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2013 DIGILAW 560 (JHR)

Rajendra Goswami v. State of Jharkhand

2013-04-26

SHREE CHANDRASHEKHAR

body2013
JUDGMENT Shree Chandrashekhar, J. – Challenging the order dated 29.11.2007 whereby the pension and gratuity of the petitioner has been withheld, the petitioner has approached this Court by filing this writ petition. 2. The brief facts of the case are that, the petitioner was initially appointed on 19.7.1963. He has superannuated from service on 31st January, 2001. The petitioner was posted as Head Clerk in Frozen Cement Bank, Hotwar, Ranchi at the relevant time, when he was implicated in a criminal case which was registered in the fodder scam cases. The petitioner was granted bail in the said criminal case i.e., R.C. 5 (A) of 2000. Finally on 15.4.2006, the petitioner was convicted by the IVth Additional Judicial. Commissioner-cum-Special Judge No.2, C.B.I. (A.H.D. Scam), Ranchi. The petitioner preferred criminal appeal being Cr. Appeal No. 691 of 2006 (S.J.) and he was released on bail by order dated 23.7.2007. It appears that after the conviction of the petitioner, the impugned order dated 29.11.2007 was passed by respondent No.1. The sole ground taken in the impugned order i.e., order dated 29.11.2007 is the conviction of the petitioner in the Criminal Case No. RC. 5(A) of 2000. Admittedly, no proceeding was initiated against the petitioner. In the counter-affidavit filed on behalf of the respondents, a plea has been taken that in terms of Rule 43 of Bihar/Jharkhand Pension Rules, the petitioner's pensionary benefit was liable to be withdrawn permanently because the petitioner's future conduct has been affected by the conviction in the criminal case. 3. Heard learned counsel appearing for the parties, and perused the documents on record. 4. Learned counsel appearing for the petitioner has submitted that without initiating any proceeding under Rule 43 of the Jharkhand Pension Rules, the pensionary benefits of the petitioner could not have been withdrawn by the respondents. No show-cause notice was issued to the petitioner before passing the impugned order; dated 29.11.2007 nor any proceeding as provided under Rule 43 (b) of the Jharkhand Pension Rules was ever initiated by the respondents against the petitioner. As against this, the learned counsel appearing for the respondents has submitted that conviction of the petitioner in the criminal case is a good ground for withdrawing/withholding his pensionary benefits. Charges against the petitioner are grave and therefore, on consideration of the materials on record, it was decided by the competent authority to withdraw the pensionary benefits of the petitioner. 5. Charges against the petitioner are grave and therefore, on consideration of the materials on record, it was decided by the competent authority to withdraw the pensionary benefits of the petitioner. 5. Rule 43(b) of the Jharkhand Pension Rules, 2000 is as follows : 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 bf 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 sere vice 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 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 maybe made;...... 6. From perusal of Rule 43(b) of the Jharkhand Pension Rules, it is clear that even for initiating departmental proceeding against an employee, the period during which such an action can be taken must be Within four years from the date of the commission of the alleged misconduct. 7. In “State of Bihar and others v. Md. Idris Ansari” reported in (1995) Suppl. (3) SCC 56, the Hon'ble Supreme Court while interpreting Rule 43(b) of the Bihar Pension Rules, 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 27.9.1993. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17.10.1987. 8. In the present case, admittedly no show-cause notice was issued to the petitioner nor any departmental proceeding was initiated against him. The Impugned order dated 29.11.2007 has been passed by the respondents in a mechanical manner which does not reflect any application of mind on behalf of respondent No.1. In any event, resort to Rule 43 (b) of the Jharkhand Pension Rules, 2000 is not available to the respondents, at the stage when impugned order dated 29.11.2007 was passed. Admittedly the alleged misconduct, committed was beyond the period of lour years when the impugned order has been passed. 9. In view of the aforesaid, the impugned order dated 29.11.2007 is quashed. However, it would be open to the respondents to initiate other proceeding against the petitioner, if permissible in law. 10. This writ petition is allowed. Petition allowed.