Shiv Kumar Singh vs The State Of Jharkhand Through The ...
2024 Latest Caselaw 5152 Jhar

Jharkhand High Court

Shiv Kumar Singh vs The State Of Jharkhand Through The ... on 10 May, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(S) No. 3212 of 2018
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        Shiv Kumar Singh                      ...     Petitioner
                        Versus
        1.The State of     Jharkhand through the Principal

Secretary, Department of Water Resources, Government of Jharkhand, having its office at Nepal House, Doranda, District-Ranchi.

2.The Under Secretary, Department of Water Resources, Government of Jharkhand, having its office at Nepal House, Doranda, District-Ranchi.

3.The Engineer-in-Chief, Department of Water Resources, Government of Jharkhand, having its office at Nepal House, Doranda, District-Ranchi.

4.The Chief Engineer, Minor Irrigation, Department of Water Resources, Abhiyantran Bhawan, Kutchery Road, Ranchi, P.O., G.P.O, P.S Kotlwali, District-Ranchi.

5.The Superintending Engineer, Water Resources Department, P.O, Daltonganj, P.S. Daltonganj, District-

        Palamu                                ... Respondents
                                        -------

      CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                   -------

For the Petitioners : Mr. Prem Pujari Roy, Adv For the Respondents : Mr. Rahul Kamlesh, A.C. to S.C.-IV

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8/10.05.2024 Heard learned counsel for the parties.

2. The instant writ application has been preferred by the

petitioner praying therein for quashing of the appellate order as

contained in Memo No. 870 dated 05.02.2018 issued by

respondent No.2 (Annexure-12); whereby the appeal preferred

by the petitioner against the original order of punishment dated

22.03.2017 inflicting punishment of withholding of 10% of

pension of the petitioner for a period of five years as contained

in Memo No. 1474 dated 22.03.2017 (Annexure-10), has been

rejected.

The petitioner has further prayed for quashing of the

order of punishment dated 22.03.2017 (Annexure-10) and also

for a direction upon the respondent-authorities to compute the

entire arrear amount of pension sought to be deducted and

make payment of the same.

3. The brief facts of the case as it appears from the

pleadings of the writ application is that the petitioner was

holding the post of Assistant Engineer in Water Resource

Department prior to his superannuation on 31.1.2011 from

Minor Irrigation Division, Garhwa and in course of service, he

has rendered commendable work and has been appreciated

time to time for his good work and governance.

While the petitioner was posted as Assistant Engineer,

Irrigation Division, Murliganj, Madhepura (Bihar) in the year

2003-2004, he was entrusted with the work of construction of

Gangapur Distributory/Sub-distributory.

Pursuant to reorganization of the State of Bihar; the

petitioner was allocated cadre of Jharkhand and accordingly, on

9.10.2004 the petitioner handed over the charge of the office of

Irrigation Sub-Division, Koniyapatti (Bihar) and joined

Jharkhand. Since then, the petitioner had rendered services to

the State of Jharkhand and on completion of his age of

superannuation, he retired from service on 31.1.2011.

4. During his service tenure, a show-cause notice has been

issued to the petitioner by the State of Jharkhand on

22.02.2008 on the basis of a report sent by the State of Bihar in connection with allegations committed by him in the matter of

construction of Gangapur distributory as Assistant Engineer of

Irrigation Division, Mulriganj (Madhepura). The petitioner filed

his reply to the show-cause dated 22.2.2008 denying all the

allegations.

Thereafter, the petitioner was served with the Memo of

charges dated 18.2.2008, in contemplating of departmental

proceeding against him. The petitioner filed his reply denying

the allegations and requested to drop the proceeding as against

him.

Further case of the petitioner is that though the

respondent vide letter no. 1541 dated 24.09.2009 issued by the

Chief Engineer to the Under Secretary, Water Resource

Department, request was made to provide/supply the

documents to the petitioner as asked for by him but the said

documents have never been supplied/ provided to the petitioner

and during pendency of departmental proceeding, the petitioner

superannuated from service and all post retiral benefits were

also paid to him and even pension of the petitioner has been

fixed.

5. Subsequently, the departmental proceeding initiated

against the petitioner was converted into proceeding under Rule

43(b) of the Jharkhand Pension Rule (hereinafter to be referred

as the Rules). The petitioner again filed detailed reply before the

enquiry officer. The respondent vide letter no. 1644 dated

27.7.2015 requested the Executive Engineer, Irrigation Division, Murliganj, Madhepura (Bihar) to provide the gauze report of

Ganganpur Distributory at R.D. 14.75 for the period 30.10.2004

to 4.7.2007 and to the best of the knowledge of the petitioner,

no report, whatsoever, has either been communicated to the

Respondent-State of Jharkhand and/or to the petitioner and in

absence of the aforesaid gauze report allegations levelled against

the petitioner cannot be ascertained. Thus, non-supply of

documents caused strong prejudice to the petitioner in filing

reply to the allegations contained in the memo of charges.

However, second show cause along with enquiry report

was served upon the petitioner. The petitioner submitted his

reply to the second show cause. Finally, impugned order

inflicting punishment upon the petitioner has been passed.

Thereafter, petitioner filed an appeal against the

impugned order inflicting punishment but the same was also

rejected.

6. Mr. Prem Pujari Roy, learned counsel for the petitioner

submits that the petitioner retired from service on 31.01.2011.

While he was in service, a charge-sheet has been issued on

18.02.2009 for the alleged misconduct; however, the same did

not culminate into final order during his service period.

However, the final order was issued by reducing 10% of pension

from the pensionary benefits vide Annexure-12.

He contended that after his superannuation, he was

getting regular pension, as such after three years of regular

pension the respondents could not have initiated or continued the proceeding under Rule 43 (b) of the Pension Rules for the

sole reason that there is a specific bar under Rule 139 to pass

an order of reducing any pension after the expiry of three years

from the date of order of the sanctioning of pension; as such the

impugned order is bad in law. Learned counsel contended that

Rule 139 will be rendered useless, if the department adopts the

provision of 43(b) in the instant case.

7. It has been further submitted that the respondent-

authority at the request of this petitioner, vide letter no. 1644

dated 27.7.2015 requested the Executive Engineer, Irrigation

Division, Murliganj, Madhepura (Bihar) to provide the gauze

report of Ganganpur Distributory at R.D. 14.75 for the period

30.10.2004 to 4.7.2007; however, the same was never

communicated to the petitioner and in absence of the aforesaid

gauze report allegations levelled against the petitioner cannot be

ascertained.

Thus, non-supply of documents caused strong prejudice

to the petitioner in filing reply to the allegations contained in the

memo of charges. However, the disciplinary authority as well as

the appellate authority has not given any finding on the said

contention of the petitioner. He contended that on this score

alone, entire departmental proceedings be quashed.

He lastly made an alternative argument that at least the

petitioner may be given liberty to file a fresh appeal for

reconsideration of the appellate order on merit or the case may

be remanded to the appellate authority with a direction to reconsider the stand of the petitioner that important documents

have not been provided to him.

8. Mr. Rahul Kamlesh, A.C. to S.C.-IV appearing for the

respondents submits that it is not a case of Rule 139 of the

Pension Rules; rather it is a case of Rule 43 (b) but the proviso

to Rule 43(b) of Rules is not applicable in the instant case in

view of the fact that the charge-sheet was issued on 18.02.2009

well within time while the petitioner was in service. He further

referred to Rule 43(b) of the Pension Rules which categorically

states that the State Government reserves the right of

withholding or withdrawing a pension if the employee is found

in departmental or judicial proceeding, could have been guilty of

grave misconduct or to have caused peculiar loss to

Government by misconduct or negligence during his service.

By relying on first part Rule 43 (b) of the Pension Rules

he submits that the proviso will not be applicable because the

proceeding was well initiated prior to his date of retirement and

the same automatically got converted after his retirement and

the order of punishment has been passed not under section

139; rather under Rule 43(b) of the Pension Rules.

He further referred to the judgment passed by the Full

Bench of Patna High Court in the case of Shambhu Saran

Versus The State of Bihar & Ors, reported in (2000) 1 PLJR

665 (FB); as such the contention of the petitioner is not

sustainable in the eye of law.

9. It has further been submitted that the other contention of the petitioner that the documents has not been supplied to him

does not have any bearing in view of the fact that he was given

ample opportunity before the Inquiry Officer. As such, no

interference is required in the instant case.

10. Having heard learned counsel for the parties and after

going through the documents annexed with the respective

affidavits and the averments made therein; at the outset it is

clarified that any pension of a Government servent is to be

governed by Bihar Pension Rules which has been adopted by

the State of Jharkhand and Rule 43 and 139 specifically deals

with the issue of withholding any pension and what are the pre-

requisites required for the same. For brevity Rule 43 (b) and

Rule 139 is quoted hereinbelow:-

"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;"

"139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved.

(b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper.

(c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service.

No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed."

11. The issue involved in the instant writ application is that

as to whether the action of the respondent in imposing

punishment upon the petitioner was well within the statutory

power or as to whether the petitioner can get the relief due to

non-compliance of Rule 139.

12. Learned counsel for the petitioner had submitted that

there is a specific bar under Rule 139 to pass an order of

withholding any pension or part thereof after expiry of three

years from the date of order of sanction of pension.

In this regard, it is observed that though the pension of

the petitioner was sanctioned after his superannuation but the

fact remains; while the petitioner was in service, a charge-sheet

was issued against him vide charge-sheet dated 18.02.2009 and

during pendency of the departmental proceeding the petitioner

retired from service.

The stand of the petitioner that if Rule 43(b) is to be

employed in the instant case; Rule 139 will become redundant

in the background of the facts of the instant case, inasmuch as,

after three years of sanctioning of pension, no order can be passed for reduction of any part or full pension thereof. But this

submission of the petitioner is misplaced and not sustainable in

the eye of law for the reason mentioned herein below.

13. Rule 43(b) of the Pension Rules clearly stipulates that the

State Government reserves the right of withholding or

withdrawing a pension or any part of it and is also having right

of ordering the recovery from pension of full or part of any

pecuniary loss caused to the government if the retired employee

in departmental or in a judicial proceeding have been found to

be guilty of misconduct during his service period.

Admittedly, in the instant case, the departmental

proceeding was already going on and by efflux of time the

petitioner superannuated but the proceeding continued and

ultimately the petitioner was punished by order dated 22.3.2017

(Annexure-10). This issue, with regards to the safeguard

provided under 43 (b) proviso will not be available to the

petitioner in case of continuation of the proceeding has been

dealt with in detail in the case of Shambhu Saran versus

State of Bihar reported in (2000) 1 PLJR 665; wherein the

Full Bench of Patna High Court has decided the issue at para 8

which is quoted hereinbelow:

"8. The other point to be noticed is that a distinction is made in Rule 43(b) between a case where a disciplinary enquiry is already pending at the time of such superannuation and where no such disciplinary enquiry is pending at the time of retirement. Certain safeguards have been provided so that there may be no undue harassment after retirement when no proceeding had been initiated before his retirement. Even though there is no pending disciplinary proceeding at the time of such retirement, certain conditions, as contemplated by clauses (i), (ii) and (iii) thereof, are imposed for safeguarding the interest of the Government Servant concerned. Certain limitations on the powers of the authority concerned to initiate a fresh proceeding after retirement, where no such proceeding was initiated before such retirement, have been provided for to prevent any misuse of such power. But the question of providing such safeguard does not arise if there is already a disciplinary proceeding pending at the time of the superannuation of the Government Servant concerned. There is no question of any harassment in such a case and, accordingly, no condition has been imposed. These is a good reason for the same. Unless that power is conferred by virtue of the said provision, once a retirement takes place, then the employee concerned can easily say that he was beyond the scope of any action whatsoever. In that view of the matter, this provision has been made in the rule itself and the rule itself contemplates that a disciplinary proceeding, if already initiated, can be continued even after retirement. As we have already stated, that can be spelt out from the language of the provision itself, and, in any view of the matter, that can be spelt out by necessary implication. Accordingly, in our view, it is open to an authority concerned to continue with a disciplinary enquiry which was initiated before his retirement. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue. No such condition has been laid down in rule 43 in respect of a case where such a proceeding has already been initiated as required by the three conditions in respect of initiation of a fresh proceeding after such retirement. We cannot import the requirement of such a condition which is not in the rules. This would be against the principle of cassus omissus. If we accept the contention that such an order of the Government is required before such proceeding can be continued, then we shall be introducing a condition in the rule, which the rule does not provide for. In that view of the matter, we agree with the views expressed by the latter Division Bench and we hold that the Division Bench decision in the case of Singheshwari Sahay v. State of Bihar reported in 1979 BBCJ 735 has not been correctly decided."

14. It is true that under Rule 139, the Government cannot

pass an order after the expiry of 3 years for reducing any

pension. But in the instant case Rule 139 will not be applicable

since the departmental proceeding was going on. Though the

respondent has converted the proceedings under Rule 43 (b) but

that was also not required.

Further, it is also well settled that any clerical error will

not give any benefit to the other side. As stated hereinabove,

Rule 43(b) clearly stipulates that the State Government reserves its right of withholding a pension or any part of it in any

misconduct or negligence during the service of the petitioner. In

the instant case, the departmental proceeding was well initiated

while the petitioner was in service and that continued after his

retirement. Thus, the aforesaid judgment is squarely applicable

in the instant case.

15. As stated herein above, the stand of the petitioner that

Rule 139 will be rendered useless, if the department adopts the

provision of 43(b); is misplaced and not sustainable in the eye of

law because now the law is no more res integra that both the

Rules i.e. Rule 43 and Rule 139 of the Pension Rules has to be

read in harmonious consideration in the case of State of Bihar

v. Mohd. Idris Ansari, reported in 1995 Supp (3) SCC 56

and at the cost of repetition since in the instant case the

departmental proceeding was going on while the petitioner was

in service; there is no error in passing the final order and

accordingly the action of the respondents cannot be said to be

against any provision of law especially Rule 139 of the Pension

Rules.

16. Now coming to the alternative argument of the petitioner

that due to non-supply of required documents he was not able

to reply in correct manner and since the Disciplinary Authority

as well as the Appellate authority has not taken into

consideration such plea of the petitioner; as such the case may

be remitted back to the appellate authority for reconsideration.

It is evident from record that during enquiry proceeding the petitioner did asked for some documents and in fact one of

the respondents requested for supply of the same (Refer

Annexure-4 & 5 of the writ application), but those documents

were never served upon the petitioner. It is further evident from

record that neither the disciplinary authority nor the appellate

authority has considered the above plea.

17. As such, this Court is of the considered view that the

appellate authority should reconsider its order afresh.

Accordingly, without any interference with the order of

punishment, the appellate order as contained in Memo No. 870

dated 05.02.2018 (Annexure-12) is, hereby, quashed and set-

aside and the matter is remitted back to the Respondent No.2 to

decide the appeal afresh and pass a reasoned order on the

memo of appeal filed by the petitioner.

18. With the aforesaid directions, the instant writ application

stands disposed of in the manner indicated herein above.

(Deepak Roshan, J.) Amardeep/