Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 350 (JHR)

Ajit Kumar Das v. State of Jharkhand

2013-03-08

SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. The petitioner has challenged order dated 14.12.2002 whereby an order for recovery of Rs. 1,42,96,110.42 /- has been ordered from the retiral benefits as well as from his movable and immovable properties. The petitioner has also challenged order dated 26.12.2002 by which payment of gratuity to the petitioner has been stopped. 2. The petitioner superannuated from the post of Divisional Forest Officer, State Trading Division with effect from 30th November, 1994. Two days after his superannuation, a criminal case under Section 409 of Indian Penal Code was registered against the petitioner. A departmental proceeding was initiated against the petitioner on 23.11.1996 and one Sri Rabindra Kumar, Conservator of Forest, was appointed as Enquiry Officer. The departmental proceeding continued ex-parte and enquiry report dated 05.10.1999 was served upon the petitioner. The petitioner moved the High Court in C.W.J.C. No. 1087 of 2000 (R) which was allowed on 22.02.2001 setting-aside the order passed in ex-parte departmental enquiry. The Enquiry Officer was directed to hold a fresh enquiry after giving notice and opportunity of hearing to the petitioner. As the petitioner was not paid pension etc., he had to move the High Court again. In the departmental proceeding also inspite of repeated request, the petitioner was not provided documents which would be apparent from orders dated 07.06.2001, 23.06.2001, 21.07.2001 etc.. Finally, order dated 14.12.2002 was passed whereby the entire pension and gratuity of the petitioner was withdrawn and a further direction was issued to recover the balance amount from the Provident Fund, Leave Encashment and movable and immovable properties of the petitioner. The said order has been passed in purported exercise of power under Rule 43 (a) and (b) of the Pension Rules. By order dated 22.02.2002, the gratuity of the petitioner was forfeited in the light of order dated 14.12.2002. In these circumstances, the petitioner has approached this Court again. 3. A counter-affidavit has been filed on behalf of the respondents taking the plea that the charges against the petitioner are grave. In a properly constituted and conducted departmental enquiry, it has been found that an amount of Rs. 1,42,96,110.42 /- has been misappropriated by the petitioner. 4. Heard counsel for the parties and perused the documents on record. 5. The learned counsel for the petitioner has submitted that the entire departmental enquiry is vitiated on account of non-supply of documents to the petitioner. 1,42,96,110.42 /- has been misappropriated by the petitioner. 4. Heard counsel for the parties and perused the documents on record. 5. The learned counsel for the petitioner has submitted that the entire departmental enquiry is vitiated on account of non-supply of documents to the petitioner. Inspite of specific direction of the High Court in C.W.J.C. No. 1087 of 2000 (R) the enquiry was not conducted fairly and the petitioner has not been afforded reasonable opportunity to defend himself. Though, the respondents were directed to release 75 % pension to the petitioner, it was not released and the petitioner had to approach this Court again. The petitioner has been victimized and he had to approach High Court on several occasions. On the other hand, the learned counsel for the respondents has supported the impugned orders on the ground that the petitioner is liable to compensate the loss caused by him to the state exchequer. 6. The petitioner has superannuated from service with effect from 30.11.1994 and the departmental proceeding was initiated on 23.11.1996 with respect to the incidents which occurred during his posting at Gumla between 30.01.1990 and 30.11.1994. The learned counsel for the petitioner has submitted that the incident which is prior to 1992 can not be reopened and departmental enquiry can not be instituted with respect to an event which is 4 years prior to the initiation of the departmental proceeding. She has relied on Rule 43 (b) of the Jharkhand Pension Rules which is extracted below, Rule 43 (b). She has relied on Rule 43 (b) of the Jharkhand Pension Rules which is extracted below, Rule 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.” 7. In the case of “State of Bihar & Ors. Vs. Mohd. In the case of “State of Bihar & Ors. Vs. Mohd. Idris Ansari” [reported in (1995) Suppl (3) SCC 56], the Hon'ble Supreme Court has held that under Rule 43 (b) of Bihar Pension Rules (pari materia to Rule 43 (b) of Jharkhand Pension Rules) the departmental proceeding against an employee can not be initiated with respect to an event which has occurred 4 years prior to the initiation of the departmental proceeding. In para 7 of the judgment, the Hon'ble Supreme Court 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 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.” 8. 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.” 8. The learned counsel for the respondents has submitted that the departmental proceeding was initiated for the period 1989-1990, 1990-1991, 1991-1992, 1992-1993, 1993-1994 and 1994-1995 which have to be taken as a composite period and it is a chain of events constituting misconduct on the part of the petitioner and hence it would be covered under Rule 43 (b) of the Pension Rules. 9. Without going into the controversy with respect to non-supply of documents and the events which allegedly could not have been reopened in the departmental proceeding initiated on 23.11.1996, I find that the impugned order dated 14.12.2002 is not sustainable in law for the simple reason that not only the Provident Fund and Leave Encashment of the petitioner have been forfeited besides, the pension and gratuity, it has been ordered to recover the balance amount of Rs.1,42,96,110.42 /- from the movable and immovable properties of the petitioner. Rule 43 of Jharkhand Pension Rules speaks of Pension of an employee. Rule 27 says that pension includes gratuity. Thus, beyond pension and gratuity, nothing would be covered Rule 43 of the Pension Rules. Leave Encashment is paid on account of unutilized leave and therefore, it partakes the character of salary. Under Rule 43 (b) of the Pension Rules, salary of the petitioner can not be withheld / withdrawn / forfeited. In the case of “Bajrang Deo Narain Sinha Vs. State of Bihar and Others” [reported in (1999) 3 PLJR 949] it has been held that Leave Encashment dues can not be withheld because it is paid in lieu of unutilized leave. The Full Bench judgment of this Court in the case of “Dr. Dudh Nath Pandey Vs. State of Jharkhand and Others” [reported in 2007 (4) JCR 1 (Jhr)] has also taken note of and approved the judgment in the case of “Bajrang Deo Narain Sinha Vs. State of Bihar and Others” [reported in (1999) 3 PLJR 949]. 10. From the aforesaid discussion, it clearly emerges that order dated 14.12.2002 and the consequent order dated 22.12.2002 are liable to be quashed and are therefore, hereby quashed. State of Bihar and Others” [reported in (1999) 3 PLJR 949]. 10. From the aforesaid discussion, it clearly emerges that order dated 14.12.2002 and the consequent order dated 22.12.2002 are liable to be quashed and are therefore, hereby quashed. Since the petitioner has superannuated in the year 1994, the respondents are directed to pass a fresh order after supplying all the documents and granting an opportunity of hearing to the petitioner or his authorized representative, within a period of 6 months. 10. The writ petition is disposed of in the aforesaid terms.