Jharkhand High Court
Bachoo Singh vs State Of Jharkhand & Ors on 18 February, 2013
Equivalent citations: 2013 (3) AJR 340
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
W.P.(S) No. 1636 of 2010 In the matter of an application under Article 226 of the Constitution of India Bachoo Singh ... ... ... Petitioner Versus 1. State of Jharkhand 2. Principal Secretary, Department of Finance, Govt. of Jharkhand, Ranchi 3. The Deputy Commissioner Singhbhum (East) Jamshedpur 4. The Treasury Officer, Singhbhum (East) Jamshedpur ... ... ... Respondents --- For the Petitioner : Mr. Sunil Kumar Sinha, Advocate For the Respondents : Mr. S.C. I PRESENT HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR Reserved on 01/02/2013 Delivered on18/02/2013 1. The only question involved in this writ petition is whether a second proceeding under Rule 43 (b) of Jharkhand Pension Rules can be initiated against a Government servant for the alleged misconduct for which he has already been punished. 2. The petitioner superannuated on 01.08.1997 from the post of Accountant when he was posted in Jamshedpur Treasury. The petitioner was charge-sheeted in R.C. Case No. 23 (A) of 1996 however, during the pendency of the investigation, he had superannuated. A proceeding under Rule 43 (b) of Jharkhand Pension Rules was initiated against the petitioner and after considering the enquiry report and explanation of the petitioner, order dated 28.05.2001 was passed whereby 25 % of the amount of pension of the petitioner was withheld under Rule 43 (b) of the Jharkhand Pension Rules and a further punishment under Rule 97 of Bihar Service Code was imposed whereby service of the petitioner was not to be counted during the period of suspension and during such period it was ordered that he would be entitled for the subsistence allowance only. Accordingly, the Accountant General, Ranchi fixed the pension of the petitioner by order dated 05.12.2001
and thereafter, he was paid his pension regularly.
3. The petitioner, it appears was convicted in R.C. Case No. 23 (A) of 1996 by order dated 23.04.2008. The petitioner preferred Criminal Appeal No. 563 of 2008 (S.J.) which was admitted by the High Court and the petitioner was granted bail. Without giving -2- any notice to the petitioner, the pension of the petitioner was withheld from December, 2009 and therefore, the petitioner made enquiry in the office of the Treasury Officer, Jamshedpur, where the petitioner was informed that in compliance of order dated 10.11.2009 issued by Principal Secretary (Finance) the pension of the petitioner was withheld. The petitioner thereafter, submitted his request to the Treasury Officer, Jamshedpur on 02.12.2009 for release of pension. When the petitioner could not get any response, he filed the present writ petition seeking quashing of order dated 10.11.2009 in the aforesaid facts.
4. A counter-affidavit has been filed on behalf of the respondents justifying the impugned order of withdrawal / forfeiture of pension of the petitioner.
5. Heard counsel for both the parties and perused the documents on record. The learned counsel for the petitioner has submitted that a proceeding under Rule 43 (b) of Jharkhand Pension Rules was initiated against the petitioner and order inflicting punishment in the departmental proceeding was passed on 28.05.2001 and therefore, the pension of the petitioner can not be forfeited pursuant to letter dated 10.11.2009. He further submits that even a second proceeding under Rule 43 (b) of Jharkhand Pension Rules could not have been initiated against the petitioner for withholding / forfeiture of the pension of the petitioner. The learned counsel for the respondents submits that the petitioner has been convicted in the Criminal Case. The charges against the petitioner are grave and therefore, his pension has been withdrawn under Rule 43 (a) of Jharkhand Pension Rules.
6. On perusal of the writ petition, I find that the petitioner has specifically raised a plea that withdrawing his full pension amounts to double jeopardy as the petitioner has already been punished in a proceeding under Rule 43 (b) of Jharkhand Pension Rules. The petitioner has further raised a plea that withdrawing the full pension of the petitioner is in violation of principle of natural justice. The respondents have not specifically controverted the said plea of the petitioner. The respondents have simply stated that the petitioner has abused his position as a public servant causing pecuniary advantage to the suppliers and for that he has been convicted in the criminal case. It has further been stated that under Rule 43 (a) of Jharkhand Pension Rules future -3- conduct is an implied condition for grant of pension and the Provincial Government reserves the right of withholding and withdrawing of pension or any part of it if the government servant is convicted for a serious crime or is guilty of grave misconduct.
7. While interpreting Rule 15 of Central Civil Services ( Explanation, Control and Appeal) Rules, 1957, a Constitution Bench of the Hon'ble Supreme Court has held that if there is some defect in the enquiry conducted by the Investigating Officer, the Disciplinary Authority can direct the Enquiry Officer to conduct further enquires in respect of that matter but it can not direct a fresh enquiry to be conducted by some other officer. In the said case of "K.R. Deb Vs. The Collector of Central Excise, Shillong,"
(reported in AIR 1971 SC 1449), the Hon'ble Supreme Court has held as under:
13. "It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquires on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9."
8. In the case of "Union of India & Another Vs. Kunisetty Satya Narayana" [reported in (2006) 12 SCC 28] the Hon'ble Supreme Court has found that:
"if the charge which has been levelled under the Memo dated 23.12.2003 had earlier been enquired into a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable."
9. In the case of "Kanailal Bera Vs. Union of India & others", [reported in (2007) 11 SCC 517] Rule 27 of Central Reserve Reserve Police Force Rules, 1955 fell for consideration before the Hon'ble Supreme Court and it has been held:
-4-"The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 05.04.1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules, 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry."
10. In the case of "Union of India Vs. K.D. Pandey & Another"
[reported in (2002) 10 SCC 471], the Hon'ble Supreme Court has been pleased to hold:
"Where the enquiry report submitted contains specific findings in respect of each of the charges after discussing the matter, disciplinary authority, if not satisfied with the said report, can not remit the matter to enquiring authority for further enquiry. If it is done, it would mean a second enquiry and not a further enquiry in the same matter and thus, such a practice if allowed would be abuse of process of law."
11. In a recent judgment delivered in the case of "Nand Kumar Verma Vs. State of Jharkhand & Others" [reported in (2012) 3 SCC 580], the Hon'ble Supreme Court while examining the case of a Chief Judicial Magistrate who was demoted from the post of Chief Judicial Magistrate to the Post of Munsif, has held that; "having accepted the explanation and having communicated the same to the appellant, the High Court would not have proceeded to pass the order of initiating departmental proceedings and reverting the appellant from the post of Chief Judicial Magistrate to the post of Munsif." The Hon'ble Supreme Court was further pleased to observe that on general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the Rules usually provide. The Hon'ble Supreme Court has held as under:
27. "In the present case, a charge memo was issued and served on the appellant. A reading -5- of the charge memo does not contain any reference to the proceedings of the Standing Committee at all. It is also not found as to whether the earlier proceedings has been revived in accordance with the procedure prescribed. In fact, after receipt of the charge memo, the appellant, in his reply statement, had brought to the notice of the enquiry officer that on the same set of charges, a notice had been issued earlier and after receipt of his explanation dated 21.12.1994, the Standing committee, after accepting his explanation had dropped the entire proceedings and the same had been communicated to him by the Registrar General of the High Court by his letter dated 02.02.1995. In spite of his explanation in the reply statement filed, the enquiry officer has proceeded with the enquiry proceedings and after completion of the same, has submitted his report which has been accepted by the disciplinary authority. Therefore, in these circumstances, there is no justification for conducting a second enquiry on the very charges, which have been dropped earlier.
Even though the principle of double jeopardy is not applicable, the law permits only disciplinary proceedings and not harassment. Allowing such practice is not in the interest of public service. In the circumstance, we cannot sustain the impugned order reverting the appellant to the lower post. "
12. From the record of the case, I find that letter dated 10.11.2009 has been issued without issuing any show cause notice to the petitioner. It also does not appear from letter dated 10.11.2009 under which provision of law, the said letter has been issued for withholding the pension of the petitioner. I further find that the pension of the petitioner could not have been withdrawn under Rule 43 (b) of the Jharkhand Pension Rules without giving any show cause notice to the petitioner besides, complying with other mandatory requirements under Rule 43 (b) of the Jharkhand Pension Rules which is extracted below:
"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.-6-
(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 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 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 even 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 Commission, 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."
13. On a plain reading of Rule 43 of Jharkhand Pension Rules, I find that no second proceeding can be initiated under Rule 43 of Jharkhand Pension Rules. The petitioner was issued show cause -7- notice and a departmental proceeding was initiated against him under Rule 43 (b) of Jharkhand Pension Rules and order of punishment was already passed on 28.05.2001 and therefore, even if, it is assumed (as pleaded in the counter-affidavit) that order dated 10.11.2009 has been passed under Rule 43 (a) of the Jharkhand Pension Rules, I am of the opinion that it is not permissible in law. Admittedly, no show cause notice was issued to the petitioner before issuing a direction under letter dated 10.11.2009 for withdrawing full pension of the petitioner and on that count also the impugned order is bad in law.
14. Without going into further details I hold that withdrawing the full pension of the petitioner in pursuance of letter dated 10.11.2009 of the Principal Secretary, Department of Finance, Government of Jharkhand is not permissible in law for, the petitioner has already been punished for the same misconduct in a departmental proceeding initiated earlier. A second enquiry for the same misconduct is not permissible under Rule 43 of the Jharkhand Pension Rules.
15. In the result, the writ petition is allowed. The respondents are directed to release the pension of the petitioner forthwith along with the arrears of pension.
16. There shall however, be no order as to costs.
(Shree Chandrashekhar, J.) JHARKHAND HIGH COURT, RANCHI Dated:.18/02/2013 AFR Amit