The State Of Jharkhand Through The ... vs Thakur Jagat Prakash Singh
2023 Latest Caselaw 3046 Jhar

                                1                        L.P.A. No. 111 of 2022



       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          L.P.A. No. 111 of 2022
                                 ----------
1. The State of Jharkhand through the Chief Secretary, Government of
   Jharkhand, Project Bhavan, Ranchi, P.O Project Bhawan, PS-
   Jagganathpur, District-Ranchi.

2. The Principal Secretary, Water Resources Department, Government of
   Jharkhand, Nepal House, Doranda, PO & PS Doranda, District-Ranchi.

3. The Principal Secretary, Department of Rural Development, Government
   of Jharkhand, Nepal House, Doranda, PO & PS- Doranda, District-
   Ranchi.
4. The Engineer-in-Chief, Special Division, Government of Jharkhand,
   Project Bhawan, Ranchi PO-Project Bhawan, PS Jagganathpur, District-
   Ranchi.

5. The Engineer-in-chief, Water Resources Department (Design Section),
   Government of Jharkhand, Dhurwa, P.O & PS Dhurwa, District-Ranchi.
6. The Superintending Engineer, Special Division, Water Resources
   Department, Government of Jharkhand, Jamtara, PO, PS & District-
   Jamtara.

7. The Executive Engineer, Special Division, Water Resources Department,
   Government of Jharkhand, Jamtara, PO, PS & district- Jamtara.

8. The Executive Engineer, Minor Irrigation Division, Government of
   Jharkhand, Jamtara, PO, PS & District- Jamtara.

9. The Deputy Commissioner, Jamtara, PO, PS & District-Jamtara
                                             ... ... Appellants/Respondents
                                 Versus
1. Thakur Jagat Prakash Singh, son of Late Thakur Ram Parikshan Singh,
   resident of village-Maksoodpur Kararia, P.O. MaksoodpurKararia, P.S.
   Sheohar, District-Sheohar.
                                         ... ... Respondent/Writ Petitioner

2. The Accountant General, Jharkhand, PO & PS- Doranda, District-Ranchi.
                                           ... ... Respondents/Respondents
                                    -------
   CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                   HON'BLE MR. JUSTICE NAVNEET KUMAR
                                    -------
   For the Appellants  : Mr. Anish Kumar Mishra, AC to Sr. SC-I
                          ----------------------------
ORAL JUDGMENT
09/Dated: 21st August, 2023
Per Sujit Narayan Prasad, J.

1. The instant appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 18.03.2021 passed by the learned Single Judge of this Court in W.P.(S) No. 6332 of 2013, whereby and whereunder, the order dated 14.09.2016 as contained in Memo No. 4476, by which deduction of 3% of the writ petitioner's pension for three years in exercise of power conferred under rule 43(b) of the Jharkhand Pension Rules, has been quashed and set aside.

2. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated herein, read as under:

The writ petitioner joined as Junior Engineer, Water Resources Department, Patna on 07.02.1979 and has superannuated from the post of Junior Engineer, Special Division, Jamtara on 31.07.2009.

The writ petitioner, after his superannuation from service, received a letter dated 01.04.2009 along with Prapatra Ka dated 30.03.2009 asking the writ petitioner why a disciplinary inquiry be not initiated under Civil Service (Classification, Control and Appeal) Rules, 1930 along with charge for a period of 2003-04 and 2004-05 regarding non-availability of measurement book before the Flying Squad as well as the excess payment of Rs.32,551.44.

The writ petitioner filed show cause on 22.02.2013 stating in detail that the work was already completed on 15.06.2003.

Thereafter, the respondent authorities have initiated a departmental proceeding vide letter dated 01.04.2009 under Section 43(b) of the Jharkhand Pension Rules.

It is the case of the writ petitioner that the proceeding initiated against the writ petitioner relates to the period of 2003-04 and 2004-05 but the said proceeding cannot be initiated after superannuation of the writ petitioner under Section 43(b) of the Pension Rules as the event relates to a period more than four years ago and that cannot be initiated in view of the provision of Rule 43(b)(a)(ii) of the Pension Rules.

The writ petitioner has also filed representation for grant of pension before the respondent-authorities but the respondent-authorities have not paid any heed to the same.

Thereafter, vide order as contained in Memo No. 4476 dated 14.09.2016 issued by the Under Secretary, Department of Water Resources Department, Government of Jharkhand, punishment has been imposed upon the writ petitioner by deducting 3% from his pension for three years under Rule 43(b) of the Pension Rules for the charges which were framed against the writ petitioner after more than four years of the incident which has been alleged to be taken place in the years 2003-04 and 2004-05.

Being aggrieved with the same, the writ petitioner approached this Court by filing writ petition being W.P.(S) No. 6332 of 2013 and the learned Single Judge, on consideration of the entire aspect of the matter, has quashed the impugned order against which the present appeal has been preferred by the State.

3. It appears from the factual aspect as referred above based upon the pleading that while the writ petitioner was working as Junior Engineer had superannuated from service on attaining the normal age of superannuation w.e.f. 31.07.2009.

It further appears from the pleading that a fact-finding committee was constituted in order to surface irregularity committed by the writ petitioner in course of his service. The authority based upon the said irregularity has asked the writ petitioner to file response by assigning therein as to why the two charges, i.e., no measurement with respect to the construction in connection with Daxinidih pond scheme and second charge was that there was irregular payment of Rs.32,551.44.

The writ petitioner was asked to reply, as such, he has given reply as would appear from the reply dated 22.02.2013 as contained under Annexure-5. The authority, thereafter, issued an order by informing the writ petitioner for appointment of enquiry officer as also appended with memorandum of charge.

The respondent-State of Jharkhand has come out with the impugned order dated 14.09.2016 by which the decision was taken to withhold 3% of the pension for three years under rule 43(b) of the Pension Rules.

The writ petitioner, being aggrieved with the said order, challenged the same by filing writ petition being W.P.(S) No. 6332 of 2013 on the ground that there cannot be any direction for withholding part of pension to the extent of 3% for three years in exercise of power conferred under Rule 43(b) of the Pension Rules since the writ petitioner had retired on 31.07.2009 and the departmental proceeding was initiated on 29.10.2012 for the occurrence which took place in the years 2003-04 and 2004-05.

The writ petitioner has taken the ground before the learned writ court by referring to the explanation of rule 43(b) wherein four years' limitation is provided for the purpose of initiation of proceeding under Rule 43(b). The learned Single Judge on consideration of the aforesaid statutory command has quashed the impugned order against which the present appeal has been preferred by the State.

4. Mr. Anish Kumar Mishra, learned AC to Sr. SC-I has submitted by referring to Annexure-3 dated 30.03.2009 which according to him is the initiation of the departmental proceeding while the writ petitioner was in service since he retired on 31.07.2009, therefore, the argument has been advanced while assailing the impugned order that it is not a case where the period of four years limitation will come into play. Therefore, the said proceeding initiated on 30.03.2009 will be deemed to be converted into the provision of Rule 43(b) and in that view of the matter the decision so taken cannot be said to suffer from error.

5. According to the learned counsel for the appellant, the learned Single Judge without appreciating the aforesaid fact since has interfered with the impugned order, therefore, the same suffers from error and hence, is not sustainable in the eyes of law.

6. This Court has heard the learned counsel for the appellants at this stage, perused the documents available on record as also the finding recorded by the learned Single Judge.

7. The factual aspect which is not in dispute in this case is that the writ petitioner had retired from service on 31.07.2009 while working as Junior Engineer. The fact-finding committee was constituted for the purpose of surfacing irregularity committed by the writ petitioner vide the decision of the State Government dated 30.03.2009 issued under the signature of Additional Secretary to the Government, Water Resources Department, Government of Jharkhand.

8. It appears from the aforesaid decision communicated to the writ petitioner wherein it has been stated that based upon the finding of the department Flying Squad, the explanation so sought for as to why a departmental proceeding be not initiated in terms of Civil Services (Classification, Control Appeal) Rules, 1930. The aforesaid communication was with the alleged irregularity as would appear from Annexure-4 appended to the paperbook. It further appears that the writ petitioner had responded thereto by reply dated 22.02.2013. The decision to initiate a departmental proceeding was not taken during the service period of the writ petitioner rather such decision was taken while the writ petitioner had retired on attaining the age of superannuation on 31.07.2009.

9. The authorities have come out with impugned decision for withholding 3% pension for three years in exercise of power conferred under Rule 43(b) of the Pension Rules.

10. The said order has been interfered with on the ground of the explanation contained in Rule 43(b) by accepting the ground so agitated by the writ petitioner that there cannot be any decision under Rule 43(b) if the occurrence took place beyond the period of four years from the date of occurrence and the date of initiation of such proceeding. The said order is under challenge.

11. This Court, before appreciating the argument of the learned counsel, deems it fit and proper to refer the provision of Rule 43(b) which reads as under:

"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 petitioner 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 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 reemployment, 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."

12. It is evident from the provision of Rule 43(b) of the Pension Rules that it confers power upon the State Government to withhold whole or part of the pension in case of finding of misconduct either under the departmental of judicial proceeding if the same caused pecuniary loss to the Government, as such, applicability of the provision depends upon certain conditions as contained under explanation. One of the explanation is that the decision so taken has to be taken under the provision of Rule 43(b) of the Pension Rules is not to be initiated for the occurrence which took place beyond the period of four years from the date of its institution.

13. Herein, the thrust of the argument of the State appellant that the departmental proceeding was initiated while the writ petitioner was in service and in order to substantiate the aforesaid argument, he has relied upon communication dated 30.03.2009 as appended as Annexure-3 to the paperbook.

14. Such aspect of the matter has been considered by the Patna High court in Shambhu Saran vs. The State of Bihar and Ors., (2000) 1 PLJR 665 wherein the law has been laid down that in such a situation the proceeding initiated under the Classification, Control and Appeal Rules will deemed to have been converted under Rule 43(b) of the Pension Rule. But, it no action has been taken and if due to action of the concerned public servant whose complicity has been found after retirement the recourse has been made available under the proviso to initiate a proceeding under Rule 43(b) but

subject to condition of applicability of limitation of four years from the date of occurrence to the date of institution.

15. This Court is now examining the argument advanced on behalf of the appellant as to whether the communication dated 30.03.2009 as under Annexure-3 can be said to be initiation of departmental proceeding in the eyes of law. Further, what would be the meaning of initiation of departmental proceeding within the meaning of Rule 43(b) of the Pension Rules.

16. Rule 43(b) stipulates that the departmental proceeding will be said to be initiated the day when the memorandum of charge will be served upon the concerned delinquent employee. While the judicial proceeding will be said to be initiated the day the competent court took cognizance.

17. Here, in the given facts and circumstances of the case, the argument of the State appellant is that communication dated 30.03.2009 is construed initiation of departmental proceeding since the same was appended with memorandum of charge.

18. This Court has considered the content of the aforesaid communication dated 30.03.2009 wherefrom it is evident that the same is a show cause said to first reply on the basis of the fact finding before taking a decision to initiate a departmental proceeding since it was referred that please explain that as to why for the irregularity committed a departmental proceeding be not initiated under the provision of Rules, 1930. It has also been referred therein to furnish reply within the fortnight. The said communication was appended with the charge. The writ petitioner has furnished his reply wherefrom it is evident that the writ petitioner has requested that he be exonerated from the charges. The Government has taken decision by way of resolution issued on 08.11.2012, available at page-93 of the paperbook.

19. This Court on consideration of the content available therein has found that the same is based upon the satisfaction of the Governor of the State as to why a departmental proceeding be not initiated so as to make deduction in exercise of power conferred under Rule 43(b). The aforesaid resolution, therefore, according to our considered view will be considered to be initiation of departmental proceeding since was taken in the name of

Governor of the State wherein the reference of enquiry officer is also made for the purpose of conducting enquiry.

20. It is, thus, evident by making comparison of the communication dated 30.03.2009 which is under the signature of Under Secretary to the Government addressed to the writ petitioner asking explanation for the purpose as to why a departmental proceeding be not initiated under the Rules, 1930 while the communication dated 08.11.2012 stipulates which was issued under the name of Governor of the State that why a proceeding be not initiated under the exercise of power conferred under rule 43(b). But, the question herein is if the contention of the appellant will be accepted by considering the Annexure-3 to be the initiation of departmental proceeding and if in the meanwhile, according to the State appellant, the writ petitioner has retired from service then where is the question of initiation of departmental proceeding under Rule 43(b) as is being reflected in the resolution dated 08.11.2012 rather the requirement would be to make a communication to the concerned that the proceeding which was initiated under the conduct rules is deemed to be converted into the proceeding of Rule 43(b) by giving therein the proposed punishment as to why the pension whole or part be not deducted.

But that is not therein in the resolution dated 08.11.2012, therefore, for two counts the communication dated 30.03.2009 cannot be considered to be initiation of departmental proceeding, i.e., the content itself suggest and clarify that the same is not initiation of departmental proceeding since the explanation has been sought for as to why a departmental proceeding be not initiated. If such stipulation is there, it itself clarifies that if the explanation will be found to be satisfactory then the proceeding so proposed to be initiated will be closed. However, if the reply will not be found to be satisfactory, then only the question of initiation of departmental proceeding will be there. That is the case herein.

The writ petitioner has submitted his reply in terms of the communication dated 30.03.2009. Thereafter, the decision was taken by way of resolution dated 08.11.2012 but in the meanwhile, the writ petitioner retired from service on 31.07.2009, as such, the proceeding will be said to be initiated only on issuance of resolution dated 08.11.2012, therefore, the

implication of the explanation under Rule 43(b) will have bearing in the decision so taken by the authority.

21. Admittedly, the occurrence took place in the year 2003-04 and 2004-05. The said occurrence admittedly is beyond the period of four years from the date of initiation of the proceeding said to have been initiated under rule 43(b) of the Pension Rules. Therefore, the proceeding so initiated by resolution dated 29.10.2012 in the facts and circumstances of the case will be said to be not permissible in the eyes of law. In the similar context, it requires to refer herein the judgment rendered by the Hon'ble Apex Court in State of Bihar and Ors. vs. Mohd. Idris Ansari, 1995(2) PLJR (SC) 51 wherein the implication of the explanation under Rule 43(b), i.e., initiation of proceeding under Rule 43(b) beyond the period of four years was the subject matter and by way of giving example the same has been demonstrate therein. For ready reference, the relevant paragraph is being referred as under:

"6. Having given our anxious considerations to these rival contentions, we find that the decision of the High Court on the facts of the present case is unexceptionable. The earlier notice dated 17-7-1993 by which fresh departmental proceedings were sought to be initiated was rightly quashed by the High Court as it was based on the alleged misconduct of the respondent during 1986-87 which was more than four years prior to the issue of the said notice. Such a notice seeking to initiate fresh departmental proceedings after the retirement of the respondent, was clearly hit by the proviso to sub-rule (b) of Rule 43 of the Rules. Rule 43(b) reads as under:

"(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 proceedings 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 accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;"

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

L.P.A. No. 111 of 2022

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."

22. This Court, on the basis of the discussion made hereinabove and coming to the order passed by the learned Single Judge, is of the view that the impugned order based upon the parameter fixed under Rule 43(b) of the Pension Rules and discarding the ground of State and accepting the communication dated 08.11.2012 to be the date of initiation of departmental proceeding.

23. This Court, therefore, is of the view that while considering the same, the learned Single Judge has not committed any error.

24. Accordingly, the instant appeal fails and stands dismissed.

25. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) Saurabh/-

A.F.R.