Jharkhand High Court
Rameshwar Prasad Choudhary vs State Of Jharkhand & Ors. on 22 March, 2013
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1.
W. P. (S) No. 7195 of 2006
[In the matter of an application under Article 226 of the Constitution of India]
Rameshwar Prasad Choudhary ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Director, Animal Husbandry Department, Ranchi
3. The Regional Director, Animal Husbandry Department, Dumka
4. The Accountant General, Ranchi
... ... Respondents
For the Petitioner : M/s. Rajendra Krishna,
Jay Shanker Tiwari, Advocates
For the Respondents : J.C. to G.A.
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: The petitioner, who was working as Head Clerk in the Animal
Husbandry Department, Dumka, was put under suspension by order dated 14.02.1996. The petitioner was implicated in several cases relating to Fodder Scam. The petitioner moved Patna High Court in C.W.J.C. No. 10644 of 1998 and by order dated 30.08.1999, the order of suspension of the petitioner was quashed. The petitioner superannuated from service w.e.f. 31.08.2004 and his provisional pension was fixed by letter dated 05.09.2005. However, as the retiral benefits of the petitioner was not paid to him, the petitioner made representation to the authorities and finally moved this Court by filing the present writ petition, seeking direction upon the respondents for release of full pension, full 2. gratuity, unutilized leave, etc. and for grant of benefits under A.C.P.
2. A counteraffidavit has been filed on behalf of Respondent No.2, in which, it has been pointed out that in view of the grant of sanction for prosecution of the petitioner in Fodder Scam cases, it was ordered that the petitioner would remain under suspension. The petitioner was made accused in atleast three cases in Fodder Scam and he was granted pardon by the Court and permitted to be made a prosecution witness. A copy of order dated 31.12.2006 has been brought on record, whereunder, it was decided to withhold 10% pension, gratuity, earned leave, etc. of the petitioner. Subsequently, order dated 29.01.2007 was also passed, whereby it was ordered that the payment of salary and allowances admissible to the petitioner during the period of his suspension would be decided only after the decision in the criminal cases. And, by order dated 25.08.2009, it was ordered that the petitioner would not be entitled for any payment, except the subsistence allowance during the period of his suspension. An interlocutory application, being I.A. No. 1211 of 2010 was filed challenging orders dated 29.01.2007 and 25.08.2009 seeking amendment in the writ petition. The said interlocutory application was allowed by order dated 24.01.2013.
3. Heard counsel for both the parties and perused the documents on record.
3.
4. Mr. Rajendra Krishna, learned counsel appearing for the petitioner confined his arguments to sustainability of Annexure 7 dated 29.01.2007 and Annexure 8 dated 25.08.2009. Learned counsel has submitted that orders dated 29.01.2007 and 25.08.2009 were issued without issuing any showcause notice to the petitioner. Admittedly, no proceeding under Rule 43 (b) of the Jharkhand Pension Rules was ever initiated against the petitioner and therefore, the impugned order dated 29.01.2007 is liable to be quashed. Learned counsel for the petitioner has further submitted that before resorting to Rule 97 of the Jharkhand Service Code, a second showcause notice should have been issued to the petitioner, which has not been done in the present case and therefore, order dated 25.08.2009 is also liable to be quashed.
5. On the other hand, learned counsel for the Respondent State of Jharkhand has submitted that the charges against the petitioner were grave. The petitioner was found involved in three cases in Fodder Scam and he was put under suspension for this reason. Though, the petitioner has been granted pardon by the Court, a decision has been taken by the Department to release the full pensionary benefits to the petitioner only after conclusion of the trial in the criminal cases. The learned counsel for the Respondent State of Jharkhand has further submitted that in view of the opinion of the learned Advocate General, a decision was taken as contained in order dated 25.08.2009, whereunder, it was ordered 4. that the petitioner would not be entitled for grant of salary, allowances, etc. except the subsistence allowance during the period of his suspension.
6. From the record of the case, it is an admitted position that no departmental enquiry was initiated against the petitioner nor any proceeding under Rule 43(b) of the Jharkhand Pension Rules was initiated against him. The Respondent State of Jharkhand has admitted in Paragraph No.15 of the counter affidavit that proceeding under Rule 43(b) of the Jharkhand Pension Rules could not be initiated against the petitioner. The learned counsel appearing for the State of Jharkhand has also admitted that no showcause notice was issued to the petitioner before the impugned orders dated 29.01.2007 and 25.08.2009 were passed.
7. I am of the opinion that such a procedure cannot be adopted by the Respondent State of Jharkhand. The pension, gratuity, earned leave, etc. of a government servant can be withheld or withdrawn only in accordance with the procedure prescribed under law. Further, the pendency of the criminal case cannot be made a ground for withholding the pension of a government servant and therefore, order dated 29.01.2007 contained in Annexure 7 is liable to be interfered with by this Court.
8. In so far as the plea of the learned counsel for the petitioner that a second showcause notice was required to be issued, for 5. assailing the order dated 25.08.2009 is concerned, I am of the opinion that it deserves to be accepted.
9. In "Sharafat Hussain Versus State of Bihar & Anr.", reported in 2003(3) JCR 102 (Jhr), it has been held that as no second show cause notice was issued to the employee, order passed under Rule 97 of the Bihar Service Code is not sustainable in law. Similar view has been taken by the Division Bench of Patna High Court in "Shri Mahabir Prasad Versus The State of Bihar & others", reported in 1988 PLJR 82 and in "Biswanath Mitra Versus State of Bihar & Ors.", reported in 2003 (4) PLJR 71. This issue has recently been decided by this Court by order dated 22.02.2013 in W.P.(S) No.4179 of 2002 also.
10. In view of the aforesaid discussion and reasons, orders dated 29.01.2007 and 25.08.2009 are hereby quashed. However, the Department would be at liberty to proceed against the petitioner, if permissible in law.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 22nd March, 2013 R.K./ A.F.R.