Bhanukar Dubey vs State Of Jharkhand & Ors on 13 September, 2013

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Jharkhand High Court

Bhanukar Dubey vs State Of Jharkhand & Ors on 13 September, 2013

Equivalent citations: 2013 (4) AJR 489

The full pension of the petitioner has been withheld on the basis of an order dated 20th May, 2010 passed by the Deputy Commissioner, Godda, respondent no.3 in exercise of powers under Rule 43(a) of Jharkhand Pension Rules. The petitioner was implicated in a criminal case prosecuted by C.B.I. being Fodder Scam Case no. RC77(A)/96 for the alleged acts of cheating, forgery etc. read with relevant provision of Section 13(b) and 13(1)(c) (d) of the Prevention of Corruption Act, 1988. He retired on 31st January, 2003 as clerk in the Treasury Office, Godda. The judgment of conviction against the petitioner was rendered on 8th June, 2007, in which he was sentenced to undergo rigorous imprisonment for four years along with fine of Rs. 75,000/ by the trial court.

The petitioner preferred a criminal appeal being Cr. Appeal(SJ) No. 976/07, which has been admitted and he is on bail by the Appellate Court. After the order of conviction, the Respondents stopped the pension of the petitioner and order for recovery of the said amount was issued by an order dated 11th October, 2008.

The petitioner approached this Court in W.P.(S) No. 2031 of 2009, which was allowed in view of the reasons given in the judgment dated 11th November, 2009 passed in W.P.(S) No. 1656 of 2009, in the case of one Bal Krishna DubeyVs. State of Jharkhand & Ors. The said judgment dated 19th November, 2009 in the case of the petitioner is at Annexure1 while that of in the case of Bal Krishna Dubey is at Annexure1/1. The learned Single Judge of this Court in the said judgment, however, observed that it would be open to the State Government to pass a fresh order after affording opportunity of hearing to the petitioner in accordance with law laid down in the judgment of Bal Krishna Dubey's case. Thereafter, the impugned order dated 2. 20th May, 2010 Annexure5 has been passed by Deputy Commissioner, Godda, whereby in exercise of powers under Rule 43(a) of Jharkhand Pension Rules, the entire pension of the petitioner has been stopped. The same order has been assailed on behalf of the petitioner by relying upon a judgment rendered in the case of Bal Krishna Dubey rendered in W.P.(S) No. 1564 of 2010 on 18th February, 2013.

According to the petitioner, after the judgment rendered in Bal Krishna Dubey on 11th November, 2009 which is at Annexure1/1, the respondents again passed an order by which payment of pension of the said petitioner was stopped and order for recovery of the amount of pension already paid to him was issued. The said person Bal Krishna Dubey once again had approached this Court in W.P.(S) No. 1656 of 2009, assailing the said order. It is further submitted that the said petitioner, Bal Krishna Dubey was also implicated in the same Fodder Scam Case no. RC77(A)/96, like the present petitioner and had also been convicted with the same punishment to undergo rigorous imprisonment for four years along with fine. The said person had also preferred criminal appeal which has been admitted and he is on bail by the appellate court. In such circumstances, learned counsel for the petitioner has placed reliance on the said judgment rendered in the case of Bal Krishna Dubey on 18th February, 2013 for quashing of the present impugned order as well as the case of both persons, according to him, are same and similar.

Learned counsel for the RespondentsState, has not been able to dispute, almost the identical facts involving the said petitioner Bal Krishna Dubey whose pension was also stopped on his conviction in the same Fodder Scam Case no. RC77(A)/96. This Court has quashed the order impugned by which the pension of the said petitioner was stopped and order for recovery of the amount of pension already paid to him.

I have heard learned counsel for the parties and gone through the materials on record. From what has been stated hereinabove, it, is, therefore, apparent that there are no distinguishing features in the present case with that of the case of Bal Krishna Dubey, rather all the features are common. This petitioner was working as clerk in the Treasury Office, Godda and the said Bal Krishna Dubey was also posted in the Directorate of Treasury and was implicated in the same Fodder Scam Case no. RC77(A)/96. By the same judgment dated 8th June, 2003, this petitioner was also convicted and sentenced to undergo rigorous 3. imprisonment for four years with fine, like other person. The present petitioner has also preferred a criminal appeal being Criminal Appeal (SJ) No. 976/07 and has been on bail granted by Appellate Court.

Learned Single Judge of this Court in the said case has discussed the legal position and has therefore proceeded to hold that the impugned order by which the pension has been stopped and order for recovery of the amount of pension already paid to him, is not sustainable in law. The alleged notice issued in respect of the present petitioner before passing of the impugned order dated 20th May, 2010, is also beyond 4 years from the date the alleged misconduct took place.

For better appreciation the relevant extracts of the Judgment of Bal Krishna Dubey is also being quoted hereunder:

"8. The learned counsel for the petitioner has submitted that though, the show cause notice was issued to the petitioner contemplating a proceeding under Rule 43 (b) of Jharkhand Pension Rules, the impugned order dated 13.02.2010 has been passed under Rule 43(a) of the Jharkhand Pension Rules. He submits that the impugned order dated 13.02.2010 is bad for the simple reason that under the provision of Rule 43 (a) of Jharkhand Pension Rules, no order for withdrawing or forfeiture of pension can be passed and on this ground alone, the impugned order is liable to be quashed. He further submits that in view of provisions contained in Rule 43 of Jharkhand Pension Rules, no proceeding can be initiated in respect of an event which took place more than four years before institution of such proceeding. The petitioner committed the alleged misconduct prior to the year 1996 and no proceeding was initiated against the petitioner within the prescribed period of four years and therefore, even if, it is assumed that the impugned order has been passed under Rule 43 (b) of Jharkhand Pension Rules, still it is not sustainable in law. On the other hand, the learned counsel for the respondents has submitted that it was typographical mistake in the impugned order whereby Rule 43 (a) has been wrongly typed and in fact, the impugned order has been passed under Rule 43 (b) of the Jharkhand Pension Rules. He further submits that the charges against the petitioner are grave and he has been convicted by a competent Court and therefore, the misconduct has been proved. Rule 43

(b) of Jharkhand Pension Rules is extracted;

"43 (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 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 4. 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

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."

9. It is thus clear that although a departmental proceeding against the petitioner could have been initiated, however as per sub-clause (ii) of Proviso (a) of Rule 43 (b) such departmental proceeding has to be initiated within four years when the alleged misconduct was committed.

10. The period during which the petitioner committed misconduct is prior to year 1996. The petitioner has superannuated from service with effect from 31.01.2004. Admittedly, no departmental proceeding was initiated against the petitioner nor any show cause notice was issued to the petitioner within the period of four years from the date of alleged occurrence / misconduct. Even after the creation of a new State, i.e. the State of Jharkhand no step was taken by the respondents till 22.12.2008, and the letter/order dated 22.12.2008, was issued without issuing any show cause notice to the petitioner. The said notice was challenged by the petitioner in W.P.(S) No. 1656 of 2009 and this Court had quashed the said order and permitted the respondents to take a decision in accordance with law.

11. On a plain reading of the impugned order dated 13.02.2010, few facts are apparent. The specific plea raised by the petitioner with respect to applicability of Rule 43 (b) of Jharkhand Pension Rules in his reply to the show cause notice dated 16.01.2010 has not been considered by the respondent. The impugned order has been passed only on the basis that the petitioner has been convicted in R.C. Case No. 77 (A) of 1996, although, it has been recorded in the order that petitioner's appeal in the Jharkhand High Court challenging the order of conviction and sentence is pending. In the impugned order, it has been wrongly recorded that in the Criminal Appeal filed by the petitioner, no order has been passed by the Jharkhand High Court whereas, the said appeal has been admitted and the petitioner has been admitted to bail. I further find that the impugned order dated 13.02.2010 has been passed in complete ignorance of the direction of this Court in order dated 11.11.2009. By order dated 13.02.2010, the pension of the petitioner was stopped and an order for recovery of the amount already paid to the petitioner on account of pension was passed.

12. In view of the provision contained in Rule 43(b) of the Jharkhand Pension Rules, no proceeding can be initiated in respect of an event which took place more than four years before institution of any proceeding. The power of the Government to withhold pension under Rule 43 (b) of Jharkhand Pension Rules has been discussed in a Full Bench judgment of this Court in the case of the "Dr. Dudh Nath Pandey Vs. State of Jharkhand" [ reported in 2007 (4) JCR 1 (Jhr) ].The earlier order dated 22.12.2008 was quashed by this Court because it was passed without following the mandate of Rule 43 (b) of Jharkhand Pension Rules.

13. In the present proceeding also I find that the impugned order dated 13.02.2010 is not sustainable in law. The show cause notice dated 16.01.2010 is clearly beyond four years from the date when the alleged misconduct took place. The petitioner was granted pension and other retiral benefits and he was permitted to superannuate on 31.01.2004 5. without issuing any show cause notice or initiating any departmental proceeding against him. While interpreting Rule 43 (b) of Jharkhand Pension Rules, the Hon'ble Supreme Court in the case of "State of Bihar & Ors. Vs. Mohd. Idris Ansari" [reported in 1995 Suppl (3) SCC 56], has held as under:

7."A mere look at these provisions shows 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. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27.9.1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17.10.1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition No. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17.10.1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned notice dated 27.9.1983. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17.10.1987."

14. In an identical case a Division Bench of this Court in the case of "Radha Raman Sahay & Ors. Vs. The State of Bihar & Ors." (L.P.A. No. 525 of 2001) has held as under:

" From the facts it is clear that in spite of criminal case since 1996, when appellants approached the Court by filing C.W.J.C. No. 1617 of 1997 ( R ) the appellant was allowed the pensionary benefits by order of this Court dated 29thth April, 1998 which was upheld by the Division Bench vide order dated 28thth January, 2001. It appears that after conviction of the appellant no.1 in the year 2008, the appellant's no. 1 pension has been stopped by the impugned order. 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 enquiry can be initiated with respect of pension which took place within four years before the institution of such proceeding. Therefore, the appellant who retired in the year 1996 and was not subjected to any departmental proceeding and he retired and he approached this Court by filing C.W.J.C. No. 1617 of 1997 ( R ) wherein order was passed for giving benefit of the pension to the petitioner as back as on 29thth April, 1998 then in the year 2008, the appellant's pension could not have been withheld.

In view of above reasons, the impugned order dated 27thth November, 2012 permitting the respondent to initiate the departmental proceeding against retired employee of 1996 for passing any order with respect to withholding of the pension or part thereof is quashed. The L.P.A. Is accordingly allowed."

15. On a consideration of the materials on record and Rule 43 (b) of Jharkhand Pension Rules, I find that order dated 13.02.2010 does not satisfy the requirements of law. In view of the law laid down by the Hon'ble Supreme Court and this Court with respect to Rule 43 (b) of Jharkhand 6. Pension Rules, order dated 13.02.2010 is clearly not sustainable in law and is liable to be quashed. The writ petition is allowed. The respondents are directed to release pension and arrears of pension to the petitioner forthwith.

16. There shall however, be no order as to costs."

In view of the reasons stated in the aforesaid judgment, the petitioner also deserves parity of treatment. Accordingly, the impugned order dated 20th May, 2010 passed by the respondent no.3, Deputy Commissioner, Godda is quashed. The respondents shall release the pension and arrears of pension to the petitioner forthwith.

Accordingly, this writ application is allowed.

(Aparesh Kumar Singh,J) jk

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