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2013 DIGILAW 243 (JHR)

Dhanpat Pandey v. State of Jharkhand

2013-02-18

SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. The petitioner has approached this Court seeking a direction upon the respondents for payment of pensionary benefits as well as the arrears of pensionary benefits to him. 2. The petitioner retired from the post of clerk, Jamshedpur treasury with effect from 30.11.1999. Before the petitioner retired from service vide order dated 06.02.1996 he was put under suspension and a departmental proceeding was initiated against him. The petitioner was served with Charge Memo No. 32 dated 12.01.2000. The petitioner submitted his representation taking the plea that the departmental proceeding could not have been initiated against him after his retirement. It appears that the departmental proceeding did not continue or atleast there is nothing on record to indicate the outcome in the said departmental proceeding. However, the pension, gratuity, leave encashment etc. were not paid to the petitioner and therefore, he filed W.P.(S) No. 930 of 2002 and by order dated 09.08.2002 the respondents were directed to pay the provisional pension and gratuity to the petitioner. The petitioner was convicted in R.C. Case No. 23(A)/1996 on 23.04.2008 and he preferred Cr.A.(S.J.) No. 565 of 2008, which was admitted on 16.05.2008 and he was granted bail. It appears that -2- thereafter the pension of the petitioner was stopped and therefore, he had to approach this Court by filing the present writ petition. 3. A counter affidavit has been filed by the respondents in which it has been stated that in view of letter no. 3652 dated 10.11.2009 of the Finance Department the pension of the petitioner was stopped because he was convicted in R.C. Case No. 23(A)/1996. It has further been stated in the counter affidavit that in view of Rule 43(b) of the Jharkhand Pension Rules, the payment of pension to the petitioner has been stopped. 4. The petitioner has filed a rejoinder affidavit in which it has been pointed out that though charge memo was issued to the petitioner after his retirement, but departmental proceeding initiated against him did not continue and he has not been found guilty in any departmental proceeding. 5. Counsel for the petitioner has submitted that without issuing any show cause notice to the petitioner the pension of the petitioner has been stopped. The petitioner has not been found guilty in any departmental proceeding and therefore, the respondents are not justified in withholding/withdrawing the pension to the petitioner. 5. Counsel for the petitioner has submitted that without issuing any show cause notice to the petitioner the pension of the petitioner has been stopped. The petitioner has not been found guilty in any departmental proceeding and therefore, the respondents are not justified in withholding/withdrawing the pension to the petitioner. Learned counsel for the respondents does not controvert the statement that no show cause notice was issued to the petitioner nor he has been found guilty in any departmental proceeding. However, the learned counsel for the respondents has submitted that charges against the petitioner are grave and he has been convicted by a criminal Court and therefore, his pension has been withdrawn under Rule 43 (b) of the Jharkhand Pension Rules. 6. Rule 43(b) of the Jharkhand Pension Rules is extracted below:- “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 reemployment, 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.” 7. On perusal of the record of the case, I find that merely on the basis of conviction of the petitioner in R.C. Case No. 23(A)/1996, the Finance Department issued letter no. 3652 dated 10.11.2009 ordering withdrawal of pension to the petitioner. 8. While interpreting Rule 43(b) of Bihar Pension Rules the Hon'ble Supreme Court in the case of “State of Bihar and others versus Mohd. Idris Ansari” [reported in (1995) suppl. (3) SCC 56], 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. It is, therefore, apparent that no -4- 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. 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.” 9. As noticed above, the departmental proceeding initiated against the petitioner did not conclude. There is nothing on record to indicate that the petitioner has been found guilty in the departmental proceeding nor there is any material on record to indicate that the petitioner was issued any show cause notice prior to withdrawal of pension to him. I further find that mandate and procedure prescribed under Rule 43(b) of the Jharkhand Pension Rules have not been followed in the present case. The petitioner has been deprived of his pension without even affording an opportunity to him to defend himself. 10. In the result, this writ petition is allowed. The respondents are directed to release the pension of the petitioner as well as the arrears of pension and other admissible dues to him in accordance with law. 11. There shall however, be no order as to costs.