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2013 DIGILAW 88 (JHR)

Radha Raman Sahay v. State of Bihar

2013-01-16

JAYA ROY, PRAKASH TATIA

body2013
JUDGMENT: Heard learned counsel for the parties. 2. The appellant-petitioner is aggrieved against the judgment dated 27th November, 2012, by which, the petitioner's writ petition was allowed with permission to the respondents-State to issue show cause to the writ petitioner before passing appropriate order of withholding the pension of the petitioner. 3. Appellant no. 1 is the employee while appellant no. 2 is wife of appellant no. 1 and appellant no. 3 is unmarried daughter of appellant no. 1. Appellant's no. 1 office was sealed on 29th January, 1996 when he was working under the control of Regional Director, Animal Husbandry, Ranchi. However, on 29th February, 1996 appellant no. 1 retired upon attaining the age of superannuation. In view of said raid and sealing of the office, several cases were registered against several persons. When appellant no. 1 was not paid the retirement dues, he preferred writ petition, being C.W.J.C No. 1617 of 1997(R), which was allowed vide order dated 29th April, 1998 and directions were given to the respondents to pay the retirement dues of the petitioner. The State preferred L.P.A No. 356 of 1998 against the order dated 29th April, 1998, which was dismissed on 28th January, 2001. Then State filed a Review Application No. 19 of 2001, which was also dismissed. Thereafter, appellant no. 1 was granted pensionary benefits. However, in the year 2008 after conviction of the appellant no. 1 in one of the criminal cases his retirement benefits again stopped. Therefore, appellants preferred writ petition wherein learned Single Judge set aside the order impugned with liberty to the State to issue show cause notice to the writ petitioner and thereafter pass appropriate order. 4. The appellants' contention is that the respondent-State has no jurisdiction to initiate any proceeding for withholding the pension of the petitioner in view of Clause (ii) under Proviso (a) of Section 43(b) of Bihar Pension Rules, 1950. 5. Learned counsel for the State submitted that order was passed under Section 43(c) as well as under Section 43(b) of the Rules. 6. We considered the submission of learned counsel for the parties and perused the facts of the case. Undisputedly, the appellant no. 1 retired on 29th February, 1996 and according to learned counsel for the appellants, the F.I.R was lodged on 25th January, 2001 and charge-sheet was filed on 28th June, 2006. 6. We considered the submission of learned counsel for the parties and perused the facts of the case. Undisputedly, the appellant no. 1 retired on 29th February, 1996 and according to learned counsel for the appellants, the F.I.R was lodged on 25th January, 2001 and charge-sheet was filed on 28th June, 2006. From the counter filed by the respondent in the writ petition, it appears that after conviction of the appellant no. 1 in one case out of several cases, only on 14th January, 2008 a notice under Section 43(a) and 43(b) of the Rule was issued to the appellant no. 1 and thereafter the impugned order dated 24th October, 2008, by which the appellant's no. 1 pension was stopped, was passed. The Rule 43 is as under: 43. (a) Future good conduct is an implied condition of every grant of pension. The provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (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 proceeding, 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 not 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 of 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. 7. From the facts it is clear that in spite of criminal case since 1996, when appellants approached the Court by filing C.W.J.C No. 1617 of 1997 (R) the appellant was allowed the pensionary benefits by order of this Court dated 29th April, 1998 which was upheld by the Division Bench vide order dated 28th January, 2001. It appears that after conviction of the appellant no. 1 in the year 2008, the appellant's no. 1 pension has been stopped by the impugned order. Rule 43(a) provides that Government may withhold pension or part of the pension if pensioner is convicted of serious crime or be guilty of grave misconduct. However, as per the proviso (a) of Rule 43 (b), the Government could have started departmental proceeding during the service period of the employee or his re-employment. As per sub-clause (ii) of proviso (a) of Rule 43 (b), such departmental enquiry can be initiated with respect of pension which took place within four years before the institution of such proceeding. Therefore, the appellant who retired in the year 1996 and was not subjected to any departmental proceeding and he retired and he approached this Court by filing C.W.J.C. No. 1617 of 1997(R) wherein order was passed for giving benefit of the pension to the petitioner as back as on 29th April, 1998 then in the year 2008, the appellant's pension could not have been withheld. 8. In view of above reasons, the impugned order dated 27th November, 2012 permitting the respondent to initiate the departmental proceeding against retired employee of 1996 for passing any order with respect to withholding of the pension or part thereof is quashed. The L.P.A is accordingly allowed.