Jharkhand High Court
Anant Pandey vs The State Of Jharkhand on 14 January, 2020
Author: S.N.Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3339 of 2018
Anant Pandey. ... ...Petitioner
-Versus-
1. The State of Jharkhand.
2. The Secretary, Department of Animal Husbandry and Fisheries
Resources Nepal House, Doranda, P.O. & P.S. Doranda,
Dist. Ranchi.
3. The Director, Department of Animal Husbandry East Singhbhum,
P.O. & P.S. Jamshedpur, Dist. Jamshedpur. ...Respondents
------------
CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner :Mr. Sanjay Prasad, Advocate.
For the Respondents :Mr. Rupesh Singh, G.P. V.
------------
07/ 14.01.2020 The petitioner has approached this Court for the following reliefs:-
i. For quashing the order dated 26.2.18 contained in memo No.192 dated 27.2.18 passed by the respondent No.3 whereby 100% pension of petitioner has been withheld permanently. ii. For commanding upon the respondents to pay the arrear of pension as well as current pension to him along with statutory and penal interest.
iii. For direction upon the respondent to withdraw direction to freeze the balance amount with regard to SB Account No. 484210100000913 lying in Bank of India, Chataro Branch of petitioner.
2. The case of the petitioner lies in a narrow compass. The petitioner was posted as Clerk at District Animal Husbandry Officer, Jamshedpur. In the year 1996 a case regarding Fodder Scam vide RC Case No.52A/96 was registered against peon to higher authorities including the petitioner. On account of absence from duty, petitioner was put under suspension by an order dated 8.2.96 contained in memo No.139, however, no departmental proceeding was initiated against him. The petitioner retired from service on 31.1.2002 and after his retirement, the pension has been fixed and pension has regularly been paid to him in accordance with law. The aforesaid case vide RC Case No.52A/96 was decided and judgment was passed on 18.1.12. convicting the petitioner along with other accused persons however petitioner has been granted provisional bail for preferring appeal. The petitioner filed an appeal vide Criminal Appeal (S.J.) No.159/12 in the Hon'ble Jharkhand High Court, Ranchi and the Hon'ble Court had been pleased to admit the appeal for hearing 2 and provisional bail of petitioner has been confirmed staying the sentence vide order dated 10.2.12. The petitioner has been regularly paid pension after his retirement on 31.1.02. Thereafter a show-cause notice was issued vide memo No.716 dated 22.5.2017 asking the petitioner as to why proceeding under 43A Pensions Rule be not initiated against him. On 1.8.17 the petitioner replied to the show-cause notice stating therein that the proceeding under Rule 43A of the Pension Rule after 15 years of his retirement is not maintainable and the same is liable to be dropped. Subsequently, a second show-cause notice was issued vide memo No.1399 dated 11.9.2017 asking the petitioner as to why action under provision of Rule 43 (A) be not taken against him. The petitioner replied his second show-cause notice stating therein that without finding of enquiry officer or any report is not only against the norms and provisions laid down under Pension Rule but also under the teeth of the law settled by the High Court as well as by the Apex Court. In spite of that respondent No.8 vide memo No.192 (NI) dated 27.2.18 withheld the pension and gratuity of the petitioner and a direction was also given to freeze his SB A/C through which he has been getting pension. Aggrieved thereto, the petitioner has been constrained to knock the door of this Court.
3. Mr. Sanjay Prasad, learned Counsel for the petitioner submits that the impugned order dated 26.2.2018 & 27.02.2018 are illegal in view of the fact that the petitioner has honourably retired on 31.1.2002 itself and even no departmental proceeding was initiated and he has been continuously paid pension for more than 17 years and above. The impugned orders are against the norms and provisions laid down under Rule 43 (A) of the Jharkhand Pension Rule as the law has provided riders limiting the jurisdiction of the State to keep away the poor pensioner with their right to pension and grauity. The provisions made under 43 (A) and 43 (b) of the Bihar Pension Rules also provides certain riders as provided under Sub-Rule and in such cases it is not open to take any action against the procedure. The action regarding freezing the SB Account of the petitioner is illegal and without jurisdiction.
4. Per contra counter-affidavit has been filed.
5. Learned Counsel for the respondents vehemently opposing the contention of the petitioner submits that until the final disposal of Appeal filed by the petitioner against the order passed in RC A.H.D. Scam No.52 (A)/96, the petitioner is considered guilty and thus punishment given to the petitioner 3 is justified as per Rule and hence the writ petition has got no merit and it is liable to be dismissed.
6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:-
i. Admittedly after retirement no departmental proceeding was ever initiated against the petitioner and he received pension continuously for more than 17 years and above. ii. Rule 43 (a) and 43(b) of the Bihar Pension Rules is not applicable in the case of the petitioner as cause of action arose in the year 1996, petitioner retired on 31.1.2002 and proceedings under Rule 43(a) &
(b) was initiated in the year 2017.
iii. Respondent-State is precluded from initiation of any proceeding after more than 17 years of retirement.
iv. Pension of an employee which is a statutory right cannot be taken away without adhering to the procedures of law.
v. Rule 43(a) provides that Government may withhold pension or part of the pension if pensioner is convicted of serious crime or be guilty of grave misconduct. However, as per the proviso (a) of Rule 43(b), the Government could have started departmental proceeding during the service period of the employee or his re-employment. As per sub-clause (ii) of proviso (a) of Rule 43(b), such departmental proceeding can be initiated with respect to pension which took place within four years before the institution of such proceeding.
7. The petitioner retired in the year 2001 and was not subjected to any departmental proceeding. The petitioner continuously received pension for 17 years. It was only in the year 2012 pension was stopped illegally which could not have been done and as such the impugned orders stopping 100% of pension is not tenable in the eyes of law. Similar issue fell for consideration before this Court and this Court in L.P.A.No.525 of 2012 decided on 16.01.2013, reported in 2013 (2) JCR 223 (Jhr.) in case of "Radha Raman Sahay & Ors. vrs. State of Bihar & Ors. has observed thus:
"6. We considered the submission of learned Counsel for the parties and perused the facts of the case. Undisputedly, the 4 appellant No.1 retired on 29th February, 1996 and according to learned Counsel for the appellants, the F.I.R. was lodged on 25 th January, 2001 and charge-sheet was filed on 28th June, 2006. From the counter filed by the respondent in the writ petition, it appears that after conviction of the appellant No.1 in one case out of several cases, only on 14th January, 2008 a notice under Section (Rule, 1950) 43 (a) and 43(b) of the Rule was issued to the appellant No.1 and thereafter the impugned order dated 24 th October, 2008, by which the appellant's No.1 pension was stopped, was passed. The Rule 43 is as under:-
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 pensioner 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 cause to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement :
Provided that-
[a] such departmental proceeding, 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 not 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 of 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 Commission, shall be consulted before final orders are passed.5
Explanation.- For the purpose 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."
8. The case of the petitioner stands on similar footing to that of the petitioner in L.P.A.No. 525 of 2012 and as such the petitioner deserves similar treatment and is entitled for same relief.
9. As a squeal to the aforesaid Rule, Guideline, judicial pronouncement and observation, the impugned orders dated 26.2.18 & 27.2.18 as contained in memo No.192 is hereby quashed and set aside. Respondents are directed to release the pension of the petitioner within a period of six weeks from the date of receipt/production of a copy of this order.
10. Accordingly, this writ petition is allowed.
[Dr. S.N.Pathak,J.] P.K.S.