Rajendra Prasad vs State Of Jharkhand & Ors on 23 April, 2014

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Jharkhand High Court

Rajendra Prasad vs State Of Jharkhand & Ors on 23 April, 2014

By the impugned order dated 10.05.2011 issued by the Special Secretary, Government of Jharkhand, all the admissible post retirement dues of the petitioner has been kept in abeyance apparently on his conviction by the Fast Tract Court, Patna in Case No. 1267 of 1994 for the offences under Section 302 of the Indian Penal Code and 27 of the Arms Act and on being sentenced to undergo life imprisonment.

Learned counsel for the petitioner has submitted that the said judgment of the Trial Court is pending in Cr. Appeal No. 175 of 2004 before the learned Division Bench of the Patna High Court. Assailing the impugned order, it has further been stated that the admissible post retirement dues of the petitioner like the pension and gratuity have been withheld without any issuance of show cause notice or opportunity to the petitioner. He was serving as Assistant having been appointed on 30.10.1980 and confirmed in the year 1987 and superannuated on 30.04.2004 as Section Officer.

According to the petitioner, even provisional pension has been stopped pursuant to the impugned order. Earlier the writ petitioner had approached the Patna High Court, however, which was allowed to be withdrawn with liberty to approach appropriate forum, whereafter the present writ petition has been filed. Learned counsel for the petitioner submits that in similar circumstances, the action of the respondent-Government in stopping the pension of a similarly situated petitioner, and an order of recovery on his conviction in Fodder Scam Case was quashed by this Court in W. P. (S) No. 5641 of 2008 in the case of Jagdish Sharma Vs. State of Jharkhand & Ors. reported in 2013(2) JCR 503 (Jhr.). It is submitted that in the said case also, in the absence of show cause notice or opportunity to the petitioner, the decision was held to be violative of principle of natural justice as it entailed adverse civil consequences. Therefore, the writ petition deserves to be allowed in the similar manner by quashing the impugned order.

Learned counsel for the respondent-State has submitted that the impugned order of stoppage of pension has been issued on the basis of advice of the Law Department and the Finance Department based upon the resolutions dated 22.08.1974 bearing Memo No. 9144 and dated 31.10.1974 bearing Memo No. 11260 of the Finance Department. The petitioner has been convicted of a serious offences of murder under Section 302 of the Indian Penal Code and sentenced for life imprisonment. Therefore, such action has been taken in exercise of power conferred under the Jharkhand Pension Rules.

Having heard learned counsel for the parties and having gone through the relevant materials on records, it is not in dispute that the impugned order stopping the pension of the petitioner on his conviction for a criminal trial for the offences under Section 302 of the India Penal Code and 27 of the Arms Act and upon being sentenced for life imprisonment has been passed without any show cause or opportunity to afford reply by the respondent. It appears from the judgment relied upon by the petitioner in the case of Jagdish Sharma (supra) that in more or less similar circumstance on the conviction of the said person in a CBI case, the respondents chose to stop the pension and order its recovery in purported exercise of power conferred under Jharkhand Pension Rules. This Court while noticing the provision of Rule 43 (a) & (b) and also relying upon the judgment dated 11.11.2009 in W. P. (S) No. 1656 of 2009 held that the order of stoppage of pension and its recovery has been done against the petitioner without show cause or notice, though it entails adverse civil consequences. Principle of natural justice are, therefore, required to be observed before passing of such order. Accordingly, similar order in the said case was quashed. For better appreciation relevant paragraphs containing the opinion of the Court in Para-4 and 5 are being quoted hereinbelow:-

"4. Learned counsel for the respondents however justified the impugned orders on the ground that by invoking the powers conferred under Section 43(b) of the Jharkhand Pension Rules, which permit the employer to stop/withdraw whole or part of the pension of the employee depending upon in future conduct, the petitioner has been imposed with the said order of stoppage of pension on his conviction in a criminal case relating to fodder scam by the competent court. Learned counsel for the respondents State however does not dispute the assertion of the petitioner that the same have been made without issuance of any show cause or notice. The relevant portion of the order dated 11.11.2009 passed in W.P (S) No. 1655 of 2009 relied upon by the petitioner is quoted herein below:

"The source of such power on part of the Government has been attributed in the counter-affidavit to Rule

43. The said Rule is reproduced in its entirety below, for ready reference.

43(a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the petitioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.

(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have cause pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:

Provided that-

(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment.

(i) shall not be instituted save with the sanction of the State Government

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;

(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and

(c) the Bihar Public Service Commissioner, shall be consulted before final orders are passed.

Explanation.- For the purposes of the rule-

(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date, and

(b) judicial proceedings shall be deemed to have been instituted:-

(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court, and

(ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil court.

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

When the authority concerned has multiple choices under the Rule and each of those choices is likely to adversely affect the employee in a different manner, and when the principles of natural justice are not expressly excluded by statute, the said principles would require an opportunity of hearing to be afforded to the employee concerned before the decision is taken causing an adverse affect upon the employee.

In the present case, no such opportunity has been afforded.

The decision is vitiated on account of violation of principles of natural justice."

5. In the aforesaid facts and circumstances, therefore it appears that the orders of stoppage of pension and its recovery have been effected against the petitioner without any show cause or notice, though it entails adverse civil consequences. Principle of natural justice are therefore required to be observed before passing of an order. In that view of the matter, the impugned orders are quashed, however, leaving it open to the Government to take a fresh decision in accordance with law after giving due opportunity to the petitioner."

In the instant case, therefore, the impugned order dated 10.05.2011 stopping pension of the petitioner also deserves to be quashed. Therefore, the same is quashed, however, with a liberty to the respondents to take a fresh decision in accordance with law after due notice to the petitioner.

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

(Aparesh Kumar Singh, J.) Kamlesh/

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Jharkhand High Court