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2016 DIGILAW 802 (JHR)

Ram Sewak Sahu v. State of Jharkhand

2016-05-06

APARESH KUMAR SINGH

body2016
ORDER : Aparesh Kumar Singh, J. Heard learned counsel for the parties. 2. Petitioner superannuated on 31.3.1996 as Clerk from the Treasury Office, Doranda. He was prosecuted in connection with R.C. Case No. 53(A)/96 and sentenced to 4 years of imprisonment along with fine of Rs.20,000/- vide judgment dated 30.6.2009 passed by the learned Special Judge, C.B.I, Ranchi. Petitioner has preferred criminal appeal being Cr. Appeal(SJ) No. 648 of 2009, which is said to be pending and he has been enlarged on bail. By the impugned order at Annexure-4 dated 3.11.2009, the Additional Finance Commissioner, Government of Jharkhand has directed the Treasury Officer, Secretariat, Doranda, Ranchi to stop payment to the petitioner and one other employee, both of whom have been convicted up to the Apex Court and who have been directed to be removed from service and amount paid, if any was directed to be recovered. 3. This has been assailed by the petitioner on the grounds that no notice has been issued before withholding the pensionary dues of the petitioner purportedly in exercise of the power under Rule 43(a) of the Jharkhand Pension Rules. This fact has not been specifically controverted by the respondents in their counter affidavit. They have submitted that the decision to withhold the pensionary dues of the petitioner are on account of his conviction in the criminal case, relying upon Rule 43(a) of the Jharkhand Pension Rules. 4. Having heard learned counsel for the parties and having considered the relevant pleadings on record including the provisions of Rule 43(a) of the Jharkhand Pension Rules, it is evident that the impugned decision has been taken without service of any notice on the petitioner, though it entails adverse consequences. 5. The position of law, so far as requirement of notice under relevant rule 43(a) of the Jharkhand Pension Rules stands declared by the judgment rendered by this Court in the case of Bal Krishna Dubey v. State of Jharkhand & others in W.P.S. No. 1656 of 2009 dated 11.11.2009. While dealing with the similar issue, learned Single Bench of this Court after noticing the provisions of Rule 43(a) of the Jharkhand Pension Rules, held has follows :- "The source of such power on part of the Government has been attributed in the counter-affidavit to Rule 43. The said Rule is reproduced in its entirety below, for ready reference. While dealing with the similar issue, learned Single Bench of this Court after noticing the provisions of Rule 43(a) of the Jharkhand Pension Rules, held has follows :- "The source of such power on part of the Government has been attributed in the counter-affidavit to Rule 43. The said Rule is reproduced in its entirety below, for ready reference. 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 petitioner 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. (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 cause 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 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 Commissioner, 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. It would appear from the said Rule that upon a conviction of an employee by a criminal court for a serious crime, the Government has multiple choices namely to withhold or not to withhold the pension, to withdraw or not withdraw the pension, to withhold or withdraw not the whole but the part of the pension. When the authority concerned has multiple choices under the Rule and each of those choices is likely to adversely affect the employee in a different manner, and when the principles of natural justice are not expressly excluded by statute, the said principles would require an opportunity of hearing to be afforded to the employee concerned before the decision is taken causing an adverse affect upon the employee. In the present case, no such opportunity has been afforded. The decision is vitiated on account of violation of principles of natural justice." The said judgment is followed in the case of Rajendra Prasad v. the State of Jharkhand & others in W.P.S. No. 1764 of 2012 vide judgment dated 23.4.2014 as also in the case of Ashokanand Prasad v. State of Jharkhand & others in W.P.S. No. 3636 of 2009 vide judgment dated 30.7.2014. 6. The impugned order at Annexure-4 dated 3.11.2009 therefore, cannot survive the test of legal scrutiny and is accordingly, quashed. However, it is left open to the respondent-State to take a fresh decision in accordance with law. The writ petition is allowed in the aforesaid manner.