Jharkhand High Court
Suryadeo Prasad vs State Of Jharkhand & Ors on 7 May, 2015
Equivalent citations: 2015 (3) AJR 336
Author: R.R.Prasad
Bench: R.R. Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.4036 of 2009
Suryadeo Prasad son of late Vishnu Dayal Ram, resident of House No.28-T,
Tagore Hill Road, Morabadi, P.O. Ranchi University, P.S. Bariatu, Ranchi 834
008, District Ranchi ... ... Petitioner
Versus
1. The State of Jharkhand, through the Secretary, Road Construction
Department, Jharkhand Mantralaya, Project Building, H.E.C. Dhurwa, P.O. and
P.S. Dhurwa, District Ranchi.
2. Shri N.N. Sinha, father's name not known to the petitioner, Secretary, Road
Construction Department, Jharkhand Mantralaya, Project Building, H.E.C.
Dhurwa, P.O. & P.S. Dhurwa, District Ranchi.
3. Deputy Secretary, Road Construction Department, Jharkhand Mantralaya,
Project Building, H.E.C. Dhurwa, P.O. & P.S. Dhurwa, District Ranchi.
... ... Respondents
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CORAM: HON'BLE MR. JUSTICE R.R. PRASAD
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For the Petitioner : Mr. Sumeet Gadodia, Advocate
For the State : J.C. to S.C.I
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11/07.05.2015. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State.
This writ application has been filed for quashing of the Notification issued vide Memo No.3797(S) dated 01.08.2009(Annexure-11) whereby an order has been passed imposing major penalty of withholding 10% pension of the petitioner on permanent basis and at the same time excess amount amount drawn towards pension was ordered to be recovered.
Case of the petitioner is that the petitioner was appointed as Inquiry Officer in a departmental proceeding initiated against suspended Assistant Engineer, namely, Sri Manish Kumar, who had been charged of defalcating a sum of Rs.41,56,076/- and also for not submitting account of Rs.1,38,69,351/-. For conducting the said departmental proceeding, one Officer was appointed as Presenting Officer. When on account of non appearance of delinquent, departmental proceeding could not be concluded information of it was given by the petitioner to the department. Upon it, a direction was given to the petitioner to proceed exparte and to conclude it within the time stipulated therein. In spite of that, effort allegedly was not taken to conclude it and as such it remained un-concluded and, therefore, a departmental proceeding was initiated against this petitioner wherein the petitioner was imputed with following two charges:-
(I) The petitioner did not proceed exparte against the delinquent-Sri Manish Kumar in spite of direction being given in this regard to proceed exparte and to conclude it within the stipulated time. (II) The petitioner being the Engineer-in-Chief was aware of the fact that the first information report has been lodged against Sri Manish Kumar for misappropriation of huge amount, he should have proceeded even exparte but decline to proceed with the matter on the plea that for the said allegation FIR has been lodged which amounts to dereliction of the duty, thereby, the petitioner was charged to have acted in the matter, which in contravention of Rule 3(1) (i)(ii) and (iii) of the Government Servant Conduct Rules, 1976.
The proceeding was initiated on 08.05.2008. During that proceeding, the petitioner retired on his superannuation on 30.09.2008. Thereupon on 29.10.2008, the proceeding was converted into a proceeding as contemplated under Section 43(b) of the Jharkhand Pension Rules, 2000. Upon its conclusion, the inquiry officer submitted its report by giving finding that the delinquent though has not been found guilty for the charge of disobedience of the order of a superior, but is guilty of the charge of dereliction of the duty as he had shown his indifference in discharge of his duty and thereby it was concluded that the petitioner's conduct was contrary to Rule 3(1)
(ii) & (iii) of Government Servant Conduct Rules, 1976. It be stated that his conduct was not found contrary to Rule 3(1)(i) of the said Rule.
On such inquiry report, order of punishment was passed on 1 st August, 2009, whereby pension of the petitioner to the extent of 10% on permanent basis was withheld. That order is under challenge.
Mr. Sumeet Gadodia, learned counsel appearing for the petitioner submits that in substance the charge which was framed against the petitioner in a departmental proceeding was that he did not proceed with the inquiry of Mr. Manish Kumar, who had been alleged to have misappropriated huge money in spite of the order of his superior, rather declined to proceed even exparte. Taking this charge as it is, the proceeding should not have been converted into a proceeding under Section 43(b) of the Jharkhand Pension Rules, 2000 as the petitioner neither had been imputed with a charge of grave misconduct or even with charge of misconduct resulting into the pecuniary loss to Government or by negligence and, thereby, any order passed for withholding 10% of the pension is bad.
In this regard, learned counsel further submits that for invoking the provision as contained in Section 43(b) of the Jharkhand Pension Rules, 2000, there should have been a direct imputation of charge, that on account of non-proceeding with the proceeding, guilt of delinquent Mr. Manish Kumar was not found and, thereby, amount which he was alleged to have been misappropriated, could not be recovered. Still the Disciplinary Authority has passed the order that on account of non proceeding with the departmental proceeding relating to the delinquent Mr. Manish Kumar, the amount could not be recovered from Manish Kumar, which is quite illegal as the petitioner has never been put to such charge. If such charge is not there, then any order passed by the authority for recovery of 10% of the pension amount, would be bad, not only in view of the provision as contained in Section 43(b) of the Jharkhand Pension Rules, 2000 but also in view of the decision rendered in a case of "Chandreshwar Prasad Sinha vs. State of Bihar and Another reported in [(2001)1 Supreme Court Cases 369]"
As against this, learned counsel appearing for the State submits that the charge was very much there that the petitioner being the Engineer-in- Chief must be aware that the first information report has been lodged against Mr. Manish Kumar for misappropriation of the amount and thereby, he should have proceeded with the proceeding even exparte. Since the petitioner did not proceed even exparte on account of non-appearance of the delinquent, no order on punishment could be passed against the delinquent-Manish Kumar and, thereby the amount, which had been misappropriated could not be recovered from Mr. Manish Kumar and, thereby the petitioner can be said to have caused loss to the government to the extent which had been misappropriated by Mr. Manish Kumar.
Having heard learned counsel appearing for the parties and on perusal of the record, I do find that the charges upon which the petitioner was proceeded with in a departmental proceeding were that (i) the petitioner who was appointed as inquiry officer to proceed with the departmental proceeding against Mr. Manish Kumar declined to proceed with the departmental proceeding and (ii) the petitioner being Engineer-in-Chief must be aware that the first information report had been lodged against Mr. Manish Kumar, who had misappropriated huge amount and, thereby, the petitioner should have concluded the proceeding even by proceeding exparte.
Admittedly, the petitioner was never imputed with the charge that on account of declining to proceed with the departmental proceeding, punishment order could not be passed against Mr. Manish Kumar nor any order could be passed for recovery of the amount which had been misappropriated and, thereby, the petitioner caused loss to the government. If that charge was not there then any order passed in terms of the provision as contained in Section 43(b) of the Jharkhand Pension Rules, 2000 for withholding of 10% pension amount on permanent basis would be bad.
I may refer to the provision as contained in Section 43(b) of the Jharkhand Pension Rules, 2000, which reads as follows:-
43. (a) x x x x x x
(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 or grave misconduct; or to have caused pecuniary loss to Government by misconduct or neg-
ligence, during his service including service rendered on re-em- ployment after retirement.
Provided that -
(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or dur- ing 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 or- der 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-employ- ment, 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.
From its perusal, it does appear that that State may withhold pension or any part of it, permanently or for specified period, if pensioner is found guilty of grave misconduct in a departmental or judicial proceeding or to have caused pecuniary loss to the government by misconduct or negligence.
Here in the instant case, the charges upon which, an order has been passed in terms of Section 43 (b) of the Jharkhand Pension Rules, cannot be said to be a grave misconduct as simple charge was there against the petitioner that he did not proceed even exparte against Mr. Manish Kumar in a departmental proceeding. That charge may be imputed as misconduct, but may not be imputed as grave misconduct.
It be stated that the expression grave misconduct has not been defined, but on account of use of this expression, one has to assume that misconduct alleged against the petitioner has to be a more serious than the mere misconduct. In this regard, it be stated that the petitioner has not been found guilty of the charge of disobedience, rather has been found guilty of the charge of showing his indifference towards duty.
Further it be stated that the petitioner has never been alleged even to have caused pecuniary loss to the government. Imputation was also not there that the petitioner was responsible for loss to the government as on account of non proceeding with the departmental proceeding, inquiry report could not be submitted and, thereby, no order of punishment should be passed for recovery of the amount.
It be stated that if the authority intended to pass order in terms of Section 43(b) of the Jharkhand Pension Rules, 2000, the charge should have been there against the punishment, that on account of non proceeding with the departmental proceeding, inquiry report could not be submitted and thereby order of punishment could not be passed against Mr. Manish Kumar as a result of which, amount which he has been alleged to have misappropriated, could not be recovered but admittedly, no such charge is there and hence, the order which was passed in terms of Section 43(b) of the Jharkhand Pension Rules, 2000 is quite bad.
In this regard, I may refer to a decision rendered in the case of Chandreshwar Prasad Sinha (supra). In the said case allegation was there against the delinquent that under a deep conspiracy, delinquent had misused his post for making a case of emergent situation for purchase and thereby caused financial loss to the Government, but in a departmental proceeding there had not been any determination of the loss alleged to have caused to the State, still an order was passed in terms of Rule 43(b) of the Jharkhand Pension Rules, 2000, which was not found to be legal by the Hon'ble Supreme Court wherein in para-9 it has been observed as follows:
9. It is patent from a reading of the charge-sheet, the letter writ-
ten to the appellant enclosing the charge-sheet and the order impugned in the writ petition that action was taken against the appellant to recoup the loss or part of the loss that was alleged to have been sustained by the State by reason of the emergent indent. There has been no determination in departmental pro- ceedings under Rule 43 or in criminal proceedings that the emergent indent was put in for any ulterior or mala fide purpose and that such purpose, if any, was shared by the appellant. There has also been no determination of the loss alleged to have been suffered by the State. Indeed, in the show-cause no- tice, the letter enclosing it and the order thereon all that is stated in this behalf is that a loss of "several lakhs of rupees"
had been incurred. This would indicate that no attempt had been made departmentally to determine what the loss was and give to the appellant an opportunity of showing that it was, in fact, much less or not there at all, nor was it done thereafter. Here in the instant case, as has been stated above, even the charge was not there that on account of non proceeding with the matter relating to the departmental proceeding of Mr. Manish Kumar, punishment order could not be passed as result of which, no order could be passed for recovery of the amount, said to have been misappropriated by the delinquent Manish Kumar.
Accordingly, order dated 01.08.2009 as contained in Memo No.3797(S) (Annexure-11) is hereby, quashed.
In the result, this application stands allowed.
Consequently, the authority is directed to pay the arrears of the pensions which has accrued till date within a period of three months.
(R.R.Prasad, J.) Ravi/