Vijay Kant Jha vs The State Of Bihar And Ors
2023 Latest Caselaw 5367 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.2056 of 2011
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VIJAY KANT JHA S/O Late Laxmi Kant Jha Reted. A.D.J. Residing At Neel Knath Colony, Phase-2, A.G. Colony Road, P.O.- Ashiyana, Patna-25

... ... Petitioner/s Versus

1. THE STATE OF BIHAR

2. High Court Of Judicature At Patna Through Their Registrar General, High Court, Patna

3. Accountant General, Birchand Patel Marg, Bihar, Patna

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. P. K. Jha, Advocate Mr. Anurag Pandey, Advocate For the High Court : Mr. Raj Nandan Prasad, Advocate Mr. Vishesh Kumar Singh, Advocate For the State : Mr. Mithilesh Kumar Upadhaya, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 17-10-2023

The petitioner was a District Judge, who was

suspended and the suspension revoked prior to his retirement.

Later, a charge-sheet was issued and disciplinary proceedings

initiated, which concluded with a withholding of 25% of the

pension. In addition to the challenge to the findings in the Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

inquiry report, as based on surmises and conjectures, it is

urged that there is no sanction from the Government as

required under proviso to Rule 43(b) of the Bihar Pension

Rules, 1950. It is also argued that there were two inquiry

reports which makes suspect, the action of the High Court and,

in any event, the disciplinary inquiry ought not to have been

initiated since the allegations were with respect to a judicial

order against which a statutory appeal lies and not a

disciplinary proceeding.

2. We heard Sri P.K. Jha, learned counsel for the

petitioner and Mr. Raj Nandan Prasad, Learned Standing

Counsel for the High Court and Sri Mithilesh Kumar

Upadhaya, learned counsel for the State.

3. Learned Standing Counsel appearing for the

High Court produced before us the Standing Committee

minutes which revoked the suspension but also directed the

inquiry to be continued. It is pointed out that the Explanation

to Rule 43 deems the departmental proceedings to have been

instituted when the charges framed against the delinquent are

issued to him or, if the Government servant has been placed

under suspension from an earlier date, in the latter case on

such earlier date. In the present case, the petitioner was placed Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

under suspension prior to the retirement and in such

circumstances, there is no requirement to obtain a sanction

from the Government as required in the proviso. The inquiry

proceeding by virtue of the Explanation is claimed to have

commenced prior to his retirement; to continue which, after

retirement, no sanction under Rule 43(b) is required. The

allegation though arises from a judicial order, does not dwell

upon the order itself but is regarding the tampering of the

party array, thus, substituting an accused and absolving the

actual perpetrator of the crime.

4. We have to first look at the procedural aspect

pointed out insofar as no sanction having been obtained from

the Government; which would vitiate the very inquiry itself.

Rule 43 confers on the State Government the right to

withhold or withdraw 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 the

pecuniary loss caused to the Government; if the retired

employee is found guilty of grave misconduct in a

departmental or judicial proceeding or found to have caused

pecuniary loss to the Government by misconduct or

negligence during his service or during the period when he Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

was re-employed after his retirement. The proviso requires the

institution of the departmental proceeding while the

government servant was on duty either before retirement or

during re-employment and mandates the sanction of the State

Government, if the disciplinary proceedings are instituted after

the government servant has retired or there is severance from

re-employment. The Explanation also deems the institution of

the disciplinary proceedings to be from the date of suspension,

if the suspension is from a date earlier to the issuance of the

charge-sheet. Hence, the trite principle that institution of the

departmental proceedings is from the date of issuance of

charge-sheet to the delinquent employee, does not apply under

the Bihar Pension Rules, 1950.

5. However, what assumes significance is the fact

that the petitioner, who was suspended on 20.03.2008, was

taken back in service after revoking the suspension on

28.06.2008. On 30.06.2008, he retired from service and by

Annexure-1 dated 17.09.2008, the charge memo was issued to

him. A disciplinary inquiry was conducted and based on the

findings in the inquiry, the petitioner was imposed with the

penalty of 25% withholding of pension.

6. The order of suspension dated 20.03.2008 is Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

produced as Annexure-C along with counter affidavit of the

second respondent dated 01.11.2017. Revocation of the

suspension, dated 28.07.2008 is produced as Annexure-8,

along with supplementary affidavit on behalf of the petitioner

dated 12.12.2013. Annexure-8 reads as follows:-

The order of suspension passed against Sri Vijay Kant Jha, the then additional District and Sessions Judge, Fast Track Court, Begusarai (headquarter of Gaya) issued under Court's memo No.4075-76 dated 20.03.2008 is hereby revoked as he is going to retire on 30.06.2008.

There is nothing stated in the said order, revoking suspension,

about the continuance of inquiry and the reason stated for

revoking the suspension is the impending retirement, two days

hence.

7. The continuation of suspension as recorded by

the Standing Committee, has not been informed to the

petitioner nor specified in the order revoking suspension;

which puts to peril the argument of the High Court based on

the Explanation to Rule 43. For the date of suspension; earlier

to the issuance of chargesheet, to be reckoned as the date on

which the proceedings have been instituted, it is a necessary

corollary that the suspension should continue till the charge-

sheet is issued.

Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

8. Often times, when an allegation is brought to

the notice of the Disciplinary Authority, especially with

respect to extraneous considerations having been employed in

the discharge of judicial work, it is necessary that the Officer

be kept out of service, not only to ensure the preservation of

the records of the case, on which the allegations are raised,

which is in the custody of the judicial officer but also to

ensure that such acts leading to the allegations are not

repeated, thus frustrating the due process in the justice

delivery system. However, when the suspension is revoked,

even if by reason of impending retirement; the continuance of

which would have caused no prejudice to the Department,

then the date of suspension cannot be said to be the date of

institution of proceedings; which has to go by the trite

principle of institution of proceedings being found as on the

date of issuance of charge memo.

9. In the present case, admittedly, there is no

sanction obtained from the Government for initiating the

disciplinary proceedings after retirement. The Officer retired

on superannuation with his suspension revoked two days

before. The entire proceedings has to be set aside and in the

consequence of the retirement of the petitioner, there could be Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

no resumption of the inquiry proceedings from the stage at

which the illegality is found, for reason of it not being a mere

irregularity, being a violation of the statutory rules and there

existing no employer-employee relationship as of now, more

than a decade and half from the date of retirement.

10. The learned Standing Counsel for the High

Court has referred to a Full Bench decision of this Court in

Shambhu Saran v. The State of Bihar reported in (2000) 1

PLJR 665, wherein the scope of Bihar Pension Rules, 1950

was examined; but not with respect to the specific aspect now

arising in the present case; according to us. Rule 43(b) of the

Bihar Pension Rules, 1950, was found to be a provision aimed

at punishing a government servant for a wrong committed, in a

different way, because after retirement, major or minor

penalties could not have been imposed under the

Classification, Control and Appeal Rules; as could have been

done, when in service. Rule 43(b) was found to safeguard such

a limitation of time only to prevent misuse of power, visiting

any undue harassment to the government servant after

retirement. The said rule has no application when the

departmental proceeding is pending against a government

servant at the time of retirement.

Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

11. A departmental proceeding pending at the

time of retirement would not require a specific or express

order of the Government to be continued even after retirement

though there is a severance of the employer-employee status.

The said status is continued only for the purpose of finding out

the complicity or involvement of the employee concerned in

the misconduct alleged. A different punishment; if the retired

employee is found guilty is contemplated visiting adverse

consequences on the retired employee's pension, which acts as

a deterrent against every employee who otherwise would be

tempted to abuse his authority just prior to retirement. We bow

to the above proposition and are also bound by the same.

However, the declaration does not hold good in the present

case especially since the decision of the Standing Committee

to continue the disciplinary proceeding was never

communicated to the petitioner, who retired without any

pending proceeding or blemish against him.

12. In fact, it is a moot question whether, after

revocation of suspension, without issuance of a charge memo,

the Standing Committee would have been competent to hold

the disciplinary proceedings to be continuing; especially in the

context of the rigor of Rule 43(b), when the Explanation to the Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

Rule enables a continued suspension till the date of issuance

of a charge memo; in which event the proceeding would be

deemed to have been initiated on the date on which the

suspension was ordered. We find no application of the above

decision in the peculiar facts coming out in the instant case.

13. The learned counsel for the petitioner also

urged that the petitioner is entitled to 5% interest on the

pensionary benefits illegally detained by the Government. The

petitioner had specifically referred to memo No. P.C.-2-1-

46/79/3155 dated 07.11.1981 which 'speaks of payment of

interest on delayed payment of all kinds of pension'. The first

portion included clause A, which is extracted below:-

In spite of the various measures taken so far in checking delay in the disposal of pension cases, Government are distressed to find that the delay has not yet been altogether eliminated resulting in financial distress and pecuniary loss to pensioners and families of deceased Government servants. In view of the above and considering the desirability of paying compensation to sufferers by way of interest and imposing monetary punishment to Government servants responsible for delay the State Government have decided as follows: -

(a) Interest shall be allowed on delayed payment of all kinds of pension (including family pension) and D.C.R Gratuity @ 5% per annum for the period beyond three months after the pension/D. C. R. Gratuity becomes due and shall be payable till the end of the month preceding the month in which the payment of final pension actually begins and/or the payment of D.C.R. Gratuity is actually made. The interest shall be allowed only where it is clearly established that the payment Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

of pension / D.C.R. Gratuity was delayed on account of administrative laps or for reasons beyond the control of the retired Government servants. Each case of payment of interest shall be considered by the concerned Administrative Department in consultation with the Finance Department and the payment of interest must be authorised through a Government order. In all cases, where interest is paid the entire amount of interest shall be realised from the Government servants responsible for the delay.

14. The aforesaid provision is an expression and

reflection of the distress of the Government, in the retirement

dues of employees being not paid in time due to administrative

lapses. Such administrative lapses are lapses in the

computation and expeditious disbursement of pension dues

and not the denial of pension and gratuity for reason of an

administrative lapse which occurred in the institution of a

disciplinary proceeding. We are, hence, not inclined to grant

any interest for the delayed payment. However, we make it

clear that the payment of the gratuity and the withheld pension

shall be made within a period of 4 months from today and, if it

is not disbursed, then the entire amount shall carry interest at

the rate of 5% as enjoined upon by the Government in the

afore-extracted memo from the next date of expiry of the 4

month period. We also make it clear that in such

circumstances, the Government would be entitled to recover Patna High Court CWJC No.2056 of 2011 dt.17-10-2023

the interest portion, if any paid, from the government servant

responsible for the delay.

15. The writ petition is allowed setting aside the

impugned order of punishment, finding the very initiation of

inquiry proceedings to be vitiated with the aforesaid

observations/directions.

(K. Vinod Chandran, CJ)

( Rajiv Roy, J) sharun/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          19.10.2023
Transmission Date