Jharkhand High Court
Arun Kumar Sinha vs State Of Jharkhand & Ors on 22 September, 2017
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 679 of 2009
Arun Kumar Sinha, son of Late Nageshwar Prasad, resident of Mohalla-
Sheopuri Near Kalimandir, P.O., P.S. & District-Hazaribagh .... Petitioner
Versus
1. State of Jharkhand.
2. Deputy Commissioner, Hazaribagh.
3. Treasury Officer, Hazaribagh.
4. Accountant General, Jharkhand, Ranchi ... Respondents
---
CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
---
For the Petitioner : Mr. Saurabh Shekhar, Advocate
For the Respondent Nos.1 to 3 : Mr. Arup Kr. Dey, J.C. to G.P.I
For the Respondent No. 4 : Mr. S. Shrivastava, Advocate
.......
CAV on 26/04/2017 Pronounced on 22/09/2017
Per Pramath Patnaik, J.
In the instant writ application, the petitioner has challenged the order
contained in Annexure-3 whereby the pension of the petitioner has been
withheld by the order of the Deputy Commissioner, Hazaribagh on the
ground that petitioner has been convicted in R.C. Case No.25(A)/96 in the
A.H.D Scam under the provision of Rule 46 of Bihar Pension Rule and
prayer has been made for fixation & finalization of pension and for release
the same forthwith with effect from the date of superannuation i.e.
31.01.2007alongwith interest and also gratuity. The petitioner has further prayed for direction upon the respondents to forthwith release the arrears of difference of salary for the period of suspension.
2. The brief facts as disclosed in the writ petition is that initially the petitioner joined as Accountant in the year 1972 and continued as such till 2 September, 2005. While continuing as Accountant, the petitioner was placed under suspension on the ground of his judicial custody with effect from 09.02.1996 for his alleged involvements in Fodder Scam and the petitioner was put under suspension with effect from 07.02.1996. Thereafter, the said order of suspension was revoked vide order passed in C.W.J.C No.2348 of 1998(R) and the order of revocation of suspension was passed on 16.09.1999 and the period of suspension i.e. from 07.02.1996 till 16.09.1999 has been treated as period of regular services. A departmental proceeding was initiated vide letter dated 09.12.1999 and again the petitioner was placed under suspension vide order dated 30.03.2000 on the ground of judicial custody and the said departmental proceeding was closed vide memo No.191 dated 31.01.2005 issued by the respondent no.2 as per Annexure-1 to the writ petition. It has been averred in the writ application that after revocation of suspension the petitioner started discharging his duties. In view of this conviction in the Fodder Scam case, the petitioner has been dismissed from services with effect from 21.09.2005 vide office order dated 31.03.2006. The normal date of superannuation of the petitioner was on 31.01.2007 and after due date of retirement the petitioner submitted representations for grant of pensionary benefit vide representation dated 30.04.2007 as per Annexure-2 to the writ petition and on the receipt of the said representations the respondents vide order dated 12.11.2007 rejected the representation of the petitioner for grant of pensionary benefit under Rule 46 of the Bihar Pension Rule which is under challenge in this writ application. Being aggrieved by the impugned order vide Annexure-3, the petitioner left with no other alternative, efficacious and speedy remedy has knocked the doors of this Court under Article 226 of the Constitution of India for redressal of his grievance. 3
3. Learned counsel for the petitioner has submitted with vehemence that the conviction in a criminal case will not ipso-facto empower the respondents to withhold the pensionary benefits since the pension is not bounty or gratis and same can only be withheld under the authority of law by initiating appropriate proceeding under Pension Rule. Learned counsel for the petitioner further submits that the action of the respondents in withholding the pension amounts to putting petitioner to double jeopardy which is in the teeth of Article 20(2) of the Constitution of India. Learned counsel for the petitioner further submits that the action of the respondents refusing for grant of pensionary benefits is certainly not on account of any misconduct or in contemplation of departmental proceeding but for the conviction in criminal case. Therefore, the action of respondents being arbitrary and unjust violates of Article 14 of the Constitution of India.
4. The counter-affidavit has been filed by the respondents controverting the averments made in the writ application. In the counter-affidavit, it has been submitted that the petitioner is a convicted in Fodder Scam R.C. Case No.25(A)/96 and the petitioner has been sentenced to undergo imprisonment for six years and fine of Rs.30,000/- and as per the provision of Rule 46 of Jharkhand Pension Rules which envisages if a Public Servant is dismissed for misconduct, he or she will not be allowed for grant of pensionary benefits and under Rule 27 of Jharkhand Pension Rule, the pension includes gratuity. The case of the petitioner was duly considered after conviction and sentence and by order dated 30.03.2006 passed by the Deputy Commissioner, Hazaribagh issued memo No.559 dated 31.03.2006 the petitioner has been awarded punishment of dismissal on the basis of conviction in a criminal case with effect from 21.09.2003 the date on which he was convicted as evident from 4 Annexure-A to the counter-affidavit. It has further been submitted that the question of payment of pension has also been considered by the competent authority and in exercise of power conferred under Rule 46 of Jharkhand Pension Rule, the order was passed debarring the petitioner from pension and it was also found that the petitioner is not entitled for compassionate pension, accordingly letter no.732 dated 12.11.2007 has been issued as per Annexure- B to the counter-affidavit. Therefore, the order dated 12.11.2007 has been passed on the basis of order of dismissal dated 31.03.2006 which has never been challenged and it has attained finality, therefore there is no merit in the claim of the petitioner and the writ petition is fit to be dismissed. It has further been submitted that the pendency of an appeal does not remove the stigma cast upon the petitioner on account of conviction, unless the conviction is kept in abeyance by the appellate authority.
5. Learned counsel for the State has reiterated the submissions made in the counter-affidavit and has assiduously submitted that Rule 43 of the Pension Rule cannot be invoked since Rule 46 of the Pension Rule is clear on this point. In this context, learned counsel for the State has referred to Civil Appeal No.3131 of 2011 (arising out of S.L.P.(C) No.28448 of 2008) in the case of Mahendra Prasad Singh @ Mahendra Singh Vs. State of Bihar & Ors.
6. A rejoinder on behalf of the petitioner has been filed wherein it has been submitted that the grant of pension is not a bounty. The pension of the petitioner has been withheld under the provisions of Rule 46 of the Bihar Pension Rule without initiating any proceeding under Rule 43(b) of the Bihar Pension Rule. Admittedly, no such proceeding has been initiated against the petitioner under the aforesaid rule. Further there is no provision or rule that 5 pension will be withheld in case of dismissal of a Government employee and before withholding pension, the respondents have to act in accordance with the Pension Rule.
7. After hearing learned counsel for the respective parties at length and on perusal of the documents on records, I am of the considered view that the petitioner has not been able to make out a case for interference due to the following facts and reasons stated hereinbelow:-
(I) Before adverting to the seminal issues which hinges on the point as to whether dismissal order passed in pursuance to a conviction in a criminal case will ipso-facto debar an employee for grant of pensionary benefits.
Before adverting to the aforesaid issue, it would be apposite to refer Rule 46 of the Bihar Pension Rule which reads as under:-
"Rule 46- No pension may be granted to a Government servant dismissed or removed, for misconduct; insolvency or inefficiency; but to Government servant so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration; provided that the allowance granted to any Government servant, shall not exceed two third of the pension which would have been admissible to him if he had retired on medical certificate."
It would be also relevant to refer Rules 43(a) and 43(b) of the Pension Rules.
(II) Admittedly, the impugned order of dismissal from services dated 30.03.2006 has not been challenged by the petitioner which has been passed on the basis of conviction in Fodder Scam case. Therefore, because of his misconduct he has been dismissed from services and in view of Rule 46 of the Pension Rule, the petitioner is not entitled to pension. In other words, the dismissal order on account of conviction in Fodder Scam case was a sequel to 6 invoke Rule 46 of Pension to debar the petitioner to avail of benefits of post retiral benefits.
8. In view of the aforesaid discussion made hereinabove, the impugned order dated 12.11.2007 as contained in Annexure-3 to the writ petition does not warrant any interference by this Court and the writ petition is dismissed being devoid of any merit. However, dismissal of the writ petition will not debar the petitioner from staking claim of payment of any arrear of salary and the respondents are directed to pay the admissible arrear of salary within a period of eight weeks from the date of receipt of a copy of this order.
(Pramath Patnaik, J.) RKM N.A.F.R