Jharkhand High Court
The State Of Jharkhand Through Its Chief ... vs Jitendra Prasad Sharma on 31 January, 2014
Equivalent citations: 2014 LAB. I. C. (NOC) 467 (JHAR.), 2014 (3) AJR 392
Author: R. Banumathi
Bench: Chief Justice, Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L. P. A. No. 79 of 2013
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1. The State of Jharkhand
through its Chief Secretary, Ranchi
2. The Principal Secretary, Department of Home,
Govt. of Jharkhand, Ranchi.
3. The Secretary, Department of Transport,
Govt. of Jharkhand, Ranchi.
4. The Director General of Police,
Vigilance Bureau, Ranchi. ... ... Appellants
Versus
Jitendra Prasad Sharma ... ... Respondent
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CORAM : HON'BLE THE CHIEF JUSTICE
: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Appellants : Mr. Rajesh Kumar, Advocate
For the Respondent : Mr. Rajiv Ranjan, Advocate
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C.A.V. On 27.01.2014 Pronounced on 31.01.2014
In this Letters Patent Appeal challenged to order
dated 19.09.2012 passed in W.P.(S) No. 3019 of 2011 is
confined to the interpretation given by the learned Single
Judge to Rule 43 (b) of Jharkhand Pension Rules which reads as
under :
Rule 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-
2
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
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
3
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."
2. The respondent herein (writ petitioner) was
inducted in the State Police Service and he was posted as
Deputy Superintendent of Police. On 29.07.2003, he was
transferred to Transport Department and by order dated
31.12.2005his service was returned to his parent department. A departmental proceeding was decided to be initiated against the respondent and consequently, Resolution dated 22.05.2009 was issued. The inquiry officer submitted the report in which four charges out of five charges, i.e. except charge no. 4, were found proved. A second show-cause notice was issued to the writ petitioner and the final order withholding his 50% pension was passed on 31.12.2010. In the meantime, the respondent had superannuated from service w.e.f. 30.11.2009. Aggrieved, the respondent moved this Court in W.P.(S) No. 3019 of 2011 which was allowed by order dated 19.09.2012 holding that sub-Rule (b) of Rule 43 of the Jharkhand Pension Rules can be pressed in service for withholding in full or in part, pension of an 4 employee only when the Government has "suffered pecuniary loss on account of misconduct, negligence or omission on his/her part" and since no pecuniary loss was suffered by the Government on account of alleged misconduct of the writ petitioner, order dated 19.09.2012 was liable to be quashed.
3. Mr. Rajesh Kumar, the learned Government Advocate has contended that, by the impugned order dated 19.09.2012, the scope of Rule 43 (b) of Jharkhand Pension Rules has been restricted in as much as, it has been held that it can be invoked only in cases of pecuniary loss suffered by the Government, which on a plain reading of Rule 43(b) of the Jharkhand Pension Rules was not intended by the framers of the Rules. Stressing on explanation to Rule 43 (b), the learned counsel contends that the situations contemplated under Rule 43 (b) includes, judicial proceeding which can either be a criminal proceeding or a civil proceeding, as also departmental proceeding in which a delinquent employee has been found guilty of grave misconduct. Referring to Rule 139 of Jharkhand Pension Rules, the learned counsel for the respondent-State of Jharkhand contended that the State Government is competent to revise an order of pension, if the service of the pensioner was not thoroughly satisfactory or if there was proof of grave misconduct on his part, while in service. 5
4. Per-contra, Mr. Rajeev Ranjan, the learned counsel for the respondent supported the impugned order dated 19.09.2012 and submitted that Rule 9 of the Central Civil Services (Pension) Rules, 1972 is pari-materia to Rule 43 (b) of the Jharkhand Pension Rules. The learned counsel has submitted that the first part of Rule 43(b) is confined to right of the Government to recover from pension of the employee, the pecuniary loss caused to the Government, if the employee is found guilty of grave misconduct in a departmental or a judicial proceeding. Whereas, the second part of Rule 43 (b) relates to power to withhold or withdraw pension if pecuniary loss has been caused to Government by misconduct or negligence of the employee during his service including service rendered on re-employment after retirement. The learned counsel for the respondent has thus, contended that in both the eventualities, Rule 43(b) of the Jharkhand Pension Rules can be invoked only if pecuniary loss has been sustained by the Government and in no other circumstances. The learned counsel for the respondent has further submitted that Rule 139 of the Jharkhand Pension Rules is not attracted in the present case and admittedly, no show-cause notice was issued to the respondent as envisaged under Rule 139 of the Jharkhand Pension Rules.
5. We have appreciated the rival contentions advanced by the learned counsel for the parties and 6 examined the documents on record.
6. In "Deokinandan Prasad Vs. State of Bihar and Others", reported in (1971) 2 SCC 330, the Hon'ble Supreme Court finally set at rest the ongoing debate regarding the nature of pension by holding that the right of a person to receive pension is akin to right to property under Article 31 (1) and by a mere executive order the State has no power to withhold the same. The decision by the Constitution Bench of the Hon'ble Supreme Court in "Deokinandan Prasad Vs. State of Bihar and Others"
(supra) finally settled the notion of pension being a bounty or a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court, as wrong.
7. In "State of Maharastra Vs. M.H.Mazumdar", reported in (1988) 2 SCC 52, the Hon'ble Supreme Court has observed that the State Government's power to reduce or withhold pension by taking proceeding against the government servant, even after his retirement is expressly preserved under the Rules. Thus, there cannot be a dispute that pension of an employee can be withheld or withdrawn by the Government in accordance with law. The pension of the respondent was withheld in terms of Rule 43 (b) of the Jharkhand Pension Rules and therefore, it has been withheld in accordance with law. A plain reading of Section 43(b) of the Jharkhand Pension Rules 7 would indicate that, it is in two parts viz, power of withholding or withdrawing pension and the right of ordering the recovery from pension if, the pensioner has been found guilty of grave misconduct in (a) departmental proceeding or (b) judicial proceeding or
(c) if the pensioner has caused pecuniary loss due to misconduct or negligence during his service. The words "withholding" or "withdrawing" and "ordering the recovery from the pension" envisage two different situations. The State Government has three distinct powers namely, either to (a) withhold or withdraw the pension in full, or (b) withhold or withdraw any part of the pension and, (c) a right of ordering the recovery from the pension of the pensioner. The right to recover from pension the whole or part of any pecuniary loss caused to Government is independent of the power of withholding or withdrawing pension. Pension can be withheld or withdrawn even in a situation in which it has not been found that pecuniary loss was caused to the Government by misconduct or negligence on the part of the pensioner. In the first part of Rule 43 (b) the important expression is "grave misconduct" for which the pensioner must have been held guilty in a departmental or a judicial proceeding. However, the second part of Rule 43 (b) incorporates the word "misconduct" or "negligence". The second part of Rule 43 (b) is aimed at resorting to power under Rule 43(b) of the Jharkhand Pension Rules in cases 8 where due to negligence or any other act/omission which can be termed 'misconduct', pecuniary loss has been suffered by the Government.
8. Relying on the judgment in "Smt. Normi Topno Vs. State of Jharkhand & Ors.", reported in 2008 (1) JCR 381 (Jhr) (FB), the learned counsel for the respondent has submitted that unless pecuniary loss was caused to the Government, Rule 43 (b) of the Jharkhand Pension Rules cannot be resorted to. The learned counsel relied on paragraph no. 34 of the said judgment which is extracted below :
34. "In view of Rule 43(b) no amount can be recovered from the pension except in accordance with the procedure prescribed thereunder. Only in the departmental proceeding or judicial proceeding when the pensioner is found guilty of misconduct and causing pecuniary loss to the Government by such misconduct then only it can be recovered."
9. The judgment in "Smt. Normi Topno Vs. State of Jharkhand & Ors." (supra) and particularly paragraph no. 34 of the said judgment make it clear that the decision in the said case relates to recovery of an amount of pecuniary loss suffered by the Government from the pension of the pensioner. There cannot be any dispute with the proposition as laid down in the said case that, no recovery can be made from pension of a pensioner except, in accordance with the procedure prescribed 9 under the law. This is also clear from the bare reading of Rule 43 (b) of the Jharkhand Pension Rules that unless a pensioner is found to have caused pecuniary loss to the Government, the Government would have no power of ordering recovery from the pension of the pensioner. This part of Rule 43(b) is distinct from the power of the Government to withhold or withdraw pension under the said Rule.
10. Referring to Rule 9 of the Central Civil Services (Pension) Rules 1972, the learned counsel for the respondent has contended that the second part of Rule 43 (b) in Jharkhand Pension Rules to the effect that, "or to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re-employment after retirement" is not incorporated in Rule 9 of Central Civil Services (Pension) Rules, 1972 which would indicate that only in a case where pecuniary loss has been caused to the Government, Rule 43 (b) of Jharkhand Pension Rules can be invoked against the pensioner.
11. The relevant portion of Rule 9 of the Central Civil Services (Pension) Rules, 1972 is extracted below :
9. "Right of President to withhold or withdraw pension - (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified 10 period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement :
Provided that the Union Public Service Commission shall be consulted before any final orders are passed :
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem."
12. The contention of the learned counsel for the respondent is not tenable. Power of the Government, to recover from pension in a case where pecuniary loss is caused, is independent and in addition to the power to withdraw or withhold pension. In "Union of India and Others Vs. B. Dev", reported in (1998) 7 SCC 691, a similar contention was raised that if pecuniary loss has not been caused to the Government, no order of withholding/withdrawing the pension can be made and the Hon'ble Supreme Court while rejecting the said contention observed thus :
11. "Rule 9 gives to the President the right of - (1) withholding or withdrawing a pension or part thereof, (2) either permanently or for a specified period, and (3) ordering recovery from a pension of 11 the whole or part of any pecuniary loss caused to the Government. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The power, therefore, can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension, in a case where any pecuniary loss is caused to the Government, that loss. This is an independent power in addition to the power of withdrawing or withholding pension. The contention of the respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable."
13. We accordingly hold that applicability of Rule 43(b) of the Jharkhand Pension Rules cannot be restricted only to the cases in which pecuniary loss has been suffered by the Government.
14. The writ petition was filed by the respondent herein seeking quashing of order dated 31.12.2010 whereby 50% of retiral benefit was withheld as a measure of punishment pursuant to departmental proceeding converted under Rule 43 (b) of the Jharkhand Pension Rules. The departmental proceeding was initiated against the respondent under Rule 55 of Civil Services (Conduct 12 and Appeal) Rules on 22.05.2009. The penalty order was challenged on the ground that the inquiry officer did not consider the defence of the respondent and infact, the charges as framed against the respondent were based on presumptions only.
15. Admittedly, a charge memo was served upon the writ petitioner for following misconduct :
(i) In compliance of the order dated 31.12.2005, petitioner did not report to his Home Department.
(ii) Petitioner remained in the Transport Department with effect from 01.01.2006 to 30.06.2006 without any order of the competent officer, despite the fact that he was relieved for his parent department.
(iii) Petitioner has done correspondence with the Transport Minister directly, in violation of Government Servant Conduct Rules.
(iv) Petitioner worked on the post of Enforcement Officer for 5 years without any payment, which goes to prove suspicious character of the petitioner and misuse of his post.
(v) During the Financial Year 2007-08 and 2008-09, recovery of the revenue was less when petitioner remained on the post of Enforcement Officer, Hazaribagh.
16. The learned Single Judge held that none of the charges suggests that due to misconduct, negligence, action or omission on the part of the writ petitioner, the State Government suffered any pecuniary loss and since an order under Rule 43 (b) of the Jharkhand Pension Rules 13 can be passed, withholding in full or partial pension of a pensioner only when the Government has suffered pecuniary loss on account of misconduct, negligence, action or omission on the part of the pensioner, the invocation of Rule 43 of the Jharkhand Pension Rules seemed to be totally arbitrary and unjustified. Consequently, the writ petition was allowed and the impugned order was quashed by the learned Single Judge.
17. However, since the writ petition has been allowed only on the ground that Rule 43 (b) of Jharkhand Pension Rules cannot be invoked unless the Government has suffered pecuniary loss and the challenge in the present Appeal by the State of Jharkhand is confined to the interpretation given by the learned Single Judge to Rule 43 (b) of the Jharkhand Pension Rules and since the merits of the case has not been examined by the learned Single Judge, we are of the view that the matter requires reconsideration by the learned Single Judge. Accordingly, the impugned order dated 19.09.2012 is set-aside and the matter is remitted back to the learned Single Judge for a fresh consideration.
(R. Banumathi, C.J.) (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 31st January, 2014 Tanuj /- A.F.R.