Jharkhand High Court
Rajeshwar Prasad vs The State Of Jharkhand on 22 August, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2729 of 2010
Rajeshwar Prasad, Son of Late Raj Ballav Ram, Resident of House
No. 618/B, Sector-2, P.O. & P.S.- Dhurwa, Ranchi, District- Ranchi.
... ... Petitioner
Versus
1. The State of Jharkhand
2. The Secretary, Road Construction Department, Government of
Jharkhand, P.O. & P.S.- Dhurwa, District- Ranchi
3. The State of Bihar
4. The Secretary, P.W.D., Road Construction Department,
Government of Bihar, Vishwasaraia Bhawan, Bailey Road, Patna
(Bihar)
5. Engineer-in-Chief-cum- Additional Commissioner-cum-Special
Secretary, Road Construction Deptt., Vishwasaraia Bhawan,
Bailey Road, Patna (Bihar).
... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Shekhar Prasad Sinha, Advocate For the Respondents : Mr. Amitesh Kumar Geasen, Advocate
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18/22.08.2022 Heard Mr. Shekhar Prasad Sinha, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Amitesh Kumar Geasen, learned counsel appearing on behalf of the respondents.
3. This writ petition has been filed for the following reliefs:
"(A) For quashing the Office Order contained in Memo No. 4560(S) Ranchi dated 16.08.2010 issued by Engineer-in-Chief (Respondent No. 5) whereby Office Order has been passed, (without consultation before passing Final Order with the Bihar Public Service Commission which is mandatory requirement as laid down Under Rule 43(c) of Jharkhand Pension Rules) that charge levelled against the Petitioner has been proved in the Departmental Proceeding on which account a Decision has been taken for making deduction of 10% from the amount of Pension and Gratuity of the Petitioner and also a further Decision has been taken that for the period from 22.11.06 to 27.09.2008 when the Petitioner had remained under suspension, only subsistence Allowance for the aforesaid period would be paid to the Petitioner and no payment of salary for the said period would be made to the Petitioner;
(B) The Petitioner who was superannuated on 31.01.2009, prays for issuance of appropriate Writ(s), Order(s) or Direction(s) commanding upon the Respondents to make payment of arrears of salary for the period w.e.f. 01.01.1998 to 11.05.2000 including 2 D.A. after commutation of Revised Higher Scale with 18% Interest, to make payment of full Pension amount, and Gratuity after commutation of Revised Higher Scale pending the Final Disposal of Criminal Case against the Petitioner and others being registered as Vigilance Case No. 9/97 dated 29.05.1997 alleging interalia involvement of Petitioner alongwith others with respect to misappropriation of Rs. 32,05,000/-; (C) And the Petitioner further prays for issuance of Writ(s), Order(s) or Direction(s) to the Respondents to make payment of full amount of Earned Leave Encashment after commutation of Revised Higher Sale with 18% Interest on the ground that in view of Full Bench Decision of this Hon'ble Court reported in 2007(4) JCR 1 (Dr. Dudhnath Pandey versus The State of Jharkhand and Others) in which it has been held that there is no Power at all in the State Government to withhold the Earned Leave Encashment under Rule 43(b) at any stage."
Arguments on behalf of the Petitioner
4. The learned counsel for the petitioner submits that the petitioner had superannuated from service on 31.01.2009 and he filed the writ petition before this Court on 01.06.2010 seeking a direction upon the respondents to make payment of full Pension amount, Gratuity, amount of earned leave encashment, arrears of salary with effect from 01.01.1998 to 11.05.2000 after commutation of revised Higher Scale with Statutory interest by relying upon a judgement passed by Hon'ble Full Bench of this Court reported in 2007 (4) JCR 1 (Dr. Dudh Nath Pandey Vs. State of Jharkhand and Others) wherein it was held that the government has no power to withhold pension or gratuity on ground of pendency of judicial or departmental proceedings.
5. The learned counsel for the petitioner further submits that at the time of filing of the writ petition, the departmental proceedings was pending and 10% of the pension of the petitioner was withheld at that stage.
6. The learned counsel submits that during the pendency of this writ petition, the petitioner filed one interlocutory application challenging the final order passed in the departmental proceedings which is dated 16.08.2010 and the interlocutory application was allowed. Consequently, the final order dated 16.08.2010 issued by the respondent no. 5 is under challenge.
7. The learned counsel for the petitioner, while assailing that impugned order dated 16.08.2010, has advanced two arguments;
3(i) The petitioner was never served with a copy of the enquiry report of the enquiry officer and therefore, the impugned order has been passed in gross violation of principles of natural justice,
(ii) No notice as provided under Rule 139(c) of Jharkhand Pension Rules was ever issued to the petitioner prior to making the order of deduction of 10% pension and gratuity and before converting the departmental proceedings under Rule 43(b) of Jharkhand Pension Rules.
8. The learned counsel for the petitioner, upon a query by this Court, has stated that although no statement as such has been stated in the writ petition regarding non receipt of the enquiry report, but a statement to that effect has been made in the rejoinder to the counter- affidavit filed by the petitioner and for this, he has referred to paragraph 4 of the rejoinder.
Arguments on behalf of the Respondents
9. The learned counsel appearing on behalf of the respondents, on the other hand, submits that there is no illegality or perversity in the impugned order and the departmental proceedings. He has referred to the impugned order and has submitted that the petitioner had retired on 31.01.2009 during the pendency of departmental proceeding and vide order dated 12.08.2009, the proceeding was continued under Rule 43(b) of the aforesaid rules. He also submits that in the impugned order itself it has been mentioned that in the enquiry proceedings, the petitioner was found guilty and the enquiry report was forwarded to the petitioner vide letter no. 2377(s) dated 06.05.2010 and the petitioner was asked to give his second show-cause reply as to why 10% pension and gratuity be not deducted. In response to such notice, the petitioner had responded vide letter dated 14.07.2010 and upon consideration of such reply, the impugned order has been passed.
10. The learned counsel submits that there is no statement in the writ petition that the letter dated 06.05.2010 was not served upon the petitioner or that the petitioner did not file the reply dated 14.07.2010. The petitioner has not even brought on record the reply to the 2 nd show-cause filed by the petitioner dated 14.07.2010 which amounts to material suppression.
411. The learned counsel for respondents further submits so far as notice under Rule 139 of Jharkhand Pension Rules is concerned, the impugned order has not been passed under the said provision and therefore, no notice under Rule 139 was required to be issued to the petitioner prior to passing the order under Rule 43(b) of Jharkhand Pension Rules.
Findings of this Court
12. After hearing the learned counsel for the parties, this Court finds that it is not in dispute that the petitioner was appointed on the post of Junior Bill Clerk under Building Construction Department, Patna on 23.08.1971 and on 02.12.1997, his services were under PWD, Road Construction Department. Admittedly, a Vigilance Case was instituted inter alia against the petitioner which was registered as Vigilance P.S. Case No. 009/97 dated 29.05.1997 which remained pending. The petitioner was asked to join office of the Chief Engineer, Road Construction Department, Ranchi vide office order dated 08.05.2000 and upon creation of State of Jharkhand, the petitioner continued under the State of Jharkhand till his retirement on 31.01.2009.
13. The petitioner had certain grievance regarding payment of arrear pay, dearness allowance and other allowances for the period from 01.01.1998 to 11.05.2000. After his retirement, the petitioner was not paid full post retiral benefits and the petitioner had also claimed certain higher pay-scale with effect from 01.01.2006 in terms of 6th pay revision.
14. Consequently, the petitioner served a legal notice dated 01.02.2010 (Annexure-7) upon the respondents raising his grievance. Having no response, the petitioner filed the present writ petition before this Court and relied upon a Full Bench Judgement passed by this Court in L.P.A. No. 714 of 2004 (Dr. Dudh Nath Pandey Vs. State of Jharkhand and Others) decided on 28.08.2007 (Annexure-
8) wherein it was held that the Government has no power to withhold gratuity and pension during the pendency of criminal proceedings and the Government also has no power to withhold leave encashment either prior to the proceedings or after the conclusion of the proceedings.
515. The petitioner, in the original writ petition, claimed arrear of salary including DA for the period from 01.01.1998 to 11.05.2000 after commutation of the Revised Higher Scale with 18% interest; payment of full pension amount and gratuity after commutation of Revised Higher Scale pending final disposal of criminal case against the petitioner with respect to misappropriation of Rs. 32,05,000/-; Full amount of Earned Leave encashment after commutation of Revised Higher Scale with 18% interest.
16. A counter-affidavit was filed in the present case wherein it has been stated that only final pension, final gratuity, leave encashment and arrears of payment pertaining to the period between 01.01.1998 to 11.05.2000 was pending on account lack of information from State of Bihar. It was stated that the petitioner was suspended vide office order dated 22.11.2006 and a departmental proceeding was initiated against the petitioner vide office order dated 23.11.2006 against alleged illegal withdrawal of Rs. 32.5 lakhs from government treasury. It was also mentioned in the counter-affidavit that on retirement on 31.01.2009, the departmental proceeding was drawn under Rule 43(b) of Jharkhand Pension Rules, 1950; enquiry report was submitted and petitioner was issued 2nd show cause vide letter dated 06.05.2010 as to why 10% final pension and gratuity should not be deducted. Accordingly, vide office order dated 16.08.2010, the order of punishment against the petitioner was passed wherein it was directed that there would be a deduction of 10% pension and gratuity and the petitioner would be entitled for no further payment apart from subsistence allowance during the period of suspension i.e. from 22.11.2006 to 27.09.2008.
17. The counter-affidavit also enclosed a calculation-sheet showing the calculation of the pension and payable pension to the extent of 90% provisionally with effect from 01.02.2009. The sanction order of pension calculation sheet is contained at letter dated 23.10.2009(Annexure- B) to the counter-affidavit a copy of which was also forwarded to the petitioner vide memo no. 5638(S) dated 23.10.2009. It was clearly mentioned that final pension and gratuity was not sanctioned because the period spent on waiting for posting was not regularized by Government of Bihar, Road Construction 6 Department for which the respondent had asked for a clarification from the Road Construction Department vide letter dated 22.12.2010 and awaiting such response, the papers were not forwarded for final pension and gratuity to Accountant General, Jharkhand, Ranchi. The letter written to the Accountant General, Jharkhand is 23.10.2009 (Annexure- B). With regard to leave encashment and salary due pertaining to the period the petitioner had served with the Government of Bihar, it was stated that the records were not available with the respondents for which a request was sent to Government of Bihar, Road Construction Department vide letter dated 07.08.2010 (Annexure-D) and it was mentioned that as soon as the records will be made available, necessary action will be taken and sanction will be done accordingly.
18. As the order of punishment was annexed alongwith the counter- affidavit, the petitioner challenged the same by filing interlocutory application being I.A. No. 1958 of 2012 which was allowed vide order dated 29.10.2012 and pursuant to order dated 29.10.2012, amended writ petition has been filed with an additional prayer challenging the office order dated 16.08.2010 issued by respondent no. 5, which was the order of punishment passed against the petitioner in the departmental proceeding.
19. During the course of argument, the counsel for the petitioner had primarily raised three points: -
(a) The petitioner was never served with a copy of the enquiry report of the enquiry officer and therefore, the impugned order of punishment dated 16.08.2010 has been passed in gross violation of principles of natural justice.
(b) No notice was issued to the petitioner in terms of Rule 139(c) of Jharkhand Pension Rules prior to passing the order of deduction of 10% pension and gratuity and before converting the departmental proceeding under Rule 43(b) of Jharkhand Pension Rules.
(c) The Government has no power to withhold pension or gratuity on ground of pendency of judicial or departmental proceeding for which the petitioner has relied upon the judgement passed by this Court in the case of Dr. Dudh Nath Pandey (Supra).
Point no. (a) 7
20. So far as the grievance of the petitioner regarding violation of principles of natural justice on account of non-supply of enquiry report is concerned, this Court finds from the impugned order that it has been recorded therein that the enquiry report was forwarded to the petitioner vide letter no. 2377(s) dated 06.05.2010 and the petitioner was asked to give his 2nd show-cause reply as to why 10% pension and gratuity be not deducted. In response to such notice, the petitioner had responded vide letter dated 14.07.2010 and upon consideration of such reply, the impugned order has been passed.
21. No statement has been made by the petitioner in the writ petition that the letter dated 06.05.2010 was never served upon the petitioner or that the petitioner did not file any reply dated 14.07.2010 as clearly mentioned in the impugned order. The petitioner has not even filed his reply dated 14.07.2010 which has been mentioned in the impugned order. In view of the aforesaid clear recordings in the impugned order and in absence of any specific statement made by the petitioner with regard to the letter dated 06.05.2010 and also its reply dated 14.07.2010, the argument of the petitioner that the petitioner was not served with a copy of the enquiry report and consequently, there has been gross violation of principles of natural justice while passing the impugned order, is devoid of any merit and is accordingly rejected.
22. Point no. (a) is accordingly decided against the petitioner. Point no. (b)
23. So far as the argument with regard to Rule 139(c) and Rule 43(b) of Jharkhand Pension Rules is concerned, this Court finds from the perusal of the impugned order that the petitioner had retired during the pendency of departmental proceeding and it has been specifically recorded in the impugned order that vide order dated 12.08.2009 the departmental proceeding was continued under Rule 43(b) of the aforesaid Rules.
24. In the judgement passed by Hon'ble Full Bench of Hon'ble Patna High Court in the case of "Shambhu Saran Vs. The State of Bihar & Ors." reported in 1991 SCC OnLine Pat 341, the arguments advanced by the petitioner has been recorded in paragraph 3 of the said judgement. It was argued that in a case where a disciplinary 8 proceeding has been initiated against an employee, after his superannuation, such departmental proceeding cannot be continued unless there is a specific order of the government. It was also argued that in any event in such a case proceeding can be taken only under Rule 139 and not under Rule 43(b) of the pension rules. The aforesaid submission has been negated and it has been held in paragraphs 4 and 5 as under:
"4. In our opinion, the scope of Rule 43(b) and Rule 139 are quite different. There is no question of applicability of Rule 139 if Rule 43 is attracted. Rule 139 deals with a different kind of situation.
5. The only point involved before us is whether Rule 43(b) is attracted in the facts of this case and whether under the said Rule, even when such disciplinary proceeding was initiated before the retirement, whether it could be continued after the retirement under the provisions of Rule 43(b). It is true that Rule 43 does not say expressly that such proceeding may be continued after such superannuation. However, in our opinion, it is inherent in the said Rule. The opening words of proviso
(a) state that "such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during reemployment". In our opinion such expression makes it quite clear that such enquiry if initiated before, may be continued even after such retirement. In any event, by necessary implication also it is quite clear that continuance of such enquiry after superannuation is permitted by the said Rules. In this context, it may be pointed out that if the Government servant is in service, the disciplinary proceeding can be initiated against him and certain punishments may be imposed upon him as provided in the relevant Classification, Control and Appeal Rules. However, such punishments cannot be imposed upon him if retired from service. After his retirement he cannot be punished otherwise but pension can be withheld and other steps taken as contemplated by the said Rule 43. Punishments, major or minor, like dismissal or removal from service or withholding of increments etc., which contemplates that he is still in service, cannot be imposed upon him. In such view of the matter, if such a person has committed some wrong, merely because he retires and no remedy remains available to the Government even if there was good case against him, then it would be incongruous. Accordingly, such a provision was made to that effect. It is in order to fill up this lacuna that provisions like rule 43(b) has been introduced."9
The Hon'ble Full Bench ultimately answered the reference in paragraph 13 as under:
"13. In that view of the matter, we answer the reference by holding as follows:-
(i) In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary.
(ii) The decision of the Division Bench in case of Singeshwari Sahay v. The State of Bihar reported in 1979 BBCJ 735 and the law laid down therein were not correctly decided."
25. The order of punishment has been passed in the instant case under Rule 43(b) of the Pension Rules and there is no applicability of Rule 139 of the aforesaid Rules. Accordingly, the challenge to the impugned order of punishment on the ground that no notice as provided under Rule 139(c) of Jharkhand Pension Rules was ever issued to the petitioner prior to making the order of deduction of 10% pension and gratuity and before converting the departmental proceedings under Rule 43(b) of Jharkhand Pension Rules, is devoid of any merits. Considering the aforesaid facts and circumstances of the case and the manner in which the respondents have proceeded against the petitioner in the matter of concluding the departmental proceedings and passing of the order of punishment after the retirement of the petitioner by exercising power under Rule 43(b), this court does not find any illegality or perversity in the impugned order or proceedings.
26. Point no. (b) is accordingly decided against the petitioner. Point no. (c) and other reliefs relating to service period
27. After going through the judgement passed by Hon'ble Full Bench in the case of Dr. Dudh Nath Pandey (Supra), this Court finds that the law is well settled that the respondents do not have any power to withhold pension or gratuity on the ground of pendency of judicial or departmental proceeding and further, there is no power at all for the State Government to withhold the leave encashment under Rule 43(b) 10 at any stage. Paragraphs 19, 20 and 21 of the aforesaid judgement are quoted as under:
"19. As indicated above, that Rule 43(b) does not contemplate the power to withhold the pension etc. during the pendency of judicial proceeding or departmental proceeding. It contemplates such power only when that pensioner has been found guilty of grave misconduct in those proceeding. Therefore, Rule 43(b) would not apply in the instant case.
20. It is also to be noticed that Rule 43(b) is relating to withholding of the pension or any part of it. Leave encashment is not covered under Rule 43 (b). As such, there is no power given to the State Government to withhold the leave encashment under Rule 43(b) either during the pendency of the proceeding of after conclusion of the proceedings.
21. Therefore, we are to hold while answering the first question that the Government has no power to withhold pension or gratuity on the ground of pendency of judicial or departmental proceedings and there is no power at all for the State Government to withhold the leave encashment under Rule 43(b) at any stage."
The Hon'ble Full Bench summed up its finding at paragraph 35 of the judgement which are quoted as under:
"35. To sum up the answer for the two questions are as follows:-
(i) Under Rule 43(a) and 43(b) of 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.
(ii) The Circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law.
Both the questions are answered accordingly."
28. Upon perusal of the counter-affidavit, whose details have been mentioned above, it is apparent that only provisional pension and gratuity was sanctioned to the petitioner on account of non-availability of certain information from State of Bihar including the status of the period spent on waiting for posting i.e. period from 01.01.1998 to 11.05.2000 as to whether the same was regularized by the Government of Bihar, Road Construction Department. Further, the leave encashment was also not paid awaiting certain information from State of Bihar. It was specifically mentioned that the necessary action for sanction of the same will be done according to the rule as soon as 11 the records are received. Thus, it is clear that leave encashment was also not paid awaiting certain information from State of Bihar.
29. Thus, this Court finds that the aforesaid action of non - payment of full pension and non-payment of leave encashment at the time of filing the writ petition was not on account of pendency of any departmental or criminal proceedings but on account of the fact that some information was awaited from the state of Bihar although the department proceedings were pending against the petitioner at the time of filing of the writ petition on 01.06.2010. Therefore, the judgment relied upon by the petitioner passed by this Court in the case of Dr. Dudh Nath Pandey (Supra) does not apply to the facts and circumstances of this case as the pension, gratuity and leave encashment of the petitioner was not withheld on account of pendency of any departmental proceedings.
30. However, during the pendency of this case the departmental proceedings against the petitioner has led to passing of order of punishment vide office order dated 16.08.2010, wherein it has been directed that there would be a deduction of 10% pension and gratuity and the petitioner would be entitled for no further payment apart from subsistence allowance during the period of suspension i.e. from 22.11.2006 to 27.09.2008.
31. There can be no dispute that Gratuity is one-time payment and pension is a monthly payment. Considering the fact that the order of punishment has been passed on 16.08.2010, the petitioner would be entitled to full pension for the period from his date of retirement till 15.08.2010 and deduction of 10% pension will commence only from 16.08.2010. Gratuity being a one-time payment, the petitioner will be entitled to only 90% of the gratuity and no more. It is also important to note that vide order dated 29.11.2013 passed by this court it was made clear that the respondents would continue to pay the admitted dues and 90% of the pension amount to the petitioner.
32. A counter-affidavit has also been filed by State of Bihar wherein it has been mentioned that the period of service of the petitioner from 01.01.1998 to 11.05.2000 has been regularized by the State of Bihar vide office order no. 90 dated 21.06.2012 (Annexure- A). Upon perusal of the aforesaid Annexure- A dated 21.06.2012, it is 12 apparent that the period from 01.01.1998 to 11.05.2000 was directed to be treated as extra ordinary leave.
33. Although the required information from the state of Bihar in order to finalize the payment of pension, gratuity and leave encashment has been brought on record in this case by the State of Bihar but the present status of the claim of the petitioner with regard to payment of leave encashment, arrears of salary etc. has not been made clear in the records of the case. The petitioner had certain grievance regarding payment of arrear pay, dearness allowance and other allowances for the period from 01.01.1998 to 11.05.2000 and the petitioner had also claimed certain higher pay-scale with effect from 01.01.2006 in terms of 6th pay revision. These aspects of the matter are required to be addressed by the respondents at the first instance.
34. Under aforesaid circumstances, it is sufficient to observe that the if the petitioner has any grievance in connection with any of the dues while he was in service for which grievance has been raised by the petitioner in this writ petition, it will be open to the petitioner to approach the respondent no. 2 by filing a detailed representation along with the records of this case and a copy of this order. Upon receipt of such representation, the Respondent no.2 shall look into the grievance of the petitioner and pass a reasoned order within a period of 3 months from the date of filing of representation and communicate the same to the petitioner through speed post at the address mentioned in the representation itself. If any amount is found admissible, the respondent no.2 shall take appropriate steps so that the same is paid to the petitioner within a period of 3 months from the date of the reasoned order. The respondent no.2 will also ensure that the admissible differential amount of leave encashment, pension of the petitioner from the date of retirement i.e. 31.01.2009 till the date of punishment i.e. 16.08.2010, be also paid to the petitioner within the aforesaid time frame.
Point no. (c) is accordingly decided in the above terms.
35. This writ petition is disposed of in terms of the aforesaid findings, observations and directions.
Pankaj (Anubha Rawat Choudhary, J.)