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Jharkhand High Court · body

2012 DIGILAW 1412 (JHR)

Jitendra Prasad Sharma v. State of Jharkhand

2012-09-19

ALOK SINGH

body2012
ORDER With the consent of the learned counsel for the parties, present petition is finally disposed of at this stage without calling for the counter affidavit in view of the fact that only question of law is involved in the present case. 2. Petitioner, who was working as Deputy Superintendent of Police, stood retired with effect from 01.12.2009, on attaining the age of superannuation. Vide impugned order dated 31.12.2010, 50% pension of the petitioner was directed to be withheld by invoking Rule 43(b) of the Jharkhand Pension Rules. 3. Feeling aggrieved, petitioner has knocked the door of this Court by invoking Article 226 of the Constitution of India. 4. Mr. Ashok Kumar Yadav, learned counsel for the petitioner has vehemently argued that Rule 43(b) of the Jharkhand Pension Rules can be invoked for withholding the full or partial pension only when disciplinary authority finds that due to misconduct, action omission or negligence on the part of the Government employee, Government has suffered any pecuniary loss. He further contends that after calculating such pecuniary loss, same can be directed to be recovered from the pension of such Government employee. Mr. Yadav further argues that if no pecuniary loss has been suffered by the Government for the alleged misconduct or negligence on the part of the Government servant, Rule 43(b) cannot be pressed in service, withholding the pension either in full or in part. 5. Mr. Yadav further argues that if no pecuniary loss has been suffered by the Government for the alleged misconduct or negligence on the part of the Government servant, Rule 43(b) cannot be pressed in service, withholding the pension either in full or in part. 5. Rule 43(b) of Jharkhand Pension Rules reads as under: “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 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 reemployment after retirement: Provided that– (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment; (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; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) The Jharkhand Public Service Commission, shall be consulted before final orders are passed.” 6. Having perused sub-rule (a) of Rule 43, I have no hesitation to hold that pension can be directed to be withheld when pensioner is convicted of serious crime or is guilty of grave misconduct. However, sub-rule (b) of Rule 43 can be pressed in service withholding in full or partial pension only when Government has suffered pecuniary loss on account of misconduct, negligence action or omission on the part of the Government servant. 7. Perusal of entire impugned order suggests that there was no pecuniary loss suffered by the Government on account of alleged misconduct of the petitioner. 8. 7. Perusal of entire impugned order suggests that there was no pecuniary loss suffered by the Government on account of alleged misconduct of the petitioner. 8. Petitioner was charge-sheeted on five counts, which are as under:- (I) in compliance of the order dated 31.12.2005, petitioner did not report to his Home Department. (II) petitioner remained in the Transport Department with effect from 01.01.2006 to 30.06.2006 without any order of the competent officer, despite the fact that he was relieved for his parent department. (III) petitioner has done correspondence with the Transport Minister directly, in violation of Government Servant Conduct Rules. (IV) petitioner worked on the post of Enforcement Officer for 5 years without any payment, which goes to prove suspicious character of the petitioner and misuse of his post. (V) during the Financial Year 200708 and 200809, recovery of the revenue was less when petitioner remained on the post of Enforcement Officer, Hazaribagh. 9. Charge No. (IV) was found to be not proved and other charges were found proved. None of the charges, as reproduced hereinbefore, suggests that due to misconduct, negligence, action or omission on the part of the petitioner, State Government had suffered any pecuniary loss. Nor such pecuniary loss has been calculated by the competent officer. Language of Charge No. (V) is ambiguous and totally vague. It nowhere suggests that target of the revenue collection was such and such which the petitioner has failed to achieve. 10. In view of what has been stated above, invocation of Rule 43(b) of the Jharkhand Pension Rules seems to be totally arbitrary and unjustified. Consequently, present petition is allowed. Impugned order is hereby quashed. 11. Let entire arrears of salary be paid to the petitioner within 90 days from today, failing which, petitioner shall also be paid interest @ 10% per annum from today, till the actual payment is made.