Ashoka Nand Prasad vs State Of Jharkhand & Ors on 30 July, 2014

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Jharkhand High Court

Ashoka Nand Prasad vs State Of Jharkhand & Ors on 30 July, 2014

The petitioner, after his retirement and upon his conviction in a criminal case by the Trial Court being R. C. Case No. 43(A)/96, has been imposed with a punishment by the impugned order dated 24.10.2008, contained at Annexure-1, issued by the Additional Secretary, Finance Department withholding his entire pension in exercise of the power under Rule 43 of the Jharkhand Pension Rules, as also for recovery of the amount already paid to him.

The petitioner, who was serving as an Accountant at Ranchi Treasury, retired on 31.01.1998. He was convicted in the case i.e. R. C. Case No. 43(A)/96 popularly known "Fodder Scam Cases" by the trial Court in the year 2007. An appeal against his conviction is pending before the learned Single Bench of this Court being Cr. Appeal (SJ) No. 1145 of 2007 in which he is on bail. He was drawing pension after his retirement, which has been stopped by the impugned order. The petitioner has relied upon the judgment rendered by the learned Single Judge of this Court in the case of Bal Krishna Dubey Vs. State of Jharkhand & Ors. in W. P. (S) No. 1656 of 2009 vide judgment dated 11.11.2009. In the said case also the pension of the said employee upon his conviction and sentence was stopped and the amount paid was sought to be recovered. It is submitted by the learned counsel for the petitioner that upon consideration of Rule 43 of the Jharkhand Pension Rules, this Court held that such an order has been passed without any opportunity of hearing in violation of the principle of natural justice, which has rendered it vitiated.

In the instant case also, according to the petitioner, the impugned order has been passed without any notice or opportunity of hearing. Further under Rule 43(a)/(b), it is only the State Government which can pass such an order, which is not a case here. Therefore, it is submitted that the impugned order needs to be quashed.

The respondent-State have appeared and through their counter affidavit have sought to justify the issuance of the impugned order on conviction of the petitioner in a criminal case. It is not in dispute that the impugned order has been issued without any notice or opportunity of hearing to the petitioner.

Having heard learned counsel for the parties and upon perusal of the records of the case and the judgment relied upon by the petitioner also, this Court finds that the order impugned has been passed without any opportunity of hearing to the concerned employee, though it has caused an adverse affect on the employee. It is, therefore, in violation of the principle of natural justice. While dealing with similar issue, learned Single Bench of this Court earlier in the case of Bal Krishna Dubey (Supra) upon noticing the provision of Rule 43(b) of the Jharkhand Pension Rules had occasion to render the following opinion:-

"The source of such power on part of the Government has been attributed in the counter-affidavit to Rule 43. The said Rule is reproduced in its entirety below, for ready reference.

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 petitioner 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 cause 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 Commissioner, 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.

It would appear from the said Rule that upon a conviction of an employee by a criminal court for a serious crime, the Government has multiple choices namely to withhold or not to withhold the pension, to withdraw or not withdraw the pension, to withhold or withdraw not the whole but the part of the pension.

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 said case was also considered and followed in the case of Rajendra Prasad Vs. the State of Jharkhand & Ors. in W.P.(S). 1764 of 2012 vide judgment dated 23.04.2014.

Upon consideration of the said Rule and the judgments referred to hereinabove, it is, therefore, apparent that in the wake of multiple choices provided under the Rule to the authority and in exercise of each of those, the employee may be inflicted with adverse consequences, the principles of natural justice have to be read inbuilt as the same has not been expressly excluded by the Statute. Therefore, the impugned order dated 24.10.2008, contained at Annexure-1, cannot survive and it is, accordingly, quashed.

However, it is left open to the State Government to take a fresh decision in accordance with law.

Accordingly, the writ petition is allowed in the aforesaid manner.

(Aparesh Kumar Singh, J.) Kamlesh/

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Jharkhand High Court