Jharkhand High Court
Saket Bihari Lall vs State Of Jharkhand on 3 January, 2023
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 557 of 2014
Saket Bihari Lall, son of Late Ram Prasad Lall, resident of Devi
Mandap Road, Hesal, P.O. Hehal, P.S. Sukhdeonagar, District Ranchi
... ... Petitioner
Versus
1. State of Jharkhand, through the Secretary, Finance, Government of
Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District
Ranchi
2. Principal Secretary, Department of Finance, Government of
Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District
Ranchi
3. Deputy Commissioner, Ranchi, P.O. Ranchi, P.S. Kotwali, District
Ranchi
4. Accountant General, Jharkhand, Ranchi, North Office Para, Doranda,
P.O. & P.S. Doranda, District Ranchi
5. Treasury Officer, Doranda Treasury, Doranda, P.O. & P.S. Doranda,
District Ranchi ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Pandey Neeraj Rai, Advocate
: Mr. Rohit Ranjan Sinha, Advocate
: Mr. kchansh Kishore, Advocate
For the Respondents : Mr. Rahul Kamlesh, Advocate
: Mr. Sunil Kr. Agarwal, Advocate
---
18/03.01.2023
1. Heard the Learned counsel for the parties.
2. This writ petition has been filed for the following reliefs: -
"(a) Quashing the order of the Finance Secretary, Government of Jharkhand as contained in memo no. 2069 dated 27.09.2012 (Annexure-7) holding the same as arbitrary, illegal, violative of Principles of Natural Justice, unwarranted, without jurisdiction and unconstitutional.
(aa) Quashing/setting aside the order dated 24.5.2014 purportedly passed under Rule 43(b) & 139 of the Jharkhand Pension Rules by the Deputy Commissioner, Ranchi (as contained in Annexure-14);2
(ab) direct the respondents to pay pensionary dues for the period of 21 months (March 2009 to 28th November, 2010) prior to the conviction in criminal case;
(b) Directing the respondents to pay full pension and gratuity to the petitioner alongwith interest @ 18% P.A. over and above the unpaid part of it with effect from the date of petitioner's superannuation;
(c) saddling the respondents with exemplary cost to be paid to the petitioner."
Arguments of the Petitioner on various dates
3. On 25.02.2021, the learned counsel for the petitioner had submitted that following questions of law are involved in this case: -
(i) Whether an order under Rule 43 (a) of Bihar Pension Rules (herein after to be referred as Pension Rule) can be passed without notice to the petitioner?
(ii) Whether the impugned order passed under Rule 43(a) of the Pension Rules transpires non application of mind as it has been passed without ascertaining and without coming to a definite decision with respect to forfeiture etc.?
(iii) Whether denial of pension to this petitioner prior to his conviction is arbitrary?
(iv) Whether the order passed under Rule 43(b) of the Pension Rule is sustainable in the eye of law when an order under Rule 43(a) was in existence?
(v) Whether the Order under Rule 43 (b) of the Pension Rules passed by the Deputy Commissioner, Ranchi is legal?
(vi) Whether the respondents are justified in adopting pick and choose method in giving pension to the similarly situated employees who are also convicted in the AHD Scam cases like this petitioner and denial of the same to this petitioner?
4. On 25.02.2021 itself, the learned counsel for the respondents was directed to file reply on the aforesaid issues. Pursuant thereto, a counter affidavit dated 26.10.2021 has been filed in the present case.
5. On 12.09.2022, learned counsel for the petitioner had submitted that there are two impugned orders passed in this case, one is under Rule 43 (a) and other is under Rule 43(b) of Jharkhand Pension Rules. From perusal of Annexure-14, order passed under Rule 43(b), it appeared that charge sheet was issued to the petitioner in Prapatra-ka prior to his retirement and the proceeding was continued after his retirement by purported exercise of powerunder Rule 43(b) of the Jharkhand Pension Rules. It was observed that Prapatra-ka was not on record and it was not 3 clear from the records as to whether the petitioner was forwarded a copy of the enquiry report for his comments by way of second show cause prior to passing the impugned order dated 24.05.2014. From the averments made in the writ petition, it was stated that the petitioner obtained a copy of the enquiry report through Right to Information. There were other material facts also which were required to be seen which touched upon the manner of exercise of power in the present case by the respondents in the matter of passing the order under Rule 43(a) and Rule 43(b). Accordingly, learned counsel for the respondents was directed to produce the entire records of the case including the record of the enquiry officer which culminated in passing of the aforesaid two impugned orders in the present case. Consequently, another supplementary counter affidavit was filed on 12.10.2022.
6. On 14.10.2022, learned counsel for the petitioner has advanced his argument on the point of alleged procedural irregularity in the impugned proceedings which has ultimately led to passing of orders under Rule 43(a) as well as Rule 43(b) of Jharkhand Pension Rules.
It was argued by the learned counsel appearing on behalf of the petitioner that no opportunity of hearing was given to the petitioner prior to passing of the order and there has been gross violation of principles of natural justice. It has been submitted that mere conviction in a criminal case does not automatically translate into full stoppage of pension. So far as proceeding under Rule 43(b) is concerned, the learned counsel for the petitioner had submitted that the enquiry report has not dealt with any of the allegations which were made against the petitioner under Prapatra 'Ka'. Rather, as per the enquiry report, the charge-sheet was filed against the petitioner in the CBI case and on that ground, the enquiry report was submitted against the petitioner. He has also submitted that on the last date fixed by the authority in the enquiry proceedings pursuant to order dated 19.11.2013 i.e. on 09.02.2014, neither the petitioner nor the departmental representative had appeared and it has been wrongly recorded in the impugned order that 09.02.2014 was the date fixed for the defence argument of the petitioner. It is submitted that the order dated 19.11.2013 reflects that the petitioner was required to produce the order passed by the Court. The learned counsel for the petitioner has also 4 submitted that the petitioner had no intimation about the date being fixed as 09.02.2014 and therefore, the petitioner did not appear on 09.02.2014. The learned counsel for the petitioner had further submitted that the final order passed under Rule 43(b) has mixed up the order passed under Rule 43(a) and 43(b) and the order under Rule 43(b) was passed solely on the ground that the petitioner has been convicted. He submits that in the final order also, no finding has been recorded in connection with the allegation levelled against the petitioner in Prapatra 'Ka'. The learned counsel has submitted that merely because a person has been convicted, the same by itself does not translate into stoppage of full pension and the authority has to apply mind with regard to the extent of withdrawal or denial of pension to the concerned incumbent. The learned counsel submits that both the proceedings under Rules 43(a) and 43(b) suffer from gross procedural irregularity causing great prejudice to the petitioner and call for interference.
The learned counsel for the petitioner had also submitted that the petitioner was convicted only on 29.11.2010 and any withholding or denial of pension prior to that date is ex-facie illegal. He had submitted that the petitioner was denied pension during the period from March, 2009 to November 2010. The petitioner had retired as back as on 31.01.2001. The petitioner is claiming pension for 21 months for the period from March 2009 to November, 2010 which is without prejudice to the challenge to the proceedings under Rule 43(a) as well as 43(b) of Pension Rules. The learned counsel for the petitioner has relied upon the judgement passed by this Court in W.P.(S) No. 7829 of 2012 disposed of on 25.11.2013 (paragraph 10) and also judgement reported in (2013) 2 JBCJ 59 (HC) (Bachoo Singh Vs. State of Jharkhand and Others) (paragraphs 5 and 13). He had also submitted that the petitioner has also raised specific plea that other convicted persons are getting full pension and no adverse order has been passed against them.
7. On 17.10.2022, learned counsel for the petitioner pointed out that the impugned order contained in Annexure-14 is not an order under Rule 43(b) of Jharkhand Pension Rules, but an order under Rule 139 of Jharkhand Pension Rules withholding the pension of the petitioner. He 5 submits that the necessary procedure under Rule 139 has not been followed.
8. Learned counsel for the petitioner has referred to his submissions at paragraph 27(G) at page 37 of the writ petition, which is quoted as under: -
"That Rule 139 of Jharkhand Pension Rules could not be invoked because if sanctioning pension means provisional pension also then Rule 139(b) of the pension rules will not apply as no reduction order was passed by the authority sanctioning pension. It transpires that this power can be exercised at the time of sanctioning itself. Rule 139(c) will not apply because 3 years had already lapsed after sanction of pension (provisional)."
9. The learned counsel had also referred to the judgment passed by the Hon'ble Supreme Court in the case reported in 1995 (suppl.) 3 SCC 56 [State of Bihar & Ors. vs. Idris Ansari] to submit that the proceeding under Rule 43(b) could not lead to passing of an order under Rule 139. Arguments of the Respondents.
10. Learned counsel appearing on behalf of the respondents, while referring to the order under Rule 43(a) as contained in Annexure-7 to the writ petition, has submitted that the same has been passed pursuant to the order passed by this Court. The learned counsel has relied upon a judgment passed by the Hon'ble Supreme Court in the case reported in (2015) 8 SCC 519 para 39 to submit that no useful purpose will be served by issuing notice to the petitioner and granting an opportunity of hearing in view of the fact that no prejudice has been caused to the petitioner as the petitioner was admittedly convicted and the order passed under Rule 43(a) as contained in Annexure-7 does not call for any interference.
11. So far as the order under Rule 43(b) is concerned, it was submitted that it was not in dispute from the side of the respondents that the allegations levelled in Prapatra "Ka" which was relating to departmental proceeding against the petitioner and was initiated prior to conviction of the petitioner, was not taken to a logical end by leading evidence, rather the final order passed under Rule 43(b) is based solely on the conviction of the petitioner.
12. Learned counsel for the respondents has also relied upon the judgment by this Court passed in L.P.A. No. 583/2018 decided on 18th December, 2019 to submit that if any irregularities are found in the matter of departmental proceedings, then the same is required to be remitted back 6 to the authorities from the stage where the irregularity had occurred and merely because there was irregularity, the same by itself does not give any clean chit to the incumbent. The learned counsel has submitted that the judgment of aforesaid L.P.A. has relied upon the judgment passed by the Hon'ble Supreme Court in the case reported in (2013) 6 SCC 530.
13. The learned counsel has further submitted that in terms of the supplementary counter affidavit filed in the present case, the appropriate authority, who would now look into the proceedings in connection with Rule 43(a)/43(b), is the Finance Secretary, Government of Jharkhand, Ranchi. He has referred to para-8 of the supplementary counter affidavit. He submitted that this is without prejudice to the contention that there is no merit in the present writ petition and the same is fit to be dismissed.
Findings of this Court
14. It is not in dispute that the petitioner superannuated from the post of Assistant Accountant from the office of Doranda Treasury, Ranchi on 31.01.2001.
15. While the petitioner was in service, serious allegations were levelled against the petitioner regarding his involvement in fraudulent withdrawal from Doranda Treasury relating to fodder scam. Consequently, the petitioner was put under suspension on 15.02.1996. The petitioner along with many other government servants and others was made an accused in criminal case which was subsequently numbered as R.C. Case No. 46(A)/96. F.I.R. was registered pursuant to letter no. 155 dated 17.02.1996 issued by the Deputy Commissioner, Ranchi to the officer in charge of Doranda Police Station for alleged offence punishable under Sections 409, 420, 467, 468, 471 (A), 120 B of Indian Penal Code and under Section 13(2) read with Section 13 (1) (c) (d) of Prevention of Corruption Act, 1988. Departmental proceedings were also initiated against the petitioner by issuing a charge-sheet dated 14.05.1997 in Prapatra-Ka which also stated that the FIR was also instituted in connection with the allegations. Thus, arising out of the same cause of action, on the one hand, criminal case was instituted and, on the other hand, departmental proceedings were initiated and the petitioner was also put under suspension.
716. During the pendency of the criminal case and departmental proceedings, the petitioner attained the age of superannuation on 31.01.2001. The petitioner filed a writ petition before this Court being C.W.J.C. No. 2208/2001 seeking a direction upon the respondents to pay retiral dues. The said writ petition was disposed of on 09.07.2001 by recording that the petitioner was sanctioned provisional pension and gratuity only to the extent of 90% and the petitioner was also paid the Group Insurance, G.P.F. and leave encashment and was not entitled to any further relief as the petitioner was already placed under suspension while in service and therefore, he would be deemed to be facing proceedings under Rule 43(b) of Bihar Pension Rules, 1950. It was directed that finalization of pension and gratuity can be determined on completion of the proceedings. Order dated 09.07.2001 disposing C.W.J.C. No. 2208 of 2001 is quoted as under: -
"This application was preferred by petitioner for direction on respondents to pay full pension, gratuity and leave encashment amount. According to petitioner, he was suspended on 15 th February, 1996 and superannuated from service on 31 st January, 2001 while under suspension.
The respondents having not finalized the pension and gratuity and having not paid leave encashment amount in spite of representation, the present writ petition was preferred.
The respondents in their counter affidavit has taken plea that group insurance amount and G.P.F amount have already been paid on 14th February, 2001 and 7th April, 2001 respectively. It appears that the petitioner has already been paid provisional pension since February 2001 and 90% of the gratuity amount and leave encashment have been paid to the petitioner on 28th June 2001.
In the facts and circumstances, no further relief can be granted to the petitioner. The petitioner having placed under suspension it will be deemed that a proceeding under Rule 43 (b) of the Bihar Pension Rule 1950 is pending against the petitioner. The question relating to finalization of pension / gratuity can be determined only on completion of such proceeding under Rule 43 (b).
If any criminal proceeding is pending against the petitioner respondents will finalise the matter after decision as may be taken in the criminal proceeding.
The writ petition stands disposed of."
17. It is important to note that it was clearly directed in the aforesaid order dated 09.07.2001 disposing of C.W.J.C. No. 2208 of 2001 that the 8 question relating to finalization of pension / gratuity can be determined only on completion of proceeding under Rule 43 (b) and the matter was to be finalized after decision as may be taken in the criminal proceeding. Thus, finalization of finalization of pension / gratuity was directed to remain pending till finalization of the proceeding under rule 43(b) of the pension rules and also criminal proceedings.
18. The criminal case as well as the departmental proceedings remained pending and the petitioner filed another writ petition being W.P. (S) No. 4198/2003 seeking payment of full payment and gratuity, which was disposed of on 26.08.2003 observing that in view of pendency of criminal case, no relief could be granted till its finalization. Order dated 26.08.2003 passed in W.P. (S) No. 4198 of 2003 is quoted as under: -
"This application has been preferred by petitioner for direction on Respondents to pay him full pension and death-cum-Retirement Gratuity after deducting 90% of the provisional pension and gratuity as is being paid to him since the date of his superannuation.
From the records it transpires that the petitioner is an accused in the Fodder (A.H.D.) Scam case and a criminal case is pending against him in the court of learned Special Judge, C.B.I., Ranchi. Charge- sheet has already been submitted. In the circumstances as the criminal proceeding will be deemed to be a proceeding continuing under Rule 43 (b) of the Bihar (Now Jharkhand) Pension Rules, 1950, no relief can be granted at this stage. The petitioner may claim for benefit of full pension and gratuity after completion of the criminal case, and if he is acquitted.
This Writ Petition stands disposed of."
19. Against this order, L.P.A. No. 788/2003 was also dismissed on 01.09.2004 by observing that the Petitioner is an accused in Fodder Scam Case and a criminal case is pending against him in the court of Special Judge, C.B.I., Ranchi. Charge - sheet has already been submitted. On these facts, the learned Single Judge held that the petitioner cannot claim full pension and gratuity unless criminal case is finalized. Order passed in L.P.A. No. 788/2003 on 01.09.2004 is quoted as under:-
"Heard the parties.
This appeal is directed against the order dated 26.8.2003 passed in W.P. (S) No. 4198 of 2003, whereby the writ petition filed by the appellant- petitioner for a direction for payment of full pension and gratuity has been dismissed.9
Petitioner is an accused in Fodder Scam Case and a criminal case is pending against him in the court of Special Judge, C.B.I., Ranchi. Charge- sheet has already been submitted. On these facts, the learned Single Judge held that the petitioner cannot claim full pension and gratuity unless criminal case is finalized.
Taking into consideration Rule 131 of the Bihar Pension Rules and the decision of the Supreme Court in a case reported in 1996(1) Unreported Judgment Page 93, we do not find any reason to interfere with the impugned judgment.
This appeal is accordingly dismissed."
20. Thus, the present case is not a case where the pension was finalized and provisional pension was being paid but it is a case where provisional pension was being paid and finalization of pension was pending awaiting the result of departmental proceedings under rule 43(b) and the corresponding criminal case.
21. Later on, a Full Bench judgment was passed by this Court in the case of Dudhnath Pandey vs. State of Bihar & Ors. reported in 2007 (4) JCR 01 that payment of pension and gratuity cannot be withheld on ground of pendency of departmental proceedings or criminal proceedings and a follow-up letter was also issued by the respondents directing compliance of the judgement. However, another letter dated 05.03.2009 was issued directing the pensioners to file affidavit as a condition precedent for continuing the payment of provisional pension undertaking that in the event of conviction, the entire amount received would be recovered.
22. The provisional pension of the petitioner was suddenly stooped sometimes in the month of March 2009 and the petitioner was asked to file an affidavit as a condition precedent for continuing the payment of provisional pension undertaking that in the event of conviction, the entire amount received would be recovered. The petitioner filed another writ petition being W.P. (S) No. 5763/2009 challenging the circular seeking the aforesaid undertaking which was dated 05.03.2009.
23. During the pendency of the said writ petition being W.P. (S) No. 5763/2009, the petitioner was convicted in the criminal case by the trial court in R.C. Case No. 46(A)/96 vide judgement dated 29.11.2010 (Annexure-3) and was sentenced to undergo rigorous imprisonment for 4 years with a fine of Rs. 40,000/- under Section 120-B read with Sections 467, 468, 420 of the Indian Penal code and under Section 13(2) read with section 13(1) (c) (d) of Prevention of Corruption Act, 1988; rigorous 10 imprisonment for a period of 4 years with a fine of Rs. 20,000/- under Section 420 of IPC and rigorous imprisonment for 4 years for offence under Section 13(2) with a fine of Rs. 40,000/-. The total fine was of Rs. One Lakh (Rs. 1,00,000/-) and in default of payment of fine, it was directed that the petitioner shall undergo further simple imprisonment for six months and all the sentenced were directed to run concurrently. The petitioner preferred a criminal appeal being Cr. Appeal (S.J.) No. 1039/2010, which was admitted and the petitioner was enlarged on bail vide order dated 16.12.2010 (Annexure-4).
24. Thereafter, the aforesaid writ petition being W.P. (S) No. 5763/2009 was disposed of on 08.05.2012 (Annexure-5) enabling the petitioner to file a representation before the Secretary, Department of Finance, Government of Jharkhand, Ranchi for redressal of his grievance relating to full pension and gratuity. It was further observed that in case such representation is filed, the same will be considered in accordance with law by passing a speaking and reasoned order within stipulated time- frame. It was made clear that if the petitioner's claim is found genuine and he is entitled to any of the dues legally admissible to the petitioner under the heads of full pension and gratuity, the same should be paid within a period of six months thereafter with statutory interest, if any.
25. Vide impugned order contained in Memo No. 2069 dated 27.09.2012 (Annexure-7), the representation of the petitioner was rejected by observing that in terms of Rule 43(a) the State Government will have the right to withhold pension or any part thereof, if the pensioner is found guilty in a criminal case or has misconducted himself. It was observed that the petitioner has been convicted in the aforesaid criminal case and there has been no stay of order of conviction, the petitioner was not entitled for sanction of the claimed pension and gratuity and consequently, the claim of the petitioner was rejected. It was also held that the judgement passed in the case of Dudhnath Pandey vs. State of Bihar & Ors. reported in 2007 (4) JCR 01 was not applicable as the petitioner was already convicted and it was no longer a case of withholding of full pension during pendency of departmental proceedings or criminal case.
26. The petitioner filed the present case, interalia, challenging the aforesaid order dated 27.09.2012 (Annexure-7) passed by the Finance 11 Secretary and also prayed for a direction to pay full pension and gratuity and interest on the unpaid part of it. During the pendency of the writ petition, the other impugned order dated 24.05.2014 was also passed under Rule 43(b) and 139 of Bihar/Jharkhand Pension Rules. Accordingly, the writ petition was amended challenging the order dated 24.05.2014 and also seeking a direction upon the respondents to pay pensionary benefits for the period of 21 months (March 2009 to 28th of November 2010) prior to conviction in the criminal case.
A. Challenge to order dated 27.09.2012 (Annexure-7)
27. The order is in two parts- firstly, denial of pension by exercising power under rule 43(a) of the pension rules and secondly, denial of arrears of provisional pension by holding that the judgement passed in the case of Dudhnath Pandey vs. State of Bihar & Ors. reported in 2007 (4) JCR 01 does not apply as the petitioner was already convicted.
28. The first point for consideration is whether Rule 43(a) has any application under the facts and circumstances of this case as the impugned order dated 27.09.2012 (Annexure-7) denying full pension to the petitioner has been passed by referring to Rule 43(a) of the pension Rules.
29. This Court finds that while the petitioner was in service, the criminal case as well as the disciplinary proceeding were initiated against the petitioner arising out of the same action. As the cause of action for the criminal case / departmental proceedings related to the acts and omissions by the petitioner while in service, therefore Rule 43(a) of Jharkhand/Bihar Pension Rules has no applicability which relates to future good conduct of a pensioner. Such view has been taken in the judgment passed by the Hon'ble Patna High Court in the case of Nityanand Kumar Singh vs. State of Bihar reported in 2016 (2) PLJR 315 (Pat.), wherein it has been clearly held that Rule 43(a) of Bihar Pension Rules is not related to conduct of an employee during service or service rendered on re-employment. It has been held that the opening sentence of Rule 43(a) provides that future good conduct will be implied condition of every grant of pension which would mean that a pensioner who has been granted pension is expected to maintain a good conduct in future and in case a pensioner is convicted of serious crime or held guilty of grave misconduct, the Government has the power granted by Rule 43(a) to withhold or withdraw the pension or any 12 part of it and its decision has been made final and conclusive. It has been held that from comparison of Rule 43(a) with Rule 43(b), the former relates to future good conduct of a pensioner and the same may be invoked if he is convicted of serious crime or is held guilty of grave misconduct. The serious crime or grave misconduct under this provision, i.e., Rule 43(a) is not related to his conduct during service and so-called service rendered on re-employment. It has been held that Rule 43(a) comes into play after retirement and applies till pensioner breathes his last and there can be no question of time limitation for exercise of such power because this Rule is not at all connected with any departmental proceeding. It has also been held that Rule 43(a) nowhere refers to any departmental proceeding instituted earlier or to be instituted later.
30. The aforesaid view in the judgment passed by Hon'ble Patna High Court has been agreed upon and followed by this Court in L.P.A. No. 281/2018 (Sharat Chandra Singh versus State of Jharkhand and others). The extract of the paragraph relevant for the purposes of present case of the aforesaid judgment passed by this court in L.P.A. No. 281/2018 is quoted as under: -
" It would be apparent from the perusal of the aforesaid judgment that the Division Bench of Patna High Court has held that Rule 43(a) has nothing to do with the past service or any misconduct of the pensioner during the course of his service, rather it is with respect to future conduct of the concerned employee and admittedly, though the petitioner has been held to be guilty after his retirement in a case which was instituted during the period of his service but the same was with respect to his conduct during the said period.
Thus, we are also in respectful agreement with the decision of the Division Bench of the Patna High Court on the issue in Nityanand Kumar Singh (Supra) and thus, we hold that the Pension, Gratuity or other retiral benefits could not have been withheld by the State authorities and that too without assigning any reason, under Rule 43(a)."
31. In view of the aforesaid judicial pronouncements i.e., Nityanand Kumar Singh (Supra) followed by judgement passed in by this court in L.P.A. No. 281/2018 (supra), this Court is of the considered view that Rule 43(a) of Bihar/Jharkhand Pension Rule is not applicable to the facts and circumstances of this case as the entire allegations and proceedings against the petitioner are for the acts and omissions while the petitioner was in service and both, departmental and criminal proceedings, were initiated while the petitioner was in service and departmental proceedings 13 were continued under rule 43(b) of the pension rules. Accordingly, the impugned order dated 27.09.2012 (Annexure-7) to the extent it exercises power under Rule 43(a) of Bihar/Jharkhand Pension Rule to deny pension to the petitioner is not sustainable in the eyes of law which is accordingly set-aside.
32. So far as the second point if the impugned order as contained in annexure-7 regarding denial of arrears of provisional pension for the period prior to the date of conviction of the petitioner by holding that the judgement passed in the case of Dudhnath Pandey vs. State of Bihar & Ors. reported in 2007 (4) JCR 01 does not apply as the petitioner was already convicted, is concerned, such claim of arrear of pension/ differential pension has been rejected in later part of this judgement and it has also been held that the judgement passed in the case of Dudhnath Pandey vs. State of Bihar & Ors. reported in 2007 (4) JCR 01 does not apply to the facts and circumstances of this case.
33. The issue no (i) and (ii) posed by the petitioner as quoted in para 3 above is accordingly answered in favour of the petitioner by holding that rule 43(a) has no applicability to the facts and circumstances of this case.
34. However, whether the petitioner would be entitled for any pension/arrears of pension till the date of his conviction, as claimed by the petitioner, would depend upon the legality and validity of the other impugned order dated 24.05.2014 (Annexure-14), wherein the petitioner has been denied pension under Rule 43(b) of Jharkhand Pension Rules and in terms of Rule 139 of Jharkhand Pension Rules on account of the fact that the petitioner has been convicted in the criminal case. While dealing with the legality and validity of the other impugned order as contained in annexure 14 in the later part of the judgment, this Court has held that the judgement passed in the case of Dudhnath Pandey (supra) does not help the petitioner in any manner to claim arrear of pension till the date of conviction as the order refusing to deny pension has been passed also in terms of rule 139 (a) and (b) of the pension rules the grant of provisional pension referrable to rule 204 (a) has been taken to a logical end by 14 ultimately refusing to grant pension to the petitioner having been convicted in the criminal case.
(B). Challenge to order dated 24.05.2014 (Annexure-14) passed under Rule 43(b) and 139 of Bihar/Jharkhand Pension Rules
35. Further case of the petitioner is that when the present writ petition was filed challenging the order dated 27.09.2012 (Annexure-7), the Government started taking steps in the departmental proceedings which had virtually become stale, in as much as, the last step in the departmental proceeding was taken vide letter dated 10.10.2009 appointing a presenting officer and thereafter the next letter was issued only on 27.12.2012. It has further been submitted that in the said proceeding, the enquiry report was purportedly submitted on 11.02.2014 (Annexure-12) stating that the petitioner failed to produce a copy of the judgment of the criminal case and C.B.I. (Central Bureau of Investigation) was asked to produce it and on 23.09.2013, C.B.I. had submitted that charge-sheet was filed and the case was pending before the court, although the petitioner was convicted in the year 2010 itself. It is the case of the petitioner that the enquiry report was never served upon the petitioner and the petitioner has obtained the same only through Right to Information. Ultimately, an order under Rule 43 (b) and Rule 139 of the Pension Rules has been passed and the pension of the petitioner has been permanently stopped and the petitioner has been made entitled for only subsistence allowance for the period of suspension. The impugned order dated 24.05.2014 (Annexure-14) has been passed by the Deputy Commissioner, Ranchi. The challenge to impugned order dated 24.05.2014 (Annexure-14) are dealt point wise as follows: -
(i) Stale proceedings.
36. It is submitted that the departmental proceedings had virtually become stale, in as much as, the last step in the departmental proceeding was taken vide letter dated 10.10.2009 appointing a presenting officer and thereafter the next letter was issued only on 27.12.2012. It is the case of the petitioner that the departmental proceeding was initiated by issuance of charge-sheet as back as in the year 1997, but nothing happened and vide order dated 10.10.2009, a new conducting officer was appointed. Even, 15 thereafter, nothing happened and on 03.12.2012, the Government appointed conducting officer in the stale departmental proceeding.
37. This Court finds that the point of departmental proceedings being stale is devoid of any merits. This is in view of the facts that in the earlier round of litigation for pensionary benefits in C.W.J.C. No.2208 of 2001 disposed of on 09.07.2001, it was clearly held that the petitioner having been placed under suspension, it will be deemed that a proceeding under Rule 43 (b) of Bihar Pension Rules, 1950 was pending against the petitioner. It was also directed that if any criminal proceeding was pending against the petitioner the respondents will finalize the matter after decision as may be taken in the criminal proceedings. The records of the case reveals that the departmental proceedings remained pending and ultimately the petitioner was convicted in the criminal case on 29.11.2010. Thereafter conducting officer was appointed in the departmental proceedings in the month of December 2012. The records of the case reveal that specific order dated 02.07.2003 was also issued by the Government to continue the pending departmental proceeding against the petitioner under Rule 43 (b) of Bihar Pension Rules and the suspension was revoked.
38. Considering the fact that the petitioner was convicted in the corresponding criminal case only in the year 2010, the respondents have not committed any error in not proceeding in the departmental proceedings during the pendency of the criminal case and thus it cannot be said that the departmental proceedings had become stale while notices were issued in the year 2012. Thus, the arguments of the petitioner that the departmental proceeding was a stale proceeding, is rejected.
(ii) Procedural irregularity regarding participation of the petitioner in departmental proceedings and passing of impugned order under rule 43(b) of Bihar/ Jharkhand Pension Rules.
39. It has been submitted that the impugned proceedings and orders have shown the petitioner as a defaulter in participating and attending to the proceedings although the petitioner had attended the proceedings on 16 each and every date till 19.11.2013 except on 07.01.2013 as the petitioner was belatedly served with the notice fixing the date 07.01.2013.
40. It is further case of the petitioner as per the synopsis filed by the learned counsel for the petitioner during the course of hearing that on 19.11.2013, it was falsely recorded that the petitioner was asked to produce a copy of the court's order and he demanded three months' time and in fact, on that date, the petitioner was only told that the matter was being posted for final order. It has been further alleged by the petitioner that the enquiry report wrongly recorded that the petitioner was asked by notices to furnish criminal court's order. It has also been submitted that the order dated 19.11.2013 is also false about fixing the date as 09.02.2014. It is the case of the petitioner that no such date was fixed and the order dated 09.02.2014 has been later fabricated to show that both sides were absent and the matter was being posted for final judgment.
41. This court finds that the respondents have brought on record some of the attendance which was placed by the petitioner in the departmental proceedings which includes attendance dated 15.03.2013. 07.06.2013, 11.06.2013, 18.10.2013 and 19.11.2013. The attendance dated 18.10.2013 reveals that the petitioner had submitted that he did not have a copy of the judgment passed by the court and similar statement has been made by the petitioner in attendance dated 19.11.2013. Thus, the aforesaid two attendances filed by the petitioner clearly show that the petitioner has been expressing his inability to produce the judgement passed in the criminal case by stating that he did not have a copy of the judgement. It is very surprising that the petitioner had expressed his inability to produce a copy of the judgement passed in the criminal case although he was convicted as back as on 29.11.2010 and was also released on bail by the appellate court vide order dated 16.12.2010 in Cr. Appeal (S.J.) No. 1039/2010 (Annexure-4).The aforesaid attendance clearly reveal that opportunities were given to the petitioner to produce a copy of the judgment passed in the criminal case, but the petitioner did not choose to produce the same and stated in his attendance dated 18.10.2013 as well as on 19.11.2013 that he did not have a copy of the judgment.
1742. The records further reveal that a letter dated 26.10.2013 was also issued by the conducting officer to the Assistant Public Prosecutor of fodder scam to provide a copy of the court's order. The records of the case also reveal that a letter dated 23.10.2013 was issued by the C.B.I. to the Deputy Commissioner showing that the petitioner was charge-sheeted and his case was under trial, although, admittedly the petitioner was convicted by the trial court as back as on 29.11.2010.
43. Thus, neither the petitioner produced the copy of the judgement passed in the criminal case nor the same was placed by the department before the enquiry officer. Ultimately the enquiry report was submitted on 11.02.2014. In the enquiry report, neither any finding was given with regard to the charges in Prapatra "Ka" nor the enquiry report recorded that the petitioner has been convicted in the criminal case rather as per the enquiry report, the criminal case was still pending. However, the impugned order dated 24.05.2014 (Annexure-14) was passed by the disciplinary authority on the basis of the admitted fact that the petitioner was convicted in the criminal case and denied pension to the petitioner. The disciplinary authority, which passing the impugned order as contained in Annexure-14 has recorded that the petitioner having been convicted by criminal court has been found to have acted in a manner unbecoming of a government servant and his action has been in violation of Rule 3 of Bihar Government Servant's Conduct Rules, 1976. The impugned order as contained in Annexure-14 is a composite order under rule 43(b) and rule 139 of the pension rules.
44. It has been held by the Hon'ble Supreme Court in the case of State of Bihar versus Md. Idris Ansari (supra) at para 7 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.
1845. In view of the fact that the petitioner was subjected to disciplinary proceedings as well as criminal prosecution for the same cause of action and the petitioner has been convicted in the criminal case on the touch stone of proving the case by the prosecution beyond all reasonable doubts, this Court is of the considered view that the impugned order denying pension to the petitioner under Rule 43(b) solely on account of conviction is the criminal case does not suffer from any illegality calling for any interference in the impugned order under Article 226 of the Constitution of India. Power under rule 43 (b) can be exercised solely on account of conviction in the criminal case particularly when the conviction is for offence punishable under IPC and punishable under Prevention of Corruption Act, 1988.
46. Although the learned counsel for the petitioner has alleged violation of the principles of natural justice in the departmental proceedings primarily at the stage of no information regarding fixing the last date of hearing before the enquiry officer and also regarding non furnishing of the enquiry report but has not been able to satisfy this court of having suffered any prejudice on account of such alleged violation of the principles of natural justice when the impugned order is not based on any findings of the enquiry officer but is solely based on the conviction of the petitioner in the corresponding criminal case. The learned counsel for the petitioner has not been able to demonstrate before this court, rather no arguments have been advanced, as to how the petitioner can escape the consequences of his conviction in the criminal case under the facts and circumstances of this case. It is important to note that the petitioner has been convicted not only under the various sections of Indian Penal Code but also under the provisions of Prevention of Corruption Act, 1988 for acts and omissions while discharging official duty while in service.
47. It has also been submitted that no notice of any proposed action of withholding or withdrawing pension or recovery of loss from paid pension under Rule 43(b) was given. The present case is not a case of recovery of any loss. It is a case of denial of pension on account of conviction in criminal case. It would be useful to refer to one judgment passed by the Hon'ble Patna High Court reported in (2013) 1 PLJR 439 (Smt. 19 Chintamani Sinha Vs. State of Bihar), where the main question to be considered was as to - whether after conviction in criminal case, it was incumbent upon the authorities to issue any show cause notice and hear the accused employee before passing the order under Rule 43 (b) of Bihar Pension Rules.
The said question has been answered in para 15 of the said judgment, which is quoted as under: -
"15. The main question to be considered is as to whether after such conviction it is incumbent upon the authorities to issue any show cause notice and hear the convicted ex - employee before passing an order under Rule 43 (b) of the Bihar Pension Rules. From a perusal of the provisions of Rule 43 (b) it does not appear that any such procedure is required to be followed; the said Rule only insists upon a proper opportunity to an employee in a full-fledged departmental proceeding before arriving at a finding of misconduct upon which the order of withholding of pension may be made. With respect to judicial proceedings no such procedure is required as the very functioning of a criminal court is such that the maximum opportunity of hearing is beyond reasonable doubt. Once the finding is recorded either in departmental or judicial proceedings there is no further requirement in the said Rule of giving a further opportunity to the concerned employee as to the quantum of pension to be withheld, whether in whole or in part. The same is not required even when a punishment is imposed while he is still in service after the 42nd amendment of the Constitution in proceedings is required so far as the quantum of punishment is concerned or even with respect to passing an order of withholding the whole or a part of the pension, this Court fails to understand as to how after conviction by a court of law such an opportunity would be required."
48. This Court is in complete agreement with the aforesaid view expressed by Hon'ble Patna High Court reported in (2013) 1 PLJR 439 (supra). Consequently, this Court is also of the considered view that when the order passed under rule 43(b) of the pension rules is solely based on conviction of the petitioner in the criminal case, there is no requirement of any further opportunity of hearing particularly when the conviction is an admitted fact as in the present case.
49. Since the issue posed by the petitioner vide issue no (i) and (ii) as quoted in para 3 above has been decided in favour of the petitioner by holding that rule 43 (a) has no applicability in the facts and circumstances of this case, there was no legal impediment in passing impugned order under rule 43(b) of the pension rules. The issue posed by the petitioner as issue no. (iv) quoted in para 3 above is accordingly answered.
2050. As a cumulative effect of the aforesaid findings, this Court does not find any illegality in the impugned order dated 24.05.2014 (Annexure-14) so far as it relates to order under Rule 43(b) of Bihar/ Jharkhand Pension Rules. The issue posed by the petitioner as issue no (v) quoted in para 3 above is accordingly answered against the petitioner.
(iii) Illegality in passing of the impugned order dated 24.05.2014 (Annexure-14) to the extent it relates to order under Rule 139 of Bihar/ Jharkhand Pension Rules.
51. By the impugned order dated 24.05.2014, final order was passed by the Deputy Commissioner permanently stopping the pension of the petitioner by referring to Rule 139 and closing the departmental proceedings. It has been submitted by the learned counsel for the petitioner that the impugned order is not an order under Rule 43(b), rather it is an order under Rule 139 only and the reference to Rule 43(b) has been made only to the effect that the continuance of proceeding after retirement was under the said provision.
52. Learned counsel for the petitioner has specifically referred to his submissions at paragraph 27(G) at page 37 of the writ petition, that Rule 139 of Jharkhand Pension Rules could not be invoked because if sanctioning pension means provisional pension also then Rule 139(b) of the Pension Rules will not apply as no reduction order was passed by the authority sanctioning pension. It transpires that this power can be exercised at the time of sanctioning itself. Rule 139(c) will not apply because 3 years had already lapsed after sanction of pension (provisional). It has also been submitted that no notice of any proposed action of reducing pension under Rule 139(b) or revising pension order under Rule 139(c) was given.
53. The following discussions would reveal that the aforesaid submissions are devoid of any merits. The present case is not a case of revision or reduction of pension but the case is of finalization of pension resulting in denial of pension after due exercise of power by the 21 sanctioning authority in terms of rule 139. The provisional pension is released in terms of rule 204(a) of the pension rules based on provisional consent of the sanctioning authority subject to final approval of the services of the petitioner in terms of Rule 139 (a) of the Pension Rules. Unless the consent of the sanctioning authority is finalized which is subject to approval of service of the pensioner in terms of rule 139(a) and
(b) , there is no question of revision of pension by the Government in terms of rule 139(c) of the Pension Rules calling for any application of limitation of three years or any hearing in terms of rule 139(c). Moreover, in the present case, power under Rule 139 has not been exercised by the Government but by the sanctioning authority (deputy commissioner) in terms of rule 139 (a) and (b) which amounts to non-approval of the services of the petitioner and consequent final decision to deny of pension. Moreover, the impugned order has to be seen in terms of the earlier two orders passed in the writ petitions filed by the petitioner whereby it was clearly held that the question relating to finalization of pension / gratuity can be determined only on completion of such proceeding under Rule 43
(b)and if any criminal proceeding is pending against the petitioner respondents will finalize the matter after decision as may be taken in the criminal proceeding.
54. Rule 139 of Bihar/Jharkhand Pension Rules reads as follows: -
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, or any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed.22
55. The said rule was subject matter of interpretation in the judgment passed by the Hon'ble Supreme Court in the case of Md. Irdis Ansari (supra) and in para 9 of the judgment it has been held 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 circumstances 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 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. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture:
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 concerned officer 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 has also been held in para 10 of the judgment that if the employee was found guilty of misconduct he can be properly proceeded against under Rule 139(a) and (b) by the sanctioning authority.
56. This Court finds that as per Rule 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. In terms of Rule 139(b) the sanctioning authority has been empowered to make such reduction in pension as it thinks proper if the service has not been thoroughly satisfactory. This Court finds that power under Rule 139 (a) and Rule 139 (b) is to be exercised by the sanctioning authority. This Court is also of the view that 23 approval of service is not a mere formality and the sanction of pension is governed by rules.
57. This Court finds that Chapter-X of Jharkhand Pension Rules deals with application for and grant of pensions. The rules under Chapter X provides that a formal application for pension in Form-4 is required to be submitted. Rule 200 under section III of chapter X deals with sanction of pension. Rule 200 under section III of chapter X is quoted as under: -
"200. (1) On receipt of the pension papers passed on to him under the provisions of rule 195 or 199, the Accountant-General shall apply the requisite checks. If in cases in which the authority competent to sanction the pension has recorded its provisional recommendation under clause (c) of rule 195 or 199, the Accountant-General finds that the claim is in order, he shall prepare the payment order forthwith but not issue it more than a fortnight in advance of the date on which the Government servant is due to retire, intimating the fact of issue to that Authority. In other cases he shall certify as to the correctness of the calculations of service and pension and return the pension papers to the authority competent to sanction the pension with a report on the claim for pension and the rules applicable to the case. He shall retain the last pay certificate (see rules 195 and 199) unless the pension is to be paid in another circle of audit in which case he shall forward the certificate to the Accountant- General of that circle alongwith a copy of the order sanctioning the pension.
Note. - If the pension papers are plainly incorrect, or incomplete, the Accountant-General shall return them promptly for correction or explanation.
In the column in the second page of Pension Form 4 reserved for the remarks of the Accountant-General or on his certificate and report on the third page of that form, he shall note briefly his reasons for disallowing any service claimed, and his explanation of any apparent discrepancies, etc. (2) In his report of the amount of pension admissible the Accountant-
General shall always call special attention to rules 139 and 202 (1)."
58. This Court finds that the sanction of pension and the admissible pension is circumscribed by Rule 139 and 202(1) of the Pension rules. Rule 139 deals with approval of service of the pensioner and Rule 202(1) deals with any calculation or other error resulting in excess payment of pension.
59. Section IV of Chapter X of the pension rules deals with anticipatory pension. Rule 204 (a) under Section IV of Chapter X is quoted as under: -
"204. (a) When a Government servant whose pension is payable in India is likely to retire before his pension can be finally assessed and settled in accordance with the provisions of the preceding section of this Chapter, the Accountant-General shall sanction the disbursement of pension to which after the most careful summary investigation that he can make without delay, he believes the Government servant to be entitled, provided that such 24 disbursement shall be made only after the declaration specified below has been signed by the retiring Government servant: -
"Whereas the _ _ _ _ (here state the designation of the Government servant sanctioning the advance) has consented provisionally, to advance to me the sum of Rs. _ _ _ _ a month, in anticipation of the completion of the enquiries necessary to enable the Government to fix the amount of my pension. I hereby acknowledge that, in accepting this advance, I fully understand that my pension is subject to revision on the completion of the necessary formal enquiries, and I promise to base no objection to such revision on the ground that the provisional pension now to be paid to me exceeds the pension to which I may be eventually found entitled. I further promise to repay any amount advanced to me in excess of the pension to which I may be eventually found entitled."
60. As per pension Form-4, a specific declaration under Rule 204(a) is taken for release of provisional pension which clearly reflects that provisional pension is sanctioned by way of advance in anticipation of completion of enquiries necessary for the government to fix the amount of pension. The prescribed declaration for release of provisional pension reflects that the sanctioning authority consents for release of the provisional pension only provisionally which is just by way of advance and thus provisional pension is released pending approval of services of the pensioner by the sanctioning authority in terms of Rule 139 (a) and (b). Once the pension is sanctioned by the sanctioning authority it is subject to revision by the Government in terms of Rule 139(c) but such revision by Government under Rule 139(c) can be done only after giving an opportunity of hearing to the pensioner and within 3 years from the date of sanctioning of pension for the first time. This Court also finds that no time limit has been prescribed for exercise of power under Rule 139(a) or 139 (b) which deals with drawing of conclusion by the sanctioning authority regarding through satisfactory service of the pensioner. This Court also finds that Rule 139(a ) or 139 (b) does not contemplate any opportunity of hearing to the pensioner but exercise of revisional power by the Government revising pension sanctioned by the sanctioning authority under rule 139(c) mandates opportunity of hearing before revising the pension on account of proof of grave misconduct. The present case is not a case of revision of pension but it is a case where provisional pension has been released pending finalization of pension.
61. This Court finds that admittedly only provisional pension and gratuity were released to the petitioner by the sanctioning authority which 25 is apparently referrable to payment of provisional pension under Rule 204(a) of the Pension Rules based on provisional consent of the sanctioning authority in anticipation of the completion of the enquiries necessary to enable the Government to fix the amount of pension subject to final approval of the services of the petitioner in terms of Rule 139 (a) of the Pension Rules.
62. This Court is of the considered view that by the impugned order dated 24.05.2014 (Annexure-14), the sanctioning authority has exercised the power under Rule 139 and has taken the provisional pension and gratuity being paid to the petitioner to a logical end and refused to extend pensionary benefits to the petitioner. Such exercise of power is in consonance with the power vested under Rule 139 (a) and 139 (b) of the Pension Rules duly exercised by the sanctioning authority. Such exercise of power was not by the Government under rule 139 (c) of the pension rules as the same has been exercised by the sanctioning authority and not by the Government in revisional power and accordingly question of any limitation or opportunity of hearing in terms of rule 139 (c) does not arise. Moreover, there can be no doubt that if the petitioner would have been convicted under the provisions of IPC and Prevention of Corruption Act while in service, the petitioner would have been dismissed from service.
63. As a cumulative effect of the aforesaid findings this Court does not find any illegality or irregularity in the impugned order dated 24.05.2014 (Annexure-14) to the extent it relates to order under Rule 139 of Bihar/ Jharkhand Pension Rules.
( C) Claim of arrears of pension/differential pension even till the date of his conviction
64. This Court is of the considered view that the judgement passed in the case of Dudhnath Pandey (supra) does not help the petitioner in any manner whatsoever in view of the aforesaid finding that release of provisional pension was referrable to Rule 204(a) of the Pension Rules based on provisional consent of the sanctioning authority in terms of the Rule 204(a) subject to final approval of the services of the petitioner in terms of Rule 139 (a) of the Pension Rules. This Court is of the considered 26 view that once the petitioner has been convicted, it is no longer a case of withholding of pension or gratuity on account of pendency of criminal case or pendency of departmental proceedings. Further the payment of provisional pension has also to be seen in the light of two earlier orders passed against the petitioner in C.W.J.C. No. 2208 of 2001 decided on 09.07.2001 and in W.P. (S) No. 4198 of 2003 against which L.P.A. No. 788 of 2003 vide judgement dated 01.09.2004 was also dismissed. In the said two orders it was clearly observed that finalization of pension was to await and was dependent upon out-come of criminal case. Thus, the denial of full pension prior to conviction was in terms of the earlier orders passed by this court in the case of the petitioner and such action by the respondents cannot be said to be arbitrary under the facts and circumstances of this case.
This court is of the considered view that payment of full pension or part pension during pendency of departmental proceedings or criminal proceedings is subject to final approval of the services of the petitioner in terms of Rule 139 (a) of the Pension Rules and pension and so long as final approval of pension is pending , the payment of any amount of pension , part or full, will continue to remain provisional in terms of rule 204(a) of the pension rules.
65. In the case of the petitioner being C.W.J.C. No. 2208 of 2001 decided on 09.07.2001, it was recorded that the petitioner was being paid the provisional pension and gratuity and it was held that question regarding finalization of pension and gratuity could be determined only on completion of proceeding under Rule 43(b) of the Pension Rules and the matter was to be finalized after decision in the criminal case if any such criminal proceeding was pending. In the second writ petition filed by the petitioner being WPS No. 4198 of 2003, it was held that the petitioner could not claim full pension and gratuity unless the criminal case was finalized and this view was upheld by this Court while dismissing the appeal being L.P.A. No. 788 of 2003 vide judgement dated 01.09.2004. Thus, by aforesaid two orders passed by this Court, the petitioner was specifically denied full pension and gratuity till finalization of the criminal case and the petitioner continued to get provisional pension and gratuity 27 and the same was also stopped from 3/2009 as the petitioner refused to give an undertaking that he would refund the pension amount if convicted in the criminal case .
66. In view of the aforesaid findings, particularly the fact that the petitioner has been denied pension under Rule 139 of the Pension Rules and the grant of provisional pension referable to Rule 204 of the Pension Rules having merged with the final order under Rule 139 denying pension on account of conviction in the criminal case, the petitioner is not entitled to any arrears of pension/differential pension even till the date of his conviction. The petitioner will not be entitled for any differential pension for the past period as the pension sanctioning authority has also exercised power under rule 139 (a) and (b) to deny pension to the petitioner on account of the conviction of the petitioner for offences under the Indian Penal Code as well as under Prevention of Corruption Act, 1988 and the provisional pension referrable to rule 204 based on provisional consent of the sanctioning authority to advance money, has been taken to a logical end in terms of order passed under rule 139 of the pension rules.
The issue posed by the petitioner as issue no (iii) quoted in para 3 above is accordingly answered against the petitioner.
(D) -point of discrimination
67. So far as the point of discrimination as raised by the petitioner stating that all others are being paid full pension and gratuity is concerned, this Court finds that the allegation regarding pick and choose method has been responded in para 9 and 10 of the supplementary counter affidavit dated 26.10.2021 which are quoted as under: -
"9. That further the of the Petitioner on the point of adopting pick and choose method is concerned, it is most humbly and respectfully stated and submitted that the same is denied by the answering respondents in view of the fact the answering department had issued letter no. 740 dated 05.03.2009 to all the Treasury officers/Assistant Treasury Officers and letter no. 741 dated 05.03.2009 to the Department Secretaries of Personnel, Administrative Reforms and Rajbhasha, Commercial Taxation and Animal Husbandry and Fisheries with a direction that undertaking be taken from persons accused under Fodder Scam working in their treasuries/department that no final order has been passed in their cases by the learned trial court and in the event of conviction, any payment made to them shall be liable to be recovered.
10. That it is humbly submitted that in course of examination it was found that among the officers/employees mentioned in the list provided in writ petition, 28 Mrs. Vibha Kumari was an officer of Jharkhand Administrative Service and Mr. B. Kujur was of Jharkhand Finance Service. Parent Department of the convicted officers were requested for conducting disciplinary proceeding vide letter no. 3885 dated 26.12.2008 and letter no. 1418 dated 17.05.2008 respectively. Another employee namely Mr. Dinanath Sahay whose pension dues was allowed as an outcome of judgment passed in W.P. (S) No. 5924/2007, as his conviction was not proved till the judgment date. However, in terms of averments of the writ petition, the answering respondent vide its letter no. 1314 dated 31.03.2017 has called for report regarding status of the payments being made to the persons concerned which as per the records is still awaited. However, upon receipt of such report, on being found any flaw to that effect, appropriate action shall be taken against the persons concerned."
68. In view of the averments of the counter affidavit as quoted above, this Court is not inclined to grant any relief to the petitioner on the point of alleged discrimination as the respondents have already taken steps for taking uniform action against all the convicted persons in the fodder scam case. Further, a letter no. 740 dated 05.03.2009 has been circulated with a direction that undertaking be taken from persons accused under Fodder Scam that in the event of conviction, any payment made to them shall be liable to be recovered. The petitioner was also asked to give such an undertaking but the petitioner refused to give such undertaking and challenged the same in the high court but the same was not quashed by this court and the writ petition was disposed of with a direction upon the respondents to dispose of the representation of the petitioner with a direction to consider his claim. The representation was disposed of vide impugned order as contained in annexure -7 by which on one hand the claim of arrears of pension was rejected and on the other hand the pension itself was denied by referring to rule 43(a) of the Bihar/Jharkhand pension rules. Admittedly the petitioner never gave any undertaking in terms of aforesaid letter no. 740 dated 05.03.2009. It appears that the respondents have taken steps to ensure parity amongst all the convicted persons and it is expected that the action as proposed by the respondents in the supplementary counter affidavit will be taken to its logical end in accordance with law. This Court is not pronouncing upon the rights and liabilities of any other person except the petitioner. Having passed a detailed judgement with regards to the petitioner, this Court is of the considered view that the petitioner is not entitled for any direction for payment as prayed for. The issue posed by the petitioner as issue no (vi) quoted in para 3 above is accordingly answered against the petitioner.
2969. This Court is of the considered view that having passed a detailed judgement with regards to the claim of the petitioner and also with regards impugned actions/ orders passed in the case of the petitioner, this court is not inclined to grant any relief as prayed for by the writ petitioner except to the extent that the provision of rule 43(a) has no applicability to the facts and circumstances of this case and consequently the impugned order as contained in Annexure -7 has been set-aside so far as it relates to exercise of power under rule 43(a) of the rules.
However, in spite of such findings, the petitioner is not entitled for any consequential relief for the reason that the subsequent impugned order as contained in annexure- 14 passed under Rule 43(b) and Rule 139 denying pension to the petitioner on account of his conviction in the criminal case, has been upheld.
This court has also held that the petitioner will not be entitled for any differential pension for the past period as the pension sanctioning authority has also exercised power under rule 139 (a) and (b) to deny pension to the petitioner on account of the conviction of the petitioner for offences under the Indian Penal Code as well as under Prevention of Corruption Act, 1988 and the provisional pension referrable to rule 204 based on provisional consent of the sanctioning authority to advance money in anticipation of the completion of the enquiries necessary to enable the Government to fix the amount of my pension has been taken to a logical end in terms of order passed under rule 139 of the pension rules by finally denying pension on account of conviction in the criminal case.
70. This writ petition is accordingly disposed of in the aforesaid terms.
71. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Mukul