Arun Chandra Das vs State Of Jharkhand
2021 Latest Caselaw 300 Jhar

     THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(S) No.1872 of 2015
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   Arun Chandra Das                      ..... Petitioner
                               Versus
      1. State of Jharkhand

2. Engineer in Chief, National Highway Division, Dhanbad

3. Executive Engineer, National Highway Division, Dhanbad ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Gaurav Abhishek, Advocate For the Respondents : Mr. Navneet Toppo, Advocate

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18/20.01.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying for a direction upon the respondent authorities to immediately and forthwith release the pension and other retiral benefits in favour of the present petitioner, which has been withheld by the respondent authorities in spite of the fact that there is no departmental proceeding pending against this petitioner.

3. Brief facts of the instant case as narrated in the instant writ application is that the petitioner was appointed as Stenographer in the National Higher Road Division, Dhanbad where he gave his joining on 01.05.1982 and finally retired from service on 31.01.2015. Vide letter dated 16.8.2014 the respondent authority directed the petitioner to submit the documents relating to his service for speedy disposal of his retiral benefits and finally vide letter dated 13.11.2014 name of the petitioner was recommended for release of final payment.

All of a sudden, a complaint was made against this petitioner with respect to his Caste and pursuant thereto; a show-cause was issued to him on 28.01.2015 to which he duly replied on 29.01.2015 itself before his retirement.

4. Mr. Gaurav Abhishek, learned counsel for the petitioner submits that the dispute relates to the Caste certificate of the petitioner and therefore, the Circle Officer is not the competent authority to look into the issue of Caste and decide the case of the petitioner as the competent

authority to look into and decide the issue as to whether the petitioner belongs to a particular caste or not and as to whether the caste certificate issued to the petitioner is correct or not can only be decided in terms of the judgment of the Hon'ble Apex Court rendered in the case of Kumari Madhuri Patil v. Addl. Commr., Tribal Development & Ors. reported in (1994) 6 SCC 241.

Learned counsel further submits that no departmental proceeding is pending against him; as such withholding of retiral benefits is illegal and the respondents may be directed to release the entire benefits forthwith.

5. Mr. Navneet Toppo, learned counsel for the respondent State submits that since the petitioner procured the job on the basis of a schedule-caste certificate and the post was also reserved for scheduled caste and upon a complaint made in this regard; the matter was enquired into and it was found that the petitioner does not belong to Scheduled Caste category and thereafter, Superintending Engineer, National Highways Circle, Dhanbad, instructed the Executive Engineer, National Highway Division, Dhanbad (Respondent No.3) vide letter No. 283(WE) dated 05.05.2015 to lodge F.I.R. and since the said criminal case is pending; the respondents are justified in withholding the pensionary benefits. He further submits that several notices were issued to the petitioner to the extent that why not a proper proceeding under Bihar Pension Rules should be initiated after his retirement. However, the petitioner did not bother to reply the same.

However, learned counsel for the respondent State is not able to demonstrate by any document that any departmental proceeding has been initiated against this petitioner; as such, the fact remains that till date no departmental proceeding has been initiated and/or pending against this petitioner.

6. In reply to the aforesaid contentions of the respondent State, learned counsel for the petitioner submits that now neither any proceeding under Rule 43 (b) of the Bihar Pension Rules can be initiated for the reason that the cause of action is prior to four years; nor any proceeding under Rule 139 of the Bihar Pension Rules can be initiated in the facts and circumstances of the case and also in the light of judgment passed in STATE OF BIHAR AND OTHERS versus MOHD. IDRIS ANSARI reported in 1995 Supp (3) SCC 56.

He further contented that in the case of STATE OF JHARKHAND & ORS. versus JITENDRA KUMAR SERIVASTAVA AND ANOTHER reported in (2013) 12 SCC 210, the Hon'ble Apex Court has held that withholding of pension in absence of any specific rule is non-est in the eye of law and rule 43 (b) specifically states that the State Government reserves its right to withhold full or part of pension if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct.

However, in the instant case neither any departmental proceeding is pending nor in the criminal case the petitioner has been convicted, as such withholding of pensionary benefit is mala-fide and just to harass the petitioner.

He further contended that since in the case of Madhuri Patil (Supra) it has been held by the Hon'ble Apex Court that it is only the "Caste Scrutiny Committee", which is competent to look into the caste of a particular person, therefore, the F.I.R. lodged against the petitioner and the enquiry report of the Circle Officer are non-est in the eye of law. As such, he submits that respondents be directed to pay all the pensionary and retiral benefits forthwith.

7. Having heard learned counsel for the parties and looking to the documents available on record and averments made in the respective affidavits, it appears that just before the retirement of this petitioner, a complaint was lodged and

the matter was sent for enquiry before the Circle Officer regarding the caste of the petitioner and on the basis of report of the Circle Officer; F.I.R. has been lodged and the criminal case is still pending. From records it further transpires that no departmental enquiry has been initiated against the petitioner either under Rule 43 (b) and/or Rule 139 of the Bihar Pension Rules. At this stage, it is clarified that the Circle Officer is not competent to decide the Caste of any person and it is only the Caste Scrutiny Committee which can decide about the caste of the delinquent. However, since the issue before this Court is regarding payment of retiral benefits, I do not want to adjudicate that issue.

Admittedly; no proceeding is pending against this petitioner and now four years has already lapsed and in the case of MOHD. IDRIS ANSARI (Supra) the Hon'ble Apex Court has held that the time limit which has been stipulated under Rule 43 (b) is also applicable in the case of Rule 139 of Bihar Pension Rules. For ready reference paragraph 9-10 of the said judgment is quoted herein below:

"9. So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired government servant or not in the circumstances contemplated by the rule. The first circumstance is that if the service of the government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of the government servant concerned while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revisional power has to be exercised in consonance with the principles of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first time. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture:

1. A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory.

2. Even if the service record of the officer concerned is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct of the officer concerned during his service tenure, the State Government can exercise revisional power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond that period.

10. So far as the second type of cases are concerned the proof of grave misconduct on the part of the government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 31-1-1993 and the show-cause notice was issued on the ground of grave misconduct on 27-9-1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore, to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27-9-1993 meaning thereby it should have been committed during the period from 26-9-1989 up to 31-1-1993 when the respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139(a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27-9- 1993 invoking powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that

service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show-cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13-12- 1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after the expiry of four years from 1986-87, as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the show-cause notice dated 27-9-1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed. There is no order as to costs."

Now it is a settled law that withholding of Pension in absence of any specific rule is impermissible in the eye of law and it has been held by the Hon'ble Apex Court in JITENDRA KUMAR SERIVASTAVA AND OTHERS (Supra) that retiral benefits are not bounty but property and the same cannot be taken away without following due process of law. Para No. 13 of the Judgment is quoted herein below:

" 13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending."

Further, in the case of Deokinandan Prasad Vs. State of Bihar & Others reported in 1971 2 SCC 330 at Paragraph No.33 the Hon'ble Apex Court has held as under:

"33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to property consider the claim of the petitioner for payment of pension according to law."

8. After going through the aforesaid judgments and settled proposition of law, this court is having no hesitation in directing the respondents to release the entire retiral benefits to the petitioner.

Consequently, the instant writ application is allowed and the respondents are directed to calculate the entire retiral benefits within a period of two months from the date of receipt of this order and entire amounts shall be paid to this petitioner within a further period of four weeks.

It goes without saying that within the aforesaid period the pension of the petitioner shall be fixed and necessary order be communicated to the petitioner.

9. With the aforesaid terms the instant application stands disposed of.

(Deepak Roshan, J.)

sm/ AFR