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2016 DIGILAW 583 (JHR)

Ravindra Prasad v. State of Jharkhand

2016-04-07

PRASHANT KUMAR

body2016
ORDER : Petitioner has filed today, the rejoinder to the counter-affidavit, the same is accepted and kept on record. 2. In this writ application, petitioner has prayed for quashing the entire departmental proceeding initiated against the petitioner vide Resolution No. 4409 dated 19.05.2014 issued by the Deputy Secretary, Government of Jharkhand, Department of Personnel, Administrative Reform & Rajbhasa. 3. It appears that petitioner was a member of Jharkhand Administrative Service and he retired from service on 28.02.2013 from the post of Joint Secretary, Department of Forest and Environment, Government of Jharkhand, Ranchi. It is stated that after one year of retirement, the impugned departmental proceeding initiated against the petitioner vide resolution No. 4409 dated 19.05.2014 for the misconduct, which took place in between 17.11.2008 to 04.02.2009, while petitioner was posted at Godda on the post of Deputy Development Commissioner. It is stated that as per Rule 43(b) proviso (a)(ii) of the Jharkhand Pension Rules, the department has no power to initiate the departmental proceeding against a retired employee in respect of an event which took place more than four years before the date of institution of such proceeding. It is submitted that since the present departmental proceeding initiated against the petitioner for an event which took place in the financial year 2008-09, therefore, as per Rule 43(b) proviso (a)(ii) of the Jharkhand Pension Rules, the initiation of departmental proceeding is illegal. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the State of Bihar and Others versus Mohd. Idris Ansari reported in A.I.R. 1995 Supreme Court 1853. 4. On the other hand, Mrs. Aparajita Bhardwaj, J.C. to Additional Advocate General submits that as per the explanation attached to the proviso of the aforesaid rule, it is clear that the departmental proceeding will be deemed to be instituted from the date on which the charge served upon the delinquent retired employee. She further submits that from perusal of Annexure-A to the counter-affidavit it is clear that the charge was framed and served upon the petitioner on 11.09.2012. Under the said circumstance Rule 43(b) proviso (a)(ii) of the Jharkhand Pension Rules has no application in this case. Accordingly, learned counsel submits that there is no illegality in the initiation of present departmental proceeding. 5. Having heard the submissions of the parties, I have gone through the record of the case. Under the said circumstance Rule 43(b) proviso (a)(ii) of the Jharkhand Pension Rules has no application in this case. Accordingly, learned counsel submits that there is no illegality in the initiation of present departmental proceeding. 5. Having heard the submissions of the parties, I have gone through the record of the case. Admittedly, petitioner retired from the service on 28.02.2013. It is also stated at Bar that at the time of retirement, petitioner was not under suspension. It then appears that after one year of retirement, departmental proceeding initiated against the petitioner by Annexure-1, for an event which took place in between 17.11.2008 to 04.02.2009. This fact has not been specifically denied by the State in its counter-affidavit. It is also not out of place to mention that the departmental proceeding initiated against the petitioner under Rule 43(b) of the Jharkhand Pension Rules. Thus, I find it appropriate to quote the provisions of Rule 43(b) of the Jharkhand Pension Rules for ready reference. 43(a) ... ... ... ... ... ... It is also not out of place to mention that the departmental proceeding initiated against the petitioner under Rule 43(b) of the Jharkhand Pension Rules. Thus, I find it appropriate to quote the provisions of Rule 43(b) of the Jharkhand Pension Rules for ready reference. 43(a) ... ... ... ... ... ... 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. 6. 6. From bare perusal of the aforesaid provision, it is clear that if no departmental proceeding initiated against the delinquent employee before his retirement, then the State Government has power to initiate departmental proceeding against the employee even after his retirement under the proviso (a) to the aforesaid rule. From perusal of proviso (a) of Rule 43(b) of the Jharkhand Pension Rules, I find that the departmental proceeding can be initiated against a retired employee if the following conditions are fulfilled i.e. (i) the State Government has given its sanction for initiation of a departmental proceeding, (ii) departmental proceeding shall be in respect of an event which took place not more than four years before the institution of such proceeding, (iii) that the said departmental proceeding shall be conducted by an officer appointed by the State Government according to the procedure applicable for other departmental proceeding. 7. Thus, from the aforesaid conditions it is clear that after retirement of an employee the departmental proceeding can be initiated against him only for an event, which took place within four years from the date of initiation of proceeding. Explanation (a) of the aforesaid Rule clearly stipulates that the departmental proceeding shall be deemed to have been instituted when the charge framed against the petitioner are issued to him. 8. In the instant case, it is not in dispute that the departmental proceeding initiated against the petitioner relates to the event, which took place in between 17.11.2008 to 04.02.2009. However, learned counsel for the Respondent-State submits that the charge has already been served upon the petitioner on 11.09.2012, therefore, it will be presumed that the proceeding has already initiated in the year 2012, i.e. within four years from the date of event. Aforesaid submission of learned counsel for the State appears to be misconceived. I have already noticed that the present proceeding initiated under Rule 43(b) of the Jharkhand Pension Rules. It is an admitted position that the petitioner retired on 28.02.2013. Thus, if according to the State Government, departmental proceeding has already been initiated in the year 2012, then the same ought to have been initiated under the Civil Services Rules and not under the Jharkhand Pension Rules. Thus, aforesaid contention of learned counsel for the State is liable to be rejected. 9. Thus, if according to the State Government, departmental proceeding has already been initiated in the year 2012, then the same ought to have been initiated under the Civil Services Rules and not under the Jharkhand Pension Rules. Thus, aforesaid contention of learned counsel for the State is liable to be rejected. 9. From perusal of Annexure-1 it is clear that the departmental proceeding initiated against the petitioner vide resolution No. 4409 dated 19.05. 2014. It further appears from the aforesaid resolution that the charge has been annexed with the aforesaid resolution. Under the said circumstance, in my view charge served upon the petitioner on 19.05. 2014. Thus, as per Explanation (a) attached with the proviso to Rule 43(b), it will be presumed that the departmental proceeding instituted/initiated against the petitioner on 19.05. 2014. Accordingly I find that the departmental proceeding initiated against the petitioner after four years of the happening of the event. Under the said circumstance, in my view, the aforesaid proceeding is against the provision of Rule 43(b) proviso (a)(ii) of the Jharkhand Pension Rules. 10. Similar view has been taken by the Hon'ble Supreme Court in the State of Bihar and Others versus Mohd. Idris Ansari (Supra). 11. In view of the discussions made hereinabove, I allow this writ application and quash the entire departmental proceeding initiated against the petitioner vide Resolution No. 4409 dated 19.05. 2014. 12. Parties shall bear their own costs.