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Jharkhand High Court · body

2009 DIGILAW 1338 (JHR)

Sheo Prasad Pathak v. State of Jharkhand

2009-10-27

AMARESHWAR SAHAY

body2009
Judgment Heard the counsel for the parties. The petitioner was a Range Officer and in the year 1994-95 he was posted as such at Chaibasa. At that time, the petitioner was put under suspension on 15/07/1995, in contemplation of a departmental proceeding. The memo of charge was served on him to which he submitted his show cause and a departmental proceeding was initiated against him. The allegation against the petitioner was for misappropriation of Rs. 33.76 lakhs and Rs. 85,786. Since the departmental proceeding was not being concluded, the petitioner moved this Court by filing C.W.J.C. No. 3515 of 1997 (R), making a grievance that though he was put under suspension in the year 1995 but the departmental proceeding was not being concluded. A copy of the order dated 03/11/1998, passed in the aforesaid C.W.J.C. No. 3515/1997 (R) has been annexed as Annexure-3 to the writ petition from which it appears that it was taken note of the fact that because of the non-cooperation on the part of the petitioner the proceeding was being delayed. Accordingly, the said writ petition was disposed of with a direction to the authority concerned to conclude the departmental proceeding within a period of six months from the date of appearance of the petitioner. It was also observed that even if the petitioner does not appear, the authority concerned shall dispose of the proceeding on the basis of the materials on record. The petitioner, thereafter, filed letters patent appeal against the said order passed in the writ petition, which was also dismissed on 10/05/1999. The case of the petitioner is that he retired from service on 31/03/1999. He did not receive any notice with regard to continuation or initiation of a fresh departmental proceeding in terms of Rule 43 (b) of the Pension Rules. The grievance of the petitioner is that after his retirement, he received a copy of the enquiry report dated 23/07/1999, wherein it was stated that the charges against the petitioner regarding defalcation and misappropriation was proved on the basis of the materials on record. The petitioner was served with second show cause notice to which he replied and, thereafter, the Government of Bihar, Department of Forest and Environment by resolution dated 22/02/2003, contained in Annexure-7 to this writ petition, took a decision to recover the defalcated amount of Rs. 33.76 lakhs from the pension, gratuity and other retiral benefits. The petitioner was served with second show cause notice to which he replied and, thereafter, the Government of Bihar, Department of Forest and Environment by resolution dated 22/02/2003, contained in Annexure-7 to this writ petition, took a decision to recover the defalcated amount of Rs. 33.76 lakhs from the pension, gratuity and other retiral benefits. His full pension was also ordered to be forfeited. It is this decision of the Government of Bihar, contained in Annexure-7 dated 22/02/2003, is under challenge in this writ petition. According to the petitioner, the state of Bihar had no jurisdiction to pass the aforesaid impugned resolution for recovery of the amount of RS. 33.76 lakhs from his pensionary benefits and no order for forfeiture of his full pension could have been passed because the impugned order, i.e. Annexure-7 was passed on 22/02/2003, i.e. after creation of the State of Jharkhand and, therefore, the state of Bihar ceased to have jurisdiction to pass any order after 15/11/2000, i.e. the date on which the State of Jharkhand was created. Further according to the petitioner, since he superannuated from service on 31/03/1999 itself and, therefore, without initiating the fresh departmental proceeding under Rule 43 (b) of the Bihar Pension Rules, no such order for recovery of the aforesaid defalcated amount could have been passed. On the other hand, the Respondent nos. 7 and 8, i.e. the state of Bihar and Secretary, Department of Forest and Environment, Bihar by filing a counter affidavit, have stated interalia that the petitioner was advanced a sum of Rs. 66.36 lakhs for road side and canal side plantation work under Jawahar Rojgar Yojna but the petitioner submitted account for Rs. 63.81 lakhs only and for the remaining balance of Rs. 2.55 lakhs neither any account was submitted by the petitioner nor the balance amount was returned by him. It has also been stated that out of the account of Rs. 63.81 lakhs submitted by the petitioner, on physical verification, it was found that actually only Rs. 32.60 lakhs was spent on works. Therefore, it was found that the petitioner had misappropriated/ embezzled Rs. 33.76 lakhs of the government fund. Accordingly, a departmental proceeding was initiated against him on 06/02/1996 for the following charges:- (i) Misappropriation/embezzlement of Rs. 33.76 lakhs of Government money. (ii) Dereliction of duty and indiscipline in execution of work with intention to embezzle the Government money. Therefore, it was found that the petitioner had misappropriated/ embezzled Rs. 33.76 lakhs of the government fund. Accordingly, a departmental proceeding was initiated against him on 06/02/1996 for the following charges:- (i) Misappropriation/embezzlement of Rs. 33.76 lakhs of Government money. (ii) Dereliction of duty and indiscipline in execution of work with intention to embezzle the Government money. (iii) Negligence towards the Government work. (iv) Absconding from duty without any information. The Member Board of Revenue was appointed as an Enquiry Officer, who conducted the proceeding and the enquiry report was submitted holding that the charges against the petitioner was found to be proved and established. The enquiry report was served on the petitioner. It has also been stated that by letter No. 3941 dated 21/12/2000 of the Forest and Environment Department, Government of Bihar, the Bihar Public Service Commission was requested to give its approval under Rule 43 (b) of Bihar Pension Rules on decision taken by the State Government in Departmental Proceeding against the petitioner. After receipt of the consent from Bihar Public Service Commission, the impugned resolution dated 22/02/20043 was taken to forfeit the full pension of the petitioner and for recovery of the amount of Rs. 33.76 lakhs from his retiral dues. It is further stated in the counter affidavit by the State of Bihar that under Rule 43 (b) of Bihar Pension Rules it has been explained that for the purpose of this Rule departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the government servant has been placed under suspension from an earlier date. The charge memo was served on the petitioner while he was in service and also he was placed under suspension and he superannuated from service while in suspension. Considering the respective arguments advanced by the parties, in my view, it is only in cases where a person had retired from service and no departmental proceeding is initiated while he was in service then the departmental proceeding can be initiated under Rule 43 (b) separately in respect to an event which took place not more than four years before the institution of such proceeding. Therefore, the objection raised by the petitioner in his writ petition regarding Rule 43 (b) of Bihar Pension Rules is not tenable. Therefore, the objection raised by the petitioner in his writ petition regarding Rule 43 (b) of Bihar Pension Rules is not tenable. It appears that the petitioner was served with second show cause notice but he did not reply to the same and, therefore, in view of the direction of the High Court to conclude the proceeding within a period of six months, the impugned resolution taking a decision to recover the amount defalcated by the petitioner and to forfeit his full pension, was passed. From the counter affidavit filed on behalf of the Respondent Nos. 2 to 6 it appears that the points raised in the counter affidavit, filed by the State of Bihar has been reiterated and at the same time it has been stated therein that by way of precautionary majors, the Government of Bihar, Department of Forest & Environment had converted the departmental proceeding under Rule 43 (b) of Bihar Pension Rules though it was not required to initiate a fresh proceeding under Rule 43 (b) of Bihar Pension Rules. No reply or rejoinder has been filed by the petitioner to the counter affidavits filed by the State of Jharkhand as well as by the State of Bihar. So far as the point of jurisdiction raised by the petitioner is concerned, in my view, the same is not at all tenable in view of the fact that he was posted in the year 1994-95 as Forest Range Officer at Chaibasa. A departmental proceeding was initiated against him in the year 1996 and the same was concluded in the year 1999 itself and at that time the State of Jharkhand was not even born. The petitioner retired from service on 31/03/1999 and, therefore, there is no doubt that the State of Bihar was the competent authority to initiate departmental proceeding against the petitioner and pass an appropriate order in accordance with law. Therefore, even if the impugned resolution i.e. Annexure-7, was passed in the year 2003, after the creation of Jharkhand but the fact remained that the petitioner was a servant of the State Government of Bihar and he retired as Government Servant of Bihar and, therefore the State of Bihar was having full authority and jurisdiction to take any action against its servant in accordance with law. The order passed in 2003 was only a consequential to the enquiry held in 1999. The order passed in 2003 was only a consequential to the enquiry held in 1999. Therefore, the point of jurisdiction, raised by the petitioner is hereby rejected. From perusal of the enquiry report I find that the Enquiry Officer has dealt with the entire materials and evidence on record and, thereafter, has come to finding of facts that the charges against the petitioner has been proved. In view of the discussions and findings above, I do not find any illegality or irregularity in the impugned resolution. Accordingly, having found no merit, this writ application is dismissed. However, in the facts and circumstances of the case, there shall be no order as to cost.