Jharkhand High Court
Jai Kishore Choudhary vs The State Of Jharkhand Through The ... on 17 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 W.P. (S) No.5389 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5389 of 2021
Jai Kishore Choudhary, aged about 65 years, son of late Ram
Padarath Choudhary, resident of Village & P.O.-Barri Behta, P.S.-
Pupri, Dist.-Sitamarhi, Bihar
.... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Water Resources
Department, Government of Jharkhand, Ranchi at Nepal House,
P.O. & P.S.-Doranda, Dist.-Ranchi
2. The Under Secretary, Water Resources Department, Government
of Jharkhand, Ranchi at Nepal House, P.O. & P.S.-Doranda,
Dist.-Ranchi
3. The State of Bihar through the Secretary, Minor Water Resources
Department, Boring Road, Patna, P.O., P.S. & Dist.-Patna, Bihar
4. The Accountant General, Jharkhand, P.O. & P.S.-Doranda, Dist.-
Ranchi
.... Respondents
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Rahul Kumar, Advocate
For the Respondents : Mr. Ashutosh Anand, AAG III
: Mr. Sharad Kaushal, AC to AAG III
: Mr. Rohit Sinha, Advocate
: Mr. Diwakar Upadhyay, Advocate
.....
By the Court:-
1. Heard the parties.
2. This Writ Petition has been filed under Article 226 of the
Constitution of India with a prayer for issuance of writ(s), order(s)
or direction(s) in the nature of certiorari for quashing the letter
Order contained in Memo No.2374 dated 19.06.2021 (Annexure-6)
issued under the signature of respondent no.2 whereby and where
under, the review petition submitted by the petitioner as against
the order dated 10.12.2020 in relation to deduction of 5% pension
for 1 year and payment of subsistence allowance during the
period of suspension has been rejected. Further, prayer has also
been made for issuance of writ(s), order(s) or direction(s) for
quashing the order contained in Memo No.6320 dated 10.12.2020,
a copy of which has been kept at Annexure-5, issued under the
signature of respondent no.2 whereby and where under, in a
departmental proceeding initiated against the petitioner by the
State of Bihar by serving a Memo of Charge dated 08.09.1997,
disagreement to the finding of the Enquiry Officer has been
recorded by the State of Bihar vide letter contained in Memo
No.5739 dated 29.11.2016 and the same has been converted into a
proceeding under Section 43 (b) of the Jharkhand Pension Rules
by the State of Jharkhand and a decision has been taken to impose
deduction of 5% of pension for one year and for payment of
subsistence allowance only during the period of suspension. The
third prayer has also been made to issue writ(s), order(s) or
direction(s) and declaration to the extent that the second show
cause issued to the petitioner vide letter contained in Memo
No.5739 dated 29.11.2016, a copy of which has been kept at
Annexure-2, issued by the respondent-Bihar is without authority
and jurisdiction in view of the fact that under the Bihar
Reorganization Act, the petitioner had been allocated the cadre of
State of Jharkhand vide Notification dated 29.07.2004 hence, the
Bihar authorities were without jurisdiction to continue with the
departmental proceeding and consequential relief.
3. Learned counsel for the petitioner submits that though several
prayers has been made, the petitioner confines his prayer to the
portion of the order dated 10.12.2020 in relation to the deduction
of 5% of pension for one year.
4. The brief fact of the case is that the petitioner was appointed on
the post of Assistant Engineer on 25.11.1979. It was alleged that
when the petitioner was posted as Assistant Engineer, Tube Well
Construction Division, Gopalganj, there had been an advance of
Rs.13,100/- and Rs.39,600/- lying in the name of the petitioner.
The petitioner in contemplation of the departmental proceeding
was put under suspension vide notification contained in Memo
No. 924 dated 08.09.1997. The proceeding was initiated. The
petitioner filed C.W.J.C. No. 5907 of 1999. The suspension of the
petitioner was revoked. The enquiry officer found the charges
levelled against the petitioner as not proved and the enquiry
report was not served upon the petitioner. In the departmental
proceeding, the petitioner vide notification dated 08.10.2001 was
imposed punishment of stoppage of two increment with
cumulative effect and also for payment of subsistence allowance
during the suspension period. Since no enquiry report or second
show cause notice was issued to the petitioner, the petitioner
moved before the Hon'ble Patna High Court in C.W.J.C. No. 11523
of 2004. In terms of Bihar Reorganization Act, the services of the
petitioner was allocated to the State of Jharkhand vide notification
dated 29.07.2004 whereupon the petitioner continued in the State
of Jharkhand. The Hon'ble Patna High Court vide order dated
11.03.2011 in C.W.J.C. No.11523 of 2004 quashed the order of
punishment dated 07.03.2003 with a further direction upon the
respondent to provide an enquiry report to this writ petitioner
and that departmental proceeding will start from the stage of
furnishing enquiry report and must conclude within six months of
its initiation.
5. It is asserted by the petitioner that after the petitioner was
allocated the cadre of State of Jharkhand in the year 2004, there
had not been any authority or jurisdiction in the State of Bihar to
continue with the proceeding rather the State of Bihar ought to
have transmitted the proceeding to the State of Jharkhand. In this
respect, learned counsel for the petitioner relied upon the
judgment of a coordinate Bench of this Court in the case of Umesh
Kumar Singh vs. The State of Jharkhand & Ors. reported in 2006
SCC OnLine Jhar 823, paragraph nos.5, 8 and 9 of which reads as
under:-
"5. The short question involved in this Writ Petition
is whether after the final cadre allocation of the
Petitioner to the State of Jharkhand on 26th April, 2004,
the State of Bihar had jurisdiction and authority to
continue with the departmental proceedings against him.
8. A similar issue came up before this Court and a
Division Bench of this Court in the case of State of Bihar
v. Arvind Vijay Bilung reported in 2002 (1) J.L.J.R. 697
observed as under:
12. In such a situation and in such a
background, where the State is carved out of an
existing State, the cooperation between the two
States becomes meaningful, If, therefore, the State
of Bihar has, in its possession, any material against
a Government servant who, by virtue of Section 74
of the Act, is now in the service of the State of
Jharkhand and if the State of Bihar thinks that such
material warrants initiation of an action against
such a person, it is open to the State of Bihar to
forward such material, to the State of Jharkhand for
such action as it considered appropriate by the
State of Jharkhand. Let it be very clearly
understood, that only role of the erstwhile State in
such a situation is merely to pass on the
information or the relevant material to the State of
Jharkhand and leaving the rest for the State of
Jharkhand to do. Similar would be the case for the
State of Jharkhand if an employee is in a place in
Bihar and if the State of Jharkhand has any
material in its possession which may be required to
be forwarded to the State of Bihar for appropriate
action against such an employee.
9. From the observations of the Division Bench of
this Court in the above case also, it is evident that State
of Bihar had no authority to proceed against the
Petitioner and not even with the consent and
concurrence of the State of Jharkhand: Therefore, all
departmental proceedings initiated against the Petitioner
including the enquiry Report dated 19th May, 2005 are
void ab initio. On the basis of the aforesaid Enquiry
Report, which is hereby held to be illegal, the State of
Jharkhand has issued final show cause notice dated 19th
October, 2005 to the Petitioner, which is also impugned
in this Writ Petition. During the pendency of this writ
application, the final order of punishment, vide Memo
No. 26/05-4155 dated 25th August, 2006 imposing
punishments of recovery of Rs. 1,52,106.20, stoppage of
two increments has been passed. Show cause notice and
final order are also vitiated having been passed on the
basis of illegal and invalid enquiry." (Emphasis
supplied)
6. It is also submitted by the learned counsel for the petitioner by
relying upon the judgment of a coordinate Bench of this Court in
the case of Yamuna Ram vs. State of Jharkhand & Ors. reported
in 2002 1 JLJR 407, paragraph no.5 of which reads as under:-
"5. Admittedly even within six months time allowed by this
Court the departmental proceeding was not concluded and the
petitioner was forced to file second writ application. In my
opinion, therefore, when the impugned order of punishment
was passed no departmental proceeding was pending in the
eye of law, in view of the order passed in CWJC No.
1678/2001, dated 26.4.2001. The impugned order, therefore,
cannot be sustained in law."
that after six months of the resumption of departmental
proceeding in the State of Bihar assuming for the sake of
argument, the State of Bihar was having a jurisdiction to continue
with the departmental proceeding even though the petitioner
ceased to be an employee of the State of Bihar, consequent upon
allocation and joining of him in the State of Jharkhand, still as the
same was not concluded within six months so, no order of
punishment could have been imposed by the Bihar Government
on the departmental enquiry beyond the period of six months
from its initiation in view of the said order dated 11.03.2011 in
C.W.J.C. No. 11523 of 2004.
7. It is next submitted by the learned counsel for the petitioner that
the petitioner attained the age of superannuation w.e.f. 31.10.2016
and applied for his pension papers. After superannuation of the
petitioner, the State of Bihar issued show cause notice to the
petitioner on 29.11.2016 expressing disagreement with the enquiry
report. The petitioner asserted that after allocation of the cadre of
the petitioner to the State of Jharkhand and consequent upon the
petitioner joining therein in the year 2004, the State of Bihar
became functus officio to proceed with the enquiry report
submitted in the matter of the petitioner. Hence, it has no
jurisdiction to disagree with the enquiry report. The petitioner
was paid pension and gratuity vide letter dated 09.11.2017 issued
under the signature of the Assistant Accountant General,
Jharkhand. The respondents thereafter acting upon the
disagreement recorded by the State of Bihar took a decision to
convert the proceeding under Section 43 (b) of the Pension Rules
vide letter dated 18.07.2019. The petitioner replied to the show
cause but second show cause notice was issued to the petitioner
vide letter dated 22.05.2020. The petitioner replied to the said
second show cause on 16.07.2020 explaining the entire
circumstances.
8. It is further submitted by the learned counsel for the petitioner
that as admittedly the disciplinary proceeding was in respect of an
event which took place in the year 1990-91 so the decision of the
respondents in converting the same to a proceeding under Section
43 (b) of the Pension Rules is hit by limitation prescribed by the
proviso (ii) of Rule 43 (b) of Pension Rules; which provides that if
the petitioner is found inter alia in departmental proceeding to
have been guilty of grave misconduct or to have caused pecuniary
loss to the Government by misconduct or negligence during his
service in respect of an event which took place not more than four
years before the institution of such proceeding. Hence, it is
submitted that the conversion of the proceeding under Rule 43 (b)
of the Pension Rules is not sustainable in law. It is further
contended by the learned counsel for the petitioner that in terms
of Rule 139 (c) of the Pension Rules, once a pension of the
petitioner has been approved, the same cannot be reduced after
more than three years and as in this case the pension was
approved on 09.11.2017 and its reduction of 5% was made on
10.12.2020 i.e. beyond the period of three years is also not
sustainable in law. It is also submitted by the learned counsel for
the petitioner that against the said order dated 10.12.2020 by
which petitioner has been imposed the punishment of
withholding 5% of pension for one year and payment of
subsistence allowance, the petitioner preferred a review which has
been rejected vide order contained in Memo No. 2374 dated
09.06.2021 was illegal. Hence, it is submitted that the prayer as
made in the writ petition be allowed.
9. Learned counsel for the respondent nos.1 and 2 submits that the
Water Resource Department, Government of Jharkhand vide
Departmental Order No.2409 dated 09.05.2019 converted the
departmental proceeding against the petitioner under Rule 43 (b)
of the Pension Rules as the petitioner has already retired on
31.10.2016 and issued show cause to the petitioner vide letter
dated 18.07.2019. It is pertinent to mention here that page no.42 of
the counter affidavit filed by the respondent nos.1 and 2 shows
that the petitioner has been intimated that the enquiry report of
the petitioner was supplied to the petitioner vide letter dated
29.11.2016. Learned counsel for the respondent nos.1 and 2
submits that there is no illegality in the punishment order
imposed by the respondents. Hence, it is submitted that this writ
petition being without any merit be dismissed.
10. Learned counsel for the respondent no.3 submits that the
respondent no.3 was not knowing the latest posting of the
petitioner in the year 2011 hence, the second show cause was sent
to three places i.e. Tarapur- the last place of posting of the
petitioner, Sitamarhi- the permanent address of the petitioner and
Water Resource Department, Bihar, the controlling department of
the petitioner. The letter sent to Tarapur and Sitamarhi returned
and thus the second show cause notice could not be served upon
the petitioner. The Water Resource Department, Bihar vide its
letter dated 25.09.2017 informed that the petitioner has been
allocated Jharkhand Cadre in the year 2004 and after the complete
dossier along with the copy of the Judgment passed by the
Hon'ble Patna High Court was sent to the Water Resources
Department, Jharkhand vide letter dated 16.03.2018. Therefore, no
illegality has been committed by the respondent no.3. Hence, it is
submitted that this writ petition being without any merit be
dismissed.
11. Having heard the rival submissions made at the Bar and after
going through the materials available in the record, the question
that arises for consideration is:
"Whether respondent no.3, in view of the specific direction of the
Hon'ble Patna High Court in its order dated 11.03.2011 in C.W.J.C.
No. 11523 of 2004, to the effect that the respondent authorities will
be cautious and proper intimation be given to the petitioner
regarding the further proceeding, could have continued with the
departmental proceeding without admittedly giving any notice to
the petitioner after the said order dated 11.03.2011 passed by the
Hon'ble Patna High Court?"
12. The admitted fact remains that after 11.03.2011 the petitioner
was not given any notice of the further proceeding. The
respondent no.3 admittedly did not have any jurisdiction to take
any disciplinary action against the petitioner consequent upon the
petitioner being allocated Jharkhand Cadre in the year 2004. The
conversion of the departmental proceeding against the petitioner
under Rule 43 (b) of the Pension Rules was hit by limitation
prescribed under Rule 2 proviso (a) (ii). If the contention of the
respondent nos.1 and 2 is considered that it is the continuation of
the departmental proceeding which was initiated by the State of
Bihar still the order dated 11.03.2011 in C.W.J.C. No. 11523 of 2004
is squarely applicable to the respondent nos.1 and 2 also and they
have admittedly stepped into the shoes of the respondent no.3 so
far as the departmental proceeding against the petitioner is
concerned. So at the most on 18.07.2019 when the first show cause
notice was issued to the petitioner and the petitioner responded to
the same; So as per the order of the Hon'ble Patna High Court, the
proceeding must have been concluded six months from 18.07.2019
but a disciplinary proceeding which concludes with imposition of
penalty was concluded beyond the period of six months from
18.07.2019 i.e. on 10.12.2020. So in view of the settled principle of
law reiterated by the coordinate Bench of this court in the case of
Yamuna Ram vs. State of Jharkhand & Ors. (supra) punishment
order of reduction of 5% of the pension for a year is not
sustainable in law.
13. Further undisputedly, the pension of the petitioner was approved
on 09.11.2017 so in view of the Rule 139 of the Pension Rules; the
same cannot have been reduced beyond the period of three years
on 10.12.2022. On these two counts, the order reducing the
payment of the pension of 5% for one year is not sustainable in
law.
14. In view of the discussion made above and the facts and
circumstances of the case, the portion of the order dated
10.12.2020 in relation to deduction of 5% pension of the petitioner
for one year is quashed and set aside and consequently, the
review order dated 09.06.2021 is also quashed and set aside.
15. In the result, this writ petition is allowed to the aforesaid extent
only.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 17th February, 2024
AFR/Sonu-Gunjan/-
