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2013 DIGILAW 217 (JHR)

Arvind Kumar Sinha v. State of Jharkhand

2013-02-11

SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. The petitioner was posted as Executive Engineer at Chaibasa during the period 02.12.1988 to 04.06.1991. During this period work relating to Swarnrekha Multipurpose Project was carried out, for the purpose of which an agreement was already signed on 18.03.1985. In contemplation of a departmental proceeding the petitioner was suspended on 01.12.1994 and thereafter a departmental proceeding for irregularities committed by the petitioner and others when the petitioner was posted at Chaibasa, was initiated on 04.06.1997. The petitioner submitted his reply on 28.06.1997 and in the inquiry it was found that the charges against the petitioner are not proved. However, the disciplinary authority on 31.07.2002 passed the order of dismissal from service. The petitioner filed C.W.J.C. No. 9803 of 1999 (P) challenging order dated 31.07.2002 passed by the Deputy Secretary to the Government of Bihar, Water Resource Department, Bihar. The writ petition was allowed in the following terms, “In this view of the matter, relying on the decision of the Division Bench of this Court in the case of State of Bihar- versus-Arvind Bijay Bilung & Another (Supra) the order as contained in Annexure-31 to the writ application passed 31/07/2002 dismissing the petitioner from service is hereby quashed and the matter is being remitted to the Secretary to the Government, Water Resource Department, Government of Jharkhand, to take a fresh decision in the matter in accordance with law. The State of Bihar at its own or on the request of the State of Jharkhand may forward such materials, which are in its possession against the petitioner for taking action against him and the State of Jharkhand on receipt of such materials from the State of Bihar may pass an appropriate order in accordance with law within a period of six months from the date of receipt / production of a copy of this order.” 2. As no proceeding was initiated against the petitioner by the State of Jharkhand, the petitioner, thereafter submitted representations to the respondents for grant of pension and other retiral benefits to him. However, no decision was taken on the representations of the petitioner and therefore, the petitioner approached this Court by filling the present writ petition seeking a direction upon the respondents for grant of pensionary benefits and for grant of notional promotion on the higher post of Superintending Engineer and the Chief Engineer. However, no decision was taken on the representations of the petitioner and therefore, the petitioner approached this Court by filling the present writ petition seeking a direction upon the respondents for grant of pensionary benefits and for grant of notional promotion on the higher post of Superintending Engineer and the Chief Engineer. During the pendency of the writ petition an order dated 22.01.2008 under Rule 43 (b) of the Bihar / Jharkhand Pension Rules was passed therefore, I.A. No. 638 of 2009 seeking amendment in the prayer of the writ petition was filed, which was allowed by order dated 15.12.2009. 3. A counter affidavit has been filed on behalf of the respondents resisting the claim of the petitioner. 4. Heard counsel for both the parties and perused the documents on record. The learned counsel for the petitioner has contended that once order dated 04.06.1997 has been quashed by this Court, no second inquiry can be conducted on the same charges. He relies on the decision of Hon'ble Supreme Court in the case of “K. R. Deb versus The Collector of Central Excise, Shilong”, reported in (1971) 2 SCC 102 . 5. He further submits that in view of the provisions contained in Rule 43(b) of Jharkhand / Bihar Pension Rules inquiry has to be initiated within four years of the alleged date of misconduct. Since the departmental proceedings was initiated by the State of Jharkhand against the petitioner only by order dated 21.10.2008, the same is not permissible in law. 6. Counsel for the petitioner has also brought to the notice of the Court orders passed by the Patna High Court whereby proceedings against one Awdhesh Kumar Shrivastava was quashed (CWJC No. 5840 of 1992). Another judgment dated 20.03.2007 passed in LPA No. 548 of 2006 and analogous cases has also been relied upon by the petitioner in support of his case. On the other hand, learned counsel for the respondents submits that the inquiry initiated by the State of Jharkhand was in continuation of the earlier inquiry conducted by the State of Bihar. The charges against the petitioner are very serious and in view of the order dated 02.08.2006 passed by this Court, inquiry against the present petitioner was initiated by the respondents. 7. The charges against the petitioner are very serious and in view of the order dated 02.08.2006 passed by this Court, inquiry against the present petitioner was initiated by the respondents. 7. The record of the case reveals that the departmental proceedings initiated by the State of Bihar against the petitioner relates to the period when the petitioner was posted at Chaibasa, i.e. between the period 1988-1991. The order of dismissal passed against the petitioner was quashed by this Court vide order dated 31.07.2002 and State of Jharkhand was permitted to take a decision in the matter. It doesnot appear from order dated 02.08.2006 passed by this Court that State of Jharkhand was permitted to conduct a fresh inquiry. Rather, it appears that State of Jharkhand was required to pass appropriate order on the basis of the materials available with the State of Bihar. 8. For about two years after the order of this Court dated 02.08.2006 was passed, no order was passed by the State of Jharkhand. A proceeding under Rule 43(b) of the Jharkhand/Bihar Pension Rules was initiated on 21.10.2008. Notices dated 25.10.2008 and 22.11.2008 were issued to the petitioner and the petitioner submitted his reply on 24.02.2009 and 26.02.2009. Thereafter, an inquiry report was submitted in which charges against the petitioner were found proved. The petitioner has specifically contended in his reply submitted to the inquiry officer that proceeding under Rule 43(b) of the Jharkhand / Bihar Pension Rules against the petitioner is not maintainable and is barred by time. Thereafter, an inquiry report was submitted in which charges against the petitioner were found proved. The petitioner has specifically contended in his reply submitted to the inquiry officer that proceeding under Rule 43(b) of the Jharkhand / Bihar Pension Rules against the petitioner is not maintainable and is barred by time. Rule 43(b) of the Jharkhand / Bihar Pension Rules is extracted ; “43(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 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 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; (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. 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.” 9. On plain reading of the provisions contained in Rule 43 of Jharkhand Pension Rules, it is manifest that no proceeding can be initiated in respect of event which took place more than four years before institution of such proceedings. I find that even the proceeding initiated by the State of Bihar against the petitioner was not in terms of Rule 43 of Bihar Pension Rules. The alleged period of misconduct was between 1988-1991 and departmental proceedings against the petitioner was initiated on 04.06.1997 and thus, it was beyond the prescribed period of four years. 10. The present proceeding was initiated against the petitioner by the State of Jharkhand on 21.10.200 The charge memo clearly mentions the charge period as 1988-1990. Thus, I find that the present proceeding initiated under Rule 43(b) of Jharkhand / Bihar Pension Rules is not sustainable in law. 11. In the case of “State of Bihar and others versus Mohd. Idris Ansari” reported in (1995) suppl. (3) SCC 56, the Hon'ble Supreme Court while interpreting the same Rule, has held as under:- “7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27.9.1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17.10.1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition No. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17.10.1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned notice dated 27.9.1983. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17.10.1987.” 12. From the above discussion, it is clear that the proceeding initiated by the State of Jharkhand against the petitioner was contrary to law and therefore, it requires interference by this Court. I further find that no second inquiry is contemplated under Rule 43 of Jharkhand / Bihar Pension Rules and in that view of the matter also the proceeding initiated on 21.10.2008 by the State of Jharkhand is liable to be quashed. 13. In the result, the writ petition is partly allowed and Resolution No. 2719 dated 21.10.2008 is hereby quashed. No other point has been argued by the counsel for the petitioner and therefore, other prayers of the petitioner have not been considered by this Court. 14. There shall however, be no order as to costs.