuated on 28.2.2022 from the post of Engineer-in-Chief. He gave technical sanction for construction of a channel Wall. The wall collapsed within two years from the said construction. Admittedly, the approval was granted on 10.12.2012. It is admitted case that thereafter no action was taken against the petitioner. Only after superannuation vide Memo No. 1351 dated 15.3.2022, show cause notice was issued to the petitioner under Rule 139 of the Jharkhand Pension Rules, asking him to give a proper reply as to why not an appropriate action would be taken against him under the said Rules as his service was not thoroughly satisfactory. The reason that the service of the petitioner was not found satisfactory is based on the allegation that he gave technical sanction for construction of a guard wall, which later collapsed.
7. The respondents after receiving the reply to the show cause, decided to impose punishment of deduction of 10% pension for two years, invoking Rule 139 of the Jharkhand Pension Rules. Rule 139 of the Jharkhand Pension Rules reads as under:-
"139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved.
(b) If the service has not been thoroughly satisfactory, the 3. authority sanctioning the pension should make such reduction in the amount as it thinks proper.
(c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed."
8. Sub-rule(a) of the aforesaid Rule suggests that to receive full pension, the service rendered has to be approved. The situation where the pension can be curtailed/withheld is enshrined in Sub-Rule 139(b) and 139(c) of the Jharkhand Pension Rules. Sub-Rule 139(b) of the Rules provides that if the pensioner's service is not thoroughly satisfactory, the authority sanctioning the pension can make such reduction in the amount as he thinks proper. Sub-rule (c) gives power to the State Government to revise the order of pension, which is passed by the sub-ordinate authority under the control of the State. It is the power of the State Government to exercise revisional power to reduce the pension but that revision is also subject to the rider. Where the sub-ordinate authority grants pension, the State can revise the said order if they are satisfied that the services of the pensioner was not thoroughly satisfactory or there was any proof of grave misconduct on his part while he was in service.
9. There is difference between Sub-rule 139(b) and 139(c) of the Jharkhand Pension Rules. Sub-rule 139(b) gives power to Pension Sanctioning Authority to reduce the pension whereas, Sub-rule 139(c) gives power to the State Government to revise the order passed by such Pension Sanctioning Authority or any authority sub-ordinate to the State. When Sub-Rule 139(c) of the Jharkhand Pension Rules is read one can understand that in two cases, the State can invoke such power; (i) if they are satisfied that the services of the pensioner was not thoroughly satisfactory, or (ii) there is proof of grave misconduct.
The word used in the said Rule to join these condition is "or" . The word "or" is a grammatically disjunctive word, which expresses choice between two mutually exclusive possibility. Thus, on fulfillment of any one of the two conditions i.e. either the condition of an unsatisfactory service or a proof of grave misconduct, the State can proceed to curtail or withhold pension after giving proper opportunity within three years from the date of the first sanctioning order.
4.10. In this case, when I go through the notice, I find that the allegation levelled against the petitioner is that his service was unsatisfactory as he had technically approved the guard wall, which collapsed. Admittedly, this occurrence had taken place during the year 2012-15, but the notice was given in March 2022 i.e. immediately after superannuation. The Hon'ble Supreme Court in the case of State of Bihar and others Vs. Mohd. Idris Ansari reported in 1995 Supp (3) SCC 56, while dealing with Rule 139 of the Pension Rules read with Rule 43-b of the Jharkhand Pension Rules, in paragraph 9 has categorized the two circumstances, which are as follows:
1. A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory.
2. Even if the service record of the officer concerned is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct of the officer concerned during his service tenure, the State Government can exercise revisional power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond that period.
It is necessary to quote paragraph 9 of the aforesaid Judgment,which reads as under;
"9. So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired government servant or not in the circumstances contemplated by the rule. The first circumstance is that if the service of the government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of the government servant concerned while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revisional power has to be exercised in consonance with the principles of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first time.
11. After categorizing the circumstances, the Hon'ble Supreme Court in para 10 of the aforesaid judgment has held that in the second type of cases where 5. there is case of grave misconduct committed by the concerned officer during the service tenure, the State Government can exercise the power under Rule 139 of the Jharkhand Pension Rules, but the same has to comply with the requirement of Rule 43(b) of the said Rules. At this stage, it is necessary to quote some of the provisions of Section 43(b), which reads as under;
"(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 proceedings 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 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 proceeding;
(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 form service may be made."
12. One of the provisions is that Rule 43-b of the Jharkhand Pension Rules cannot be invoked after four years from the date of commission of alleged misconduct, It is necessary to quote relevant portion of paragraph 10 of the said judgment, which reads as under;
"10. So far as the second type of cases are concerned the proof of grave misconduct on the part of the government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him."6.
13. Thus, it is clear from the aforesaid judgment that Rule 43-b of the Jharkhand Pension Rules has to be read with Rule 139 of the Jharkhand Pension Rules only when there is an allegation of grave misconduct. If the Government or the Pension Sanctioning Authority simply feels that the service is not satisfactory then there is no application of Rule 43-b of the Pension Rules. In a case which is bereft of any allegation of grave misconduct, but is a case of unsatisfactory service, Rule 43-b of the Rules cannot be read with Rule 139 of the Pension Rules. In that scenario, only embargo is that the said power cannot be exercised beyond three years from the date of first sanctioning of the pension.
14. Considering the aforesaid provisions, when I go through the impugned notice, I find that the allegation against the petitioner is that he gave technical sanction for construction of a guard wall which collapsed, thus the services was termed unsatisfactory. There is no allegation of grave misconduct against the petitioner. Since there is no allegation of grave misconduct, Rule 43-b of the Jharkhand Pension Rules cannot be read with Rule 139 of the Jharkhand Pension Rules.
15. In this case, admittedly, the petitioner superannuated on 28.2.2022 and his pension was sanctioned thereafter, whereas, notice invoking Rule 139 of the Jharkhand Pension Rules was issued on 15.3.2022 i.e. within three years from the sanctioning order of the pension. I find that there is no illegality in issuance of show cause notice and the order impugned, as the case of the petitioner has been duly considered, after giving an opportunity of hearing to the petitioner and after following the provisions of Rule 139 of Jharkhand Pension Rules.
16. The judgment upon which the petitioner has relied, in fact, does not help the petitioner as the Hon'ble Supreme Court in that case was dealing with the case of grave misconduct and, in fact, in the said judgment, the Hon'ble Supreme Court held that only in grave misconduct, Rule 43-b of the Jharkhand Pension Rules has to be read with Rule 139 of the Jharkhand Pension Rules, which is not the case here, as this is a case of unsatisfactory service.
17. Further, this Court is not the appellate Court, while exercising the jurisdiction under Article 226 of the Constitution, this Court cannot sit in appeal. The scope of judicial review is limited. In this case, I find there is no illegality or irregularity in the process. Opportunity to defend was given to the petitioner, which he availed. The quantum of punishment also cannot be said to be shockingly disproportionate. Thus, no ground is made out for interference.
18. Accordingly, this writ petition is dismissed.
Anu/-CP2. (ANANDA SEN, J.)