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2015 DIGILAW 137 (JHR)

Quamruddin v. State of Jharkhand

2015-01-30

SUJIT NARAYAN PRASAD

body2015
ORDER The petitioner has challenged the order as contained in memo no. 1542 dated 19.2.2014 by which the decision has been taken to deduct 5% amount from the pension of the petitioner. 2. Heard the parties and perused the record. 3. The submission has been made on behalf of the learned counsel for the petitioner that he had joined government service on 14.4.1972 on the post of E.A. and after rendering continuous and satisfactory service of about 34 years retired as Chief Engineer, I.F. & P.I. Deptt. Ranchi on 30.11.2006 while working under the Water Resources Department, Government of Jharkhand. 4. After retirement, the pension of the petitioner was fixed and he started receiving his pension from Sachivalaya Treasury, Sinchai Bhawan, Patna. 5. No departmental proceeding was ever initiated against the petitioner while he was in service. The petitioner received a copy of the resolution as contained in Memo No.2710 dated 28.7.2009 issued under the signature of under Secretary, Water Resources Department, Government of Jharkhand wherein the decision to initiate departmental enquiry against the petitioner was taken to be initiated under Rule 43(b) of the Pension Rules. Accordingly, petitioner was directed to submit his defense reply within two weeks. The memorandum of charge dated 27.7.2009 was enclosed wherein the allegation was leveled against the petitioner for commission of financial irregularities in the matter of construction of Dam Sone Eastern Canal. 6. The learned counsel for the petitioner submitted that the petitioner since retired 30.11.2006. The alleged occurrence took place on 29.3.2004 during his posting between 17.2.2004 to 9.10.2004 which the petitioner has stated in reply to his show cause and as such submission has been made that the cause of action is barred by limitation for 4 years as provided under proviso (a)(ii) to Rule 43(b) of the Pension Rules. 7. The submission has been made on behalf of the learned counsel for the petitioner that the proceeding under Rule 43(b) can only be initiated within the period of 4 years from the date of proceeding. But in the instant case, alleged occurrence took place in the year 2004 and as such the same is barred by the limitation i.e. 4 years as provided under Rule 43(b) proviso (a)(ii) of Pension Rules. 8. But in the instant case, alleged occurrence took place in the year 2004 and as such the same is barred by the limitation i.e. 4 years as provided under Rule 43(b) proviso (a)(ii) of Pension Rules. 8. The further submission has been made on behalf of the learned counsel for the petitioner that he had also objected before the inquiry officer regarding maintainability of the entire proceeding and the inquiry officer has also accepted the reply by giving its opinion that in view of the provision as contained in Rule 43(b) proviso (a)(ii), this proceeding is not maintainable and thereafter the matter has been referred by the conducting officer before the disciplinary authority for taking an appropriate decision in this regard. 9. Further submission has been made by the learned counsel for the petitioner that the impugned order dated 19.2.2014 is otherwise also bad because the disciplinary authority had imposed punishment dated 19.2.2014 without application of mind therein because enquiry officer has not given any finding regarding proving of guilt and the decision has been taken to deduct 5% amount of pension. 10. Learned counsel for the petitioner has submitted by referring to the inquiry report which has been annexed by State respondent that the inquiry officer has not given any opinion on the merit of the case and in absence of any opinion, the finding of the disciplinary authority that the inquiry report has thoroughly been examined at the department level suggest that the disciplinary authority has not applied its mind and gone beyond the record. 11. Learned counsel for the respondent has submitted that the nature of allegation against the petitioner is serious but he has not disputed the settled proposition of law regarding the initiation of proceeding beyond the period of 4 years from the date of incidence. 12. 11. Learned counsel for the respondent has submitted that the nature of allegation against the petitioner is serious but he has not disputed the settled proposition of law regarding the initiation of proceeding beyond the period of 4 years from the date of incidence. 12. Hence In order to decide the issue, it is necessary to see the provision of Rule 43(b) of Bihar Pension Rules, 1950 which is quoted herein 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 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 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. 13. From the perusal of record it appears that cause of action as per the memorandum of charge and the reply given by the petitioner in terms of the show cause notice appears to be arose between 17.2.2004 to 9.10.2004. The departmental proceeding was initiated on 28.7.2009 as would evident from Annexure-1 annexed to the writ petition. 14. As per the provision as contained in Rule 43(b) proviso (a)(ii), the disciplinary authority can initiate departmental proceeding under Rule 43(b) in respect of event which took place within 4 years from the date of institution of proceeding. 15. The departmental proceeding was initiated on 28.7.2009 as would evident from Annexure-1 annexed to the writ petition. 14. As per the provision as contained in Rule 43(b) proviso (a)(ii), the disciplinary authority can initiate departmental proceeding under Rule 43(b) in respect of event which took place within 4 years from the date of institution of proceeding. 15. Further in view of explanation under Rule 43(b) where in at explanation-(a), it has been stated that the 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. 16. In view of the explanation as cited hereinabove, in the present case the departmental proceeding is said to have been initiated only with effect from 27.7.2009 i.e. when the memorandum of charge was issued or on 28.7.2009 i.e. when resolution was passed for initiating departmental enquiry. Hence, the memorandum of charge was issued, admittedly after period of 4 years from the date of alleged occurrence i.e. on 29.3.2004 whereas resolution pertaining to such memorandum of charge was passed on 28.7.2009. 17. But upon perusal of memorandum of charge wherein the year of charge has been mentioned as 2003-04 and 2004-05 then even if the date given in the memo is taken to be true then also the financial year of the 2005 will end on 31st March, which is beyond 4 years from the date of institution of such proceeding. 18. So far as the enquiry report is concerned, the inquiry officer in its conclusion has referred the date of occurrence 17.2.2004 to 19.10.2004. Hence the period of occurrence admittedly is beyond the period of 4 years from the date of institution of departmental proceedings. 19. In this regard, the judgment rendered in the case of State of Bihar & Others Vs. Mohd. Idris Ansari, 1995 Supp (3) SCC 56 needs to be referred wherein at paragraph nos. 9 and 10 the scope of the 43(b) has been discussed which is being quoted herein-below:- 9. So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired government servant or not in the circumstances contemplated by the rule. 9 and 10 the scope of the 43(b) has been discussed which is being quoted herein-below:- 9. So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired government servant or not in the circumstances contemplated by the rule. The first circumstance is that if the service of the government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of the government servant concerned while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revisional power has to be exercised in consonance with the principles of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first time. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture: 1. A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory. 2. Even if the service record of the officer concerned is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct of the officer concerned during his service tenure, the State Government can exercise revisional power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond that period. 10. 10. So far as the second type of cases are concerned the proof of grave misconduct on the part of the government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 31-1-1993 and the show-cause notice was issued on the ground of grave misconduct on 27-9-1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore, to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27-9-1993 meaning thereby it should have been committed during the period from 26-9-1989 up to 31-1-1993 when the respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139(a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27-9-1993 invoking powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show-cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13-12-1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after the expiry of four years from 1986-87, as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the show-cause notice dated 27-9-1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed. There is no order as to costs. 20. If the facts of the present case of the petitioner compared with the facts of the case of Mohd. Idris Ansari (supra) both are identical. Hence, in view of settled legal aspect as discussed above, I find support in the contention raised by learned counsel for the petitioner. 21. So far as the other contention that the disciplinary authority has not applied its mind I find force in the submission of learned counsel for the petitioner. 22. On the perusal of impugned order dated 19.2.2014 wherein the reference has been given that the finding given by the conducting officer has thoroughly been examined as on department level and thereafter the decision has been taken to deduct 5% amount of pension. 23. From perusal of the inquiry report, in its conclusive part, I find that the inquiry officer has not gone into the merit of the case rather the inquiry officer has only considered the objection raised by the petitioner with respect to maintainability of the departmental proceeding under Rule 43(b) proviso (a)(ii) of Bihar Pension Rules and came to the finding that departmental proceeding is not maintainable. Thereafter inquiry officer has referred the matter before the department to take appropriate decision in this regard. 24. I find support in the argument advanced by learned counsel for the petitioner taking into account the legal position as well as factual position. 25. Accordingly, the impugned order dated 19.2.2014 is not sustainable and the same is, hereby, quashed. 26. Thereafter inquiry officer has referred the matter before the department to take appropriate decision in this regard. 24. I find support in the argument advanced by learned counsel for the petitioner taking into account the legal position as well as factual position. 25. Accordingly, the impugned order dated 19.2.2014 is not sustainable and the same is, hereby, quashed. 26. The respondents are directed to release all consequential benefits to the petitioner forthwith. 27. Accordingly, this writ petition is allowed.