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Jharkhand High Court · body

2010 DIGILAW 480 (JHR)

Raj Dular Singh v. State of Jharkhand

2010-04-16

D.G.R.PATNAIK

body2010
Order Heard. 2. Petitioner in this writ application has prayed for issuance of a writ in the nature of certiorari for quashing the letter contained in Memo No. 1602 dated 9,12.2003 (Annexure-8) issued by the Secretary, Food, Civil and Supply Department. Government of Jharkhand whereby the Deputy Commissioner, Sahebganj has been informed of a decision taken by the concerned department to make a deduction of 15% from the pension of the petitioner for a period of ten years. A further prayer has also been made for quashing the letter dated 1.3.2004 (Annexure-10) issued by the Sub-Divisional Officer, Sahebganj directing the petitioner to prepare and furnish fresh pension papers on the basis of 15% deduction. The petitioner has also prayed for a direction upon the respondents to fix his final pension. 3. The petitioner was employed on the post of Additional District Supply Officer and was posted at Lohardaga. It appears that on 14.3.1999, substantial quantities of bags of rice, belonging to one Om Prakash Agarwal, were seized from the possession of said Om Prakash Agarwal and a criminal case was registered against him for offences under the Essential Commodities Act. At the time of seizure, the total quantity of rice as seized, was neither verified nor measured and the' bags of rice were locked and sealed in the shop of the said accused. Later, on the purported oral instruction of the Sub-Divisional Officer, the petitioner alongwith one Shree Kant Pal, Block Supply Officer and one Mithilesh Kumar, Supply Inspector, opened the seal of the shop/godown on 2.4.1999 and got the seized rice measured and prepared a seizure list and thereafter sealed the godown again. 4. More than three years later, a departmental proceeding was initiated against the petitioner on the charge that without obtaining prior permission/sanction from the concerned superior authorities, he had broken the seal of the godown even without ensuring the presence of the police officer conducting the investigation of the criminal case and the presence of an Executive Magistrate, and thereby had connived with the accused Om Prakash Agarwal to manipulate the measurement of the quantity of the seized rice. Not being satisfied with the show cause replies filed by the petitioner on 30.7.2002, the contemplated departmental enquiry was commenced fixing the date for the petitioner's appearance on 31.7.2002. Not being satisfied with the show cause replies filed by the petitioner on 30.7.2002, the contemplated departmental enquiry was commenced fixing the date for the petitioner's appearance on 31.7.2002. The petitioner claims that though he had appeared in the office of the Enquiry Officer in response to the notice on 31.7.2002, but he was informed that the Enquiry Officer was busy in law and order problem and therefore no proceeding in the enquiry was conducted on that date. The petitioner claims that subsequently he did not receive any further information from the Enquiry Officer regarding the next date fixed in the departmental proceeding. In the meantime, the petitioner superannuated from service on 31.12.2002 and upon being relieved from his office, he shifted to his home town at Patna. It further appears that after the petitioner's superannuation, the departmental proceeding was converted into a proceeding under Rule 43, (b) of the Pension Rules. The petitioner claims that he was not informed about such conversion of the proceeding. On .the other hand, the Enquiry, Officer by his letter dated 24.2.2003, in formed the petitioner through letter communicated at the petitioner's permanent address about the next date fixed in the departmental proceeding as 12.3.2003. The petitioner's contention, is that though he had appeared before the Enquiry Officer on 12.3.2003, but no enquiry on that date was conducted inasmuch as neither any documents nor-any list of witnesses to be examined in the proceeding was served upon the petitioner and neither was any witness examined in his presence. 5. The petitioner's further contention is that after about one year of his superannuation, he received the impugned letter dated 1.3.2004 (Annexure-10) issued by the Sub-Divisional Officer, Sahebganj whereby the petitioner was directed to prepare and furnish fresh pension papers as per the decision of the Government in the concerned department for deduction of 15% of his pension for ten years. 6. Being aggrieved, the petitioner has challenged the impugned order of deduction of 15% of his pension amount. 7. 6. Being aggrieved, the petitioner has challenged the impugned order of deduction of 15% of his pension amount. 7. Assailing the impugned order, learned counsel for the petitioner submits that the impugned order is totally illegal and contrary to the provisions of law and the principles of natural justice in view of the fact that before passing-the impugned order of deduction of 15% from the pension amount of the petitioner, no opportunity was given to him to look into the documents relied upon nor was any opportunity given to cross-examine any witness who may have' been examined at the departmental enquiry. The impugned order is' further bad on" account of the fact that the petitioner was not served with a copy of the enquiry report nor was he served with any show cause notice informing him the amount assessed towards the purported loss suffered by the State 5xchequer, if any. 8. Learned Counsel for the petitioner argues that once the departmental proceeding was initiated on the basis of specific charges, and subsequently such proceeding was converted into a proceeding under Rule, 43(b) of the Bihar Pension Rules, yet, the 'mandatory requirement of giving adequate opportunity to the proceedee to defend his case has to be followed, and no order for recovery of any amount from the pension of the petitioner - could have been passed even under Rule 43(b) of the Bihar Pension Rules without following the procedure as laid down. 9. Learned counsel for the respondent State, on the other hand, submits that under Rule 43(b) of the Pension Rules, there is no requirement either for supplying any copy of the enquiry report or for serving any second show cause notice to enable the retired employee to explain as to why his pension amount should not be withheld. Sri R.A. Mishra, learned counsel for the respondent State would explain that the scope of the proceedings under Rule 43 of the Pension Rules relates also to the proceeding? already commenced while the employee was in service. But before passing any order of punishment, if the employee had superannuated, then the employer is not remedy less. Rule 43 of the Pension Rules is therefore an independent provision under which the concerned authority has the power to withhold the pension amount of the retired employee. already commenced while the employee was in service. But before passing any order of punishment, if the employee had superannuated, then the employer is not remedy less. Rule 43 of the Pension Rules is therefore an independent provision under which the concerned authority has the power to withhold the pension amount of the retired employee. Learned counsel argues further that in the departmental proceeding, the petitioner was afforded adequate and reasonable opportunity which he had availed and therefore the petitioner cannot raise (he plea of violation of natural justice. Learned counsel argues further that though Rule 139 and Rule 202 of the Pension Rules envisages the issuance of notice before passing any order, but there is no such corresponding provision under Rule 43 of the Pension Rules. Rule 43, according to the learned counsel, is a special, unique and self-contained provision. Referring to a Full Bench judgment of the Patna High Court in the case of Shambhu Sharan vs. The State of Bihar & Ors., 2000 (1) PLJR 665 , learned counsel submits that nothing can be imported to prescribe a new condition which is not in the provision itself. Learned counsel submits further that the petitioner's contention that he was not furnished with a copy of all the relevant documents and the list of witnesses to be examined in the departmental proceeding, is incorrect and misleading as would be evident from Annexure-4 which the petitioner had himself, annexed and which is a copy of the letter addressed to the petitioner issued by the Deputy Secretary, Food, Civil and Supply Department, to the Deputy Commissioner, Ranchi. The letter informs that alongwith the Memorandum of Charge, a list of witnesses to be examined at the departmental proceeding was also furnished to the petitioner in Form-K as prescribed under Rule 167 of the Bihar Boards Miscellaneous Rules. Learned counsel argues further that insistence upon issuance of a prior notice before proceeding to withhold the pension of the retired employee, in order to give an opportunity to the employee to explain regarding the quantum of deduction from the pension would raise practical difficulties since the relationship of employer and employee having ceased to exist, all the steps which may be required to be followed during departmental proceeding, cannot be practically followed. 10. 10. From the rival submissions, the following admitted facts do emerge:- (i) A departmental proceeding was initiated against the petitioner prior to the date of his retirement from service but during the pendency of the proceeding, the petitioner had retired and thereafter, the proceeding was converted into a proceeding under Rule 43(b) of the Pension Rules. (ii) Though the departmental proceeding was initiated and the petitioner was intimated about the same, but the proceeding continued ex parte against the petitioner and at the conclusion of the proceeding, the Enquiry Officer had not only recorded a finding that the charge against the petitioner was proved, but had also recorded his recommendation that on account of the act of misconduct on the part of the petitioner the State Exchequer had suffered loss. (iii) The report of the Enquiry Officer was submitted to the concen1ed authorities of the Food and Civil Supplies Department, Government of Bihar, who in turn, had forwarded the Enquiry Report to the authorities in the concerned department in the State of Jharkhand. (iv) The Secretary, Food and Civil Supplies, Government of Jharkhand, acting upon the Enquiry Report, proceeded to order for recovery @ 15% from the petitioner's pension amount for a period of ten years. 11. The further facts which are undisputed are that though the departmental enquiry had concluded by the Enquiry Officer recording a finding of guilt against the petitioner, but the petitioner was not serve with a copy of the Enquiry Report nor was the petitioner informed as to whether any assessment of amount of loss allegedly suffered by the State Exchequer was made and if made, the details of such assessment was not furnished to the petitioner alongwith an opportunity to explain as to why the proposed recovery from his pension should not be made. 12. The controversy as raised by the' petitioner relates to the debate regarding the procedure which needs to be adopted before passing any order under Rule 43 of the Pension Rules and the question whether the concerned authorities are obliged to give opportunity to the retired employee to explain as to, why the proposed withholding of his pension amount should not be made. 13. For better appreciation, it would be worthwhile to refer to Rule 43 of the Pension Rules. Rule 43 reads as under:- 43. (a) Future good conduct is an implied condition of every grant of pension. 13. For better appreciation, it would be worthwhile to refer to Rule 43 of the Pension Rules. Rule 43 reads as under:- 43. (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (b) The State Government further reserve to themselves the right of with holding 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 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 proceeding, 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 not 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 re-employment, 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. [c] the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation - For the purposes of the rule- (a) 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, on such date; and (b) judicial proceedings shall be deemed to have been instituted:(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil court. 14. From a bare reading of the provisions of Rule 43(a) and (b), it would be manifest that though the provision of this Rule reserves the right to the State Government 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 either of the whole or part of any pecuniary loss caused to the Government but only if the pensioner is found in the departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence. [emphasis supplied] The proviso to the Rule lays down that if the departmental proceeding was not instituted while the Government servant was on duty either before retirement or during re-employment, it shall not be instituted save with the sanction of the State Government nor any such proceeding be instituted in respect of an event which took place not more than four years before of such event. The proviso also stipulates that such proceeding if initiated, shall be conducted by such authority and at such place 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. [emphasis supplied] The Rule therefore implies that if a departmental proceeding has already been initiated, it may be continued after the retirement of the Government servant but only for the purpose of Rule 43(b) of the Pension Rules. [emphasis supplied] The Rule therefore implies that if a departmental proceeding has already been initiated, it may be continued after the retirement of the Government servant but only for the purpose of Rule 43(b) of the Pension Rules. In any event, the requirement of the departmental/judicial proceeding is essential only to find out as to whether the pensioner has been found guilty of any grave misconduct and also to find out as to whether by such acts of proved misconduct, the Government servant had caused pecuniary loss to the Government during his service tenure. It implies therefore that the proceeding under Rule 43(b) of the Pension Rules is only an extension of the departmental proceeding and as indicated in Clause (iii) of Proviso (a) of Rule 43(b) of the Pension Rules, such departmental proceeding if initiated, with the sanction of the Government, after the retirement of the Government servant, in - respect of an event which took place not more than four years before the institution of such proceeding, the procedure applicable to the proceeding on which an order of dismissal from service may be made, has to be followed. To reiterate, in view of the proviso to Rule 43(b) of the Rules, the procedure to be followed in the enquiry under this Rule has to be one on which an order of dismissal could have been passed. It further implies therefore that before passing any adverse order under Rule 43(b) of the Pension Rules, the procedure adopted must be that of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 which provides for an elaborate enquiry in case the delinquent denies the charges. Evidence must be led to prove the charges which have been denied and the delinquent should be given a right to cross-examine the oral evidence and also to lead his own evidence. If the authority concerned is of the view that the Government servant has committed a grave misconduct and has caused pecuniary loss to the Government, then the memorandum of charge on which the departmental proceeding was conducted, should be specific. On such charge of causing pecuniary loss, the finding should also be specific as to what amount of loss did the Government Exchequer suffer on account of the misconduct of the Government servant. On such charge of causing pecuniary loss, the finding should also be specific as to what amount of loss did the Government Exchequer suffer on account of the misconduct of the Government servant. The exercise of jurisdiction under Rule 43(b) of the Pension Rules for withholding the pension amount cannot be resorted to arbitrarily and without affording opportunity to the pensioner of being heard. In this context, one may refer to the judgment of the Patna High Court in the case of Md. Fakhruddin vs. State of Bihar & Ors. 2001 (3) PLJR 687 . 15. It may be observed that the provisions of Rule 43(b) of the Pension Rules are aimed at punishing a Government servant who has done a wrong, in a different way because after retirement, the penalties, major or minor, cannot be imposed upon him which could have been imposed under the provisions of the Classification, Control and Appeal Rules, had he been in service. Therefore even as per the proviso to Rule 43(b) of the Pension Rules, before imposing the punishment of withholding the pension amount, mandatory procedure as envisaged in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules has to be followed. It would therefore be incumbent upon the disciplinary authority of the Government servant not only to give him an opportunity to explain as to why the proposed punishment of withholding the pension should not be made but also serving him a copy of the Enquiry Report in which the findings of proof of his alleged misconduct as well as findings that his act of misconduct has caused pecuniary loss to the State Exchequer and the assessment of the amount of such loss sought to be recovered, has also to be served upon the Government servant/pensioner. It may also be observed that where the powers under Rule 43(b) of the Pension Rules is claimed to have been exercised by the concerned authority, it implies that there is no question of applicability of Rule 139 of the Pension Rules which would otherwise have given the concerned authorities a wide area of discretion. 16. It may also be observed that where the powers under Rule 43(b) of the Pension Rules is claimed to have been exercised by the concerned authority, it implies that there is no question of applicability of Rule 139 of the Pension Rules which would otherwise have given the concerned authorities a wide area of discretion. 16. As per the admitted facts, the disciplinary proceeding which was initiated against the petitioner during his service tenure, had continued even after his retirement though under the nomenclature of Rule 43(b) of the Pension Rules but during the entire proceeding, except serving the Memorandum of Charge and receiving his explanations thereto, the proceeding was not conducted in presence of the petitioner. It is manifest therefore that the petitioner was not afforded opportunity of being heard and of defending his case in course of the disciplinary proceeding and furthermore, even after the conclusion of the proceeding which was conducted ex-parte against the petitioner, he was neither served with a copy of the Enquiry Report nor offered any opportunity to explain against the proposed punishment of withholding his' pension. In fact, no evidence appears to have been adduced in the disciplinary proceeding for assessing as to whether any pecuniary loss has been caused to the Government and if so, to what extent has such loss been occasioned by the alleged misconduct of the petitioner. No explanation has been offered as to the basis on which the decision for withholding 15% of the petitioner's pension amount for a period of ten years has been passed. 17. In the light of the aforesaid facts and circumstances, I am convinced that the impugned orders contained in Annexure-8 and Annexure-10 are unsustainable in law, being contrary to the mandatory provisions of the Rules and in violation of the principles of natural justice. Both the impugned orders are therefore hereby quashed. This writ application is accordingly allowed. The respondents are directed to release the amount of pension which may have been withheld so far on account of the impugned orders, within one month from the date of this order and to assess the final pension of the petitioner and issue appropriate orders to sanction and release the full pension amount to the petitioner. 18. In the facts of the case, there shall be no order as to cost.