Jharkhand High Court
Bhagwati Singh vs J.S.E.B. & Ors. on 1 February, 2013
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
W.P.(S) No. 1520 of 2007
[An application under Article 226 of the Constitution of India]
Bhagwati Singh ... ... ... Petitioner
Versus
1. Jharkhand State Electricity Board, Ranchi,
through its Chairman.
2. Secretary, Jharkhand State Electricity Board.
3. Director Finance, Jharkhand State Electricity Board
No.1 to 3 having their office at Engineering Bhawan Hatia,
P.O. Hatia, P.S. Jagannathpur, District Ranchi.
4. General Manager-cum-Chief Engineer, Transmission
Zone-1, of Jharkhand State Electricity Board,
having office at Kusai Colony, Ranchi, P.O. and
Police Station-Doranda, District- Ranchi.
5. Electrical Executive Engineer, Central Store,
Namkum of Jharkhand State Electricity Board
having office at Kusai Colony, P.O. And Police
Station Doranda, District-Ranchi. ..................Respondents
------------
For the Petitioner : M/s. S.N.Das, Advocate
: Mr. OM. P. Singh, Adv
For the Respondents : M/s R. Krishna, Adv
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court 1. The petitioner has filed writ petition seeking quashing of
order dated 30.09.2005 passed by the General Manager-cum-
Chief Engineer, who is Respondent No. 4 in the present
proceeding. I.A. No. 1998 of 2009 has also been filed challenging
the notice dated 04.02.2005 issued to the petitioner.
2. The petitioner who was appointed as Store-Keeper at
Patratu Thermal Power Station under the Bihar State Electricity
Board was promoted to the post of Assistant Store Keeper
(Selection Grade) with effect from 30.01.1978. After completion of
more than 20 years of service, the petitioner was promoted to the
post of Assistant Store-Keeper (Super Selection Grade) with effect
from 26.4.1990.
3. It appears that earlier the petitioner was suspended with
effect from 30.08.1976 and an enquiry was conducted, however
the petitioner was exonerated from the charges in Enquiry Report
dated 27.03.1978 and order of suspension was revoked. The
petitioner was given full wages for the suspension period and all
other consequential benefits of service were given to the
petitioner.
4. Again the petitioner was demoted with effect from
06.08.1994and two annual increments were ordered to be withheld with cumulative effect. Such order was passed by reopening the earlier case in which the petitioner was exonerated in enquiry report dated 27.3.1978.
5. Being aggrieved the petitioner raised a dispute through the Bihar State Electricity Board Field Kamgar Union and the matter was referred on 13.01.1997 which was numbered as Reference Case No. 18 of 1997 before the Labour Court, Patna. During the pendency of the matter by order dated 15.11.2000 the pay of the petitioner was reduced from Rs. 2975/- to 1300/- with effect from 6.8.1994. As the said order was passed without taking permission, of the Tribunal, the Assistant Labour Commissioner issued show- cause notice dated 06.11.2001. However, as the Opposite party did not file reply to show-cause notice, proceeding under Section 29 of Industrial Disputes Act was initiated against the General Manager-cum-Chief Engineer and Electrical Executive Engineer, Transmission, Central Stores which was numbered as C-III-102/02 and the learned Judicial Magistrate took cognizance on 02.07.2002. The Electrical Executive Engineer namely, Rajendra Pd. Singh preferred a petition being Cr.M.P. No. 957 of 2003 before the Patna High Court which is said to be pending.
6. The petitioner superannuated from service on 31.01.2002, however, he was paid G.P.F. only and other post-retirement benefits were not paid to him and as such, the petitioner filed writ petition being W.P.(S) No. 3458 of 2004 which was disposed of on 23.07.2004 on the assurance to the counsel for the respondents that the matter would be looked into. The petitioner was directed to make a representation with details of his claims and Respondent No.3 was directed to take necessary action on the same in accordance with law. It was further directed that if any amount is found payable to the petitioner it must be paid to him, however, if no amount is found payable to the petitioner, a reasoned order should be communicated to the petitioner.
7. As the order of this court dated 23.7.2004 was not complied with, the petitioner filed Contempt (C) 775/2005. The petitioner has taken stand that when the said Contempt Case was listed for hearing on 25.11.2006, the counsel for the Respondents handed over a copy of order dated 30.09.2005 to the counsel for the petitioner. The Contempt case was disposed of with liberty to the petitioner to approach appropriate forum. The petitioner filed the present writ petition challenging the said order dated 30.09.2005. On 28.06.2007 when the matter was listed for hearing, the counsel for the Respondent-Board appeared and sought one week's time to seek instruction and file counter-affidavit. Looking into the facts of the case, this Court vide order dated 30.04.2009 directed the Respondent No. 2 (Secretary, Jharkhand State Electrify Board) to personally appear in the Court.
8. A counter-affidavit has been filed on behalf of the Jharkhand State Electricity Board stating that the petitioner has been paid retiral benefits on account of G.P.F., G.S.S., and leave encashment however, pension as well as D.C.R. Gratuity of the petitioner were forfeited in accordance with Rule 139 of the Jharkhand Pension Rules. It has further been stated that during the period of posting of the petitioner in transmission Central Store-Keeper, Namkum, Ranchi as in-charge of Hatia Store, materials worth Rs. 32,04,846.54/- was found missing and show-cause notice dated 04.02.2005 and 06.09.2005 were issued to the petitioner requiring him to explain the said shortage. The petitioner did not reply to the same and hence order dated 30.09.2005 was passed. As services of the petitioner was found unsatisfactory, therefore service rendered by the petitioner was disapproved and in exercise of power under Rule 139 of the Bihar/Jharkhand Pension Rules, order dated 30.09.2005 was passed for forfeiture of the pension as well as DCR gratuity of the petitioner. A rejoinder to the counter-affidavit as well as I.A. No. 1998 of 2009 as mentioned hereinabove has been filed by the petitioner.
9. Heard counsel for the parties. The learned counsel for the petitioner submits that the action of the respondents is arbitrary and bad in law and suffers from malice in law. The petitioner has been harassed because of the prosecution launched against General Manager-cum-Chief Engineer and Executive Engineer in C-III-102-02 by the Assistant Labour Commissioner. He further submits that the petitioner retired on 31st January, 2002 and the impugned order has been passed on 30.09.2005. The said order was passed behind the back of the petitioner as the petitioner was never granted any opportunity of hearing nor any show-cause notice was issued to the petitioner. The alleged show-cause notice dated 04.02.2005 was never served upon the petitioner nor the impugned order dated 30.09.2005 was served upon the petitioner prior to 25.11.2006. The counsel for the petitioner further submits that the impugned order dated 30.09.2005 has been issued on the basis of the mis-conduct allegedly committed by the petitioner when he was posted at Dehri-on-Sone and for shortage of materials during the period five years prior to his retirement and therefore provision as contained in Rule 139 Bihar/Jharkhand Pension Rules cannot be resorted to.
10. The order dated 30.09.2005 (which contains several grammatical mistakes) is reproduced below:-
"JHARKHAND STATE ELECTRICITY BOARD OFFICE OF THE GENERAL MANAGER CUM-CHIEF ENGINEER, TRANSMISSION ZONE -1, KUSAI COLONY RANCHI-2.
Registered with A/D. No. 1787 Ranchi, Dated the 30.09.2005/ From, Er. Y.P. Yadav, G.M-Cum--Chief Engineer.
To, Sri Bhagwati Singh, Retd. Store Assistant, Village-Aandichak, P.O.-Churhatta, Dist-Rohtas, Bihar Sub:- Hon'ble High Court order dated 23.7.2004 passed in W.P.(S) No.-3458/2004.
Ref:- This office letter No. 196 dated 04.02.2005. Sir, Reference with the forfeature of your pension/D.C.R. Gratuity excesing the power under 139 of Bihar/Jharkhand pension Rule.
With reference to the notice dated 04.02.2005 issued earlier requesting you to submit your explanation against the decision taken by the compitant authority/Board for taking action under section 139 of the pension Rule. The compitant authority/Board has evaluated the service rendered by you and the service rendered by you has not been approved on account of the following main grounds:-
(A) During your posting at Dehri-on-Sone the misconducted was proved against you which rersulted into inflicting a mejor punishment against you(Reversion from Assistant Store keeper to Store Assistant post for the period.
(B) During your working for the last five years back your retirement a shortage of the meterials amounting to Rupees 32,81,284=84(Rupees Thirty two lacks eighty one thousand two hundred eighty four and paise eighty four) only has been detected. You ware the sale incharge of the particular store Godown namely Hatia Store(Outdoor meterials) under Transmission Central Store Namkum, Ranchi, to explain the aforesaid shortage amount a huge Revenue loss to the Board. Show-cause issued to you and the said show-
cause has practically been served upon you but instead the service of the aforesaid that you did not chose to reply. Your silance is the acceptance of the gilt with regard to aforesaid huge shortage.
It is realy surprising that after a prove misconduct of your part a punishment was imposed upon you there is 1316 dated 6.3.94 you didn't take a lession and against committed a Gross misconduct inflicting huge financial loss to the Jharkhand State Electricity Board .
Beside the aforesaid misconduct your service, during most of the time has not properly approved/appriciated by the authorities time to time and therefore considering the aforesaid matter relating to the service rendered by you is not long satisfactory.
Under the aforesaid circumstances the Board is complained the disapprove your service according your pension as well as D.C.R. Gratuity is forfitted forever from the date of issuance of this letter."
Yours faithfully sd/-
(Y.P. Yadav) G.M-Cum-Chief Engineer.
11. From the above-quoted order, it appears that it has been passed in exercise of power under Rule 139 Bihar/Jharkhand Pension Rules. It further appears that for arriving at a conclusion that the service rendered by the petitioner can not be approved two incidents have been taken into consideration; first relates to mis-conduct committed by the petitioner when he was posted at Dehri-on-Sone and second relates to shortage of materials found five years prior to his retirement. There is a mention of show- cause notice dated 04.02.2005 issued to the petitioner and it has been stated in order dated 30.9.2005 that the said show-cause notice has practically been served upon him. It is further stated in order dated 30.9.2005 that besides the aforesaid mis-conduct the service of the petitioner during most of the times was not properly approved/appreciated by the authority and therefore the Board was constrained to dis-approve the services of the petitioner.
12. From the aforesaid order dated 30.09.2005 it is clear that the Respondent-authority has taken into account the misconduct allegedly committed by the petitioner while he was posted at Dehri-on-Sone, however, the respondent-authority has completely ignored the fact that the petitioner was exonerated in the enquiry conducted for the said misconduct vide enquiry report dated 27.03.1978 and all consequential benefits of service were paid to the petitioner. Thereafter, the petitioner was granted promotion to the post of Assistant Store keeper (Selection Grade) and Assistant Store keeper (Super Selection Grade). For the misconduct said to be committed by the petitioner when he was posted at Dehri-on- Sone the respondent again passed an order dated 06.08.1994 whereby the petitioner was demoted with effect from 06.08.1994 and his two annual increments were ordered to be withheld with cumulative effect. A labour dispute was raised by the petitioner and the matter is said to be still pending in the Court of Assistant Labour Commissioner. The respondents have not denied the fact that the petitioner was exonerated by enquiry report dated 27.3.1978 and he was granted further promotions. It is, thus clear that order dated 30.09.2005 has been passed taking into account irrelevant materials.
13. The petitioner was appointed on 09.03.1965 and the order of demotion was passed on 06.08.1994. The petitioner has thus served for more than 30 years and during that period he was granted promotions. The second ground taken in order dated 30.09.2005 relates to shortage of materials detected five years prior to retirement of the petitioner. No specific date has been mentioned in order dated 30.09.2005. I further find that under Rule 139 the authority sanctioning the pension is required to issue show-cause notice specifying the reduction proposed to be made and the grounds thereof. Memo No. PC-11-40-72/75-975 F dated 19.01.1976 was issued in this regard. Rule 139 of Jharkhand Pension Rules is extracted below:-
"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 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."
14. On a plain reading of notice dated 04.02.2005 , it appears that this notice was issued seeking explanation from the petitioner why the departmental proceeding under Pension Rules, Bihar Service Code/Standing Order of the Board should not be initiated against the petitioner. There is nothing on record to even indicate that any departmental proceeding was initiated against the petitioner. Learned counsel for the petitioner also draws attention of this Court to Rule 43 of Jharkhand Pension Rules, 2000 and a Full Bench decision of this Court in the case of "Dr. Dudh Nath Pandey Vs State of Jharkhand & Ors." Rule 43 of Jharkhand Pension Rules, 2000 is extracted below:-
"43.(a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.
(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 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."
15. The scope under Rule 43 and Rule 139 of Bihar Pension Rules, (which has been adopted by the State of Jharkhand) was considered by the Hon'ble Supreme Court in the case of "State of Bihar & Ors. Vs. Mohd. Idris Ansari" reported in 1995 Suppl (3) SCC 56, in which the Hon'ble Supreme Court 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.
8. There remains the question whether any assistance can be derived by the appellant authorities from Rule 139 of the Rules. The said Rule 139 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 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."
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 of the first time. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture:
1. A retired government servant can be proceeded against 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.
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 be 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 proceeding against him. In the present case, the respondent retired on 31-1-1993 and the show
-cause notice was issued on the ground of grave misconduct on 27.9.1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore, to be read with Rule 43(b).
Such notice therefore, could cover any misconduct if committed within 4 years prior to 27-9-1993 meaning thereby it should have been committed during the period from 26-9-1989 up to 31-1-1993 when the respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139 (a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27-9-1993 invoking powers under Rule 139 (a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show
-cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139 (a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13-12-1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after the expiry of four years from 1986-87, as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii).
Consequently the show-cause notice dated 27-9-1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed. There is no order as to costs".
16. The show-cause notice dated 04.02.2005 was issued three years after the retirement of the petitioner and more than eight years when the alleged shortage of material was detected. Another incident relates to the period 1975-1976. In view of provisions contained in Rule 43 and Rule 139 of Bihar/Jharkhand Pension Rules, show-cause dated 4.2.2005 is clearly barred by time. Further, I find substance in the contention raised on behalf of the petitioner that order dated 30.09.2005 was not served upon the petitioner prior to 25.11.2006 nor show-cause dated 4.2.2005 was served upon the petitioner prior to that date. The contention of the petitioner is corroborated from the averment in order dated 30.09.2005 itself wherein it has been recorded that, " show cause issued to you and the said show-cause has practically served upon you." In that view of the matter, I am of the opinion that order dated 30.09.2005 requires interference by this court. The full Bench judgment of this court in the case of "Dr. Dudh Nath Pandey Vs State of Jharkhand & Ors." and the judgement of the Hon'ble Supreme Court in the case of "State of Bihar & Ors. Vs. Mohd. Idris Ansari" fully support the case of the petitioner. On a consideration of the facts and materials on record, I am of the opinion that order dated 30.09.2005 and notice dated 04.02.2005 are not sustainable in law. I further find that order dated 30.09.2005 suffers from non-application of mind and on that ground alone it is liable to be quashed. Accordingly, order dated 30.09.2005 is quashed. This writ petition is allowed. The respondents are directed to calculate all admissible dues of the petitioner within a period of eight weeks. There shall however, be no order as to cost.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated the 1st February, 2013 shanant/N.A.F.R.