Jharkhand High Court
Kashi Ram Rana vs State Of Jharkhand & Ors on 19 July, 2010
Equivalent citations: 2010 (4) AIR JHAR R 236, (2010) 4 JCR 226 (JHA)
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
W.P.(S) No.4423 of 2009
Kashi Ram Rana.................................Petitioner
VERSUS
State of Jharkhand and others....... Respondents
CORAM: HON'BLE MR.JUSTICE R.R.PRASAD
For the Petitioner : Mr.Pramod Kumar
For the State : Mr.R.R.Mishra, G.P.II
For the Accountant General :Mr.S.Shrivastava
Reserved on 7.7.2010 Pronounced on 19.7.2010
5. 19.7.10. It is the case of the petitioner that the petitioner, on being appointed as Assistant Teacher, vide order as contained in memo no.976 dated 25.3.1981, was posted at Middle School, Basudih, Satgama. After discharging his duty satisfactorily for number of years, the petitioner got retired on 31.1.2006 from the Middle School, Pabra. All on a sudden, the District Superintendent of Education, Hazaribagh issued an order as contained in memo no.427 dated 10.2.2006 whereby the petitioner was called upon to submit his show cause as to why not pension and other retiral dues be stopped as he had secured an appointment on a forged letter. On getting the said order, the petitioner submitted his explanation. When no order was passed, the petitioner preferred a writ application bearing W.P.(S) No.4703 of 2007 for quashing the said order dated 10.2.2006 issued by the District Superintendent of Education, Hazaribagh. The said writ petition was disposed of with a direction to the authority to take decision in the matter in the light of the show cause submitted by the petitioner. Pursuant to that, the District Education Establishment Committee when took up the matter found the show cause to be unsatisfactory and hence, took a decision not to give pensionary benefit to the petitioner. The said order was communicated to the petitioner by the District 2 Superintendent of Education,Hazaribagh vide its memo no.1427 dated 20.7.2009 (Annexure 6) which has been sought to be quashed.
Learned counsel appearing for the petitioner submits that during the entire service tenure, no such allegation was levelled against the petitioner but after the retirement of the petitioner, the authority on the allegation of securing appointment on forged letter has passed an order for stopping of the pension which is illegal as the State authority does not have any power to do so, except in a case which is covered under rule 43(b) of the Bihar Pension Rules where the State does have right to withhold the pension if one is found guilty of grave misconduct in a departmental or judicial proceeding. But the State authority without putting the petitioner to a departmental proceeding or a judicial proceeding came to conclusion simply on receiving allegation that the petitioner secured employment on forged document and as such, order as contained in Annexure 6 is fit to be quashed.
As against this, learned counsel appearing for the State submits that since the appointment being secured on a forged document was itself illegal, the authority does have right to withhold the pension of the petitioner as he is not legally entitled to get that.
Having heard learned counsel appearing for the parties, it does appear that petitioner's pension on his superannuation has been withheld by the authority on the allegation that the petitioner secured employment on forged document but the question would be as to whether that power is within the competence of the authority without finding the petitioner guilty of the said charge either in the departmental proceeding or in a judicial proceeding. 3 The answer to this question is very much there in Rule 43(b)of the Jharkhand Pension Rules which reads as under:
" The State Government further reserve to themselves the right to withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right or 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."
From its reading it is quite evident that the proof of grave misconduct on the part of the Government servant is to be established in a departmental proceeding or judicial proceeding which may be initiated even after his retirement in such type of cases but such departmental proceeding will have to comply with the requirement of the Rule 43(b). Consequently, retired Government servant can be found guilty of grave misconduct committed during his service career, pursuant to the departmental proceeding conducted against him even after his retirement but such proceeding could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of such departmental proceeding against him.
In the present case, admittedly before issuance of Annexure 6 withholding the pension, no departmental proceeding had been initiated nor such finding of securing employment on forged document has come in a judicial proceeding, rather the authority only on the basis of receiving allegation, which though was denied but was not found satisfactory, has passed the order which can never be said to be inconsonance with the provision as contained in Rule 43(b) of the Jharkhand Pension Rules and as such in the circumstances noted above, the authority does not have power to withhold pension.
4
At this stage, I may refer to a decision rendered in a case of Dr. Dudh Nath Pandey vs State of Jharkhand and others [2007(4) J.C.R1 (Jhr) (FB)] wherein it has been held as under:
" Under Rule 43(a) and 43(b) of the Bihar Pension Rules, there is no power for the Government to withhold Gratuity and Pension during the pendency of the departmental proceeding or criminal proceeding.
It does not give any power to withhold Leave Encashment at any stage either prior to the proceeding or after conclusion of the proceeding."
In this view of the matter, the order dated 20.7.2009 as contained in Annexure 6 whereby pension of the petitioner has been withheld is hereby quashed.
In the result, this application is allowed.
(R.R.Prasad, J.) ND/