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2016 DIGILAW 846 (JHR)

Baneshwar Rabidas v. State of Jharkhand

2016-05-16

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents to sanction and provide full pension, full gratuity, leave encashment after restoring two increments of the year 2011 and 2012 and for quashing of the impugned show cause notice dated 21.01.2014 issued under Rule 43(b) of the Jharkhand Pension Rule and also for quashing the order dated 20.03.2015 whereby an amount of 5 % from the pension amount of the petitioner is decided to be deducted/withheld. 2. Sans details, the facts as disclosed in the writ application is that the petitioner while posted as Executive Engineer, Water Ways Division, Hazaribagh, up-to the Financial Year 2006-07, construction of four numbers of building under Bhairwa Reservoir Scheme K-Building was sanctioned and the petitioner was directed to get the said work executed departmentally. It has been averred that in the light of the directions given by the competent authority, the petitioner authorized the Assistant Engineer of the concerned Division to do the work and the petitioner pursuant to a departmental order was given charge of Superintending Engineer. It has further been averred that after completion of the work, the accounts were sent for the audit to the Accountant General, Jharkhand, where a query was made regarding actual execution of the work. It has been averred that in the garb of the query made by the Accountant General (Audit), Jharkhand, a departmental proceeding was initiated against the petitioner, which culminated to imposition of punishment vide memo dated 07.09.2010 of stoppage of two annual increments with cumulative effect as well as the petitioner not to be deemed fit for promotion for two years from the date of entitlement. Being aggrieved, the petitioner moved before this Hon'ble Court by way of filing W.P. (S) No. 4058 of 2012, which was allowed vide order dated 07.05.2013 and the impugned order of punishment dated 07.09.2010 was quashed, however, liberty was given to the respondents to proceed afresh against the petitioner, if there is sufficient ground, in accordance with law. 3. Learned counsel for the petitioner submitted that the petitioner got superannuated on 30.04.2013 from the post of Chief Engineer and the petitioner is entitled to get arrears of salary so accrued in view of the quashing of punishment order dated 07.09.2010 and also the entire retiral benefits. 4. 3. Learned counsel for the petitioner submitted that the petitioner got superannuated on 30.04.2013 from the post of Chief Engineer and the petitioner is entitled to get arrears of salary so accrued in view of the quashing of punishment order dated 07.09.2010 and also the entire retiral benefits. 4. But to the utter surprise and dismay, instead of sanctioning and granting retirement benefits, after eight months of retirement, a show cause notice dated 21.01.2014 was issued by the respondents under Rule 43(b) of the Jharkhand Pension Rules. It has further been submitted that during pendency of the writ application, the respondents have passed a punishment order dated 20.03.2015, by which, 5 % amount from the pension of the petitioner is decided to be deducted. 5. Learned counsel for the petitioner submitted that the impugned order dated 20.03.2015 has been passed only after considering the enquiry report submitted by the enquiry officer and basing on the same enquiry report, the earlier order of punishment dated 7.09.2010 has been quashed by this Court vide order dated 5.5.2013 (Annexure 3). Learned counsel for the petitioner further submitted that the impugned punishment dated 20.03.2015 is a major punishment and the procedure for imposing major punishment has not been followed in awarding the said punishment. Learned counsel for the petitioner further submitted that there was a denial of right of representation to which the petitioner is entitled to in accordance with Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. Learned counsel for the petitioner further submits that show cause notice dated 21.01.2014 issued under Rule 43(b) of the Jharkhand Pension Rules issued on the point of punishment was per se illegal since order dated 20.03.2015 does not indicate that the reply to the said show cause notice submitted by the petitioner dated 20.02.2014 has been considered and moreover, the JPSC has not been consulted before the impugned order dated 20.03.2015 was passed. Furthermore, the impugned order suffers from non-application of mind, which is quite evident from the said order wherein it has been mentioned that the departmental proceeding was conducted for the charge of causing financial loss to the Government whereas there was no such charge nor any finding to that effect has been given by the enquiry officer. Furthermore, the impugned order suffers from non-application of mind, which is quite evident from the said order wherein it has been mentioned that the departmental proceeding was conducted for the charge of causing financial loss to the Government whereas there was no such charge nor any finding to that effect has been given by the enquiry officer. Learned counsel for the petitioner further submits that the respondents have adopted a summary procedure and procedure for imposing major punishment has not been followed. Further no second show cause has been issued and there was denial of right of representation. 6. Mr. Kumar Harsh, J.C to S.C. II, appearing for the respondents submitted that in compliance of the directions given by Hon'ble Court in order dated 07.05.2012 passed in W.P. (S) No. 4058 of 2012, the respondents have quashed the punishment order dated 07.09.2010. However, in the light of liberty granted to the respondents in the order dated 07.05.2012 and considering the misconduct and gravity of irregularities, a second show cause notice was issued to the petitioner while the petitioner was in active service vide memo dated 21.01.2014, to which, the petitioner responded vide letter dated 12.07.2014, which was carefully examined and scrutinized at department level and it was observed that no new ground has been submitted in defense of the charges levelled against the petitioner and finally vide memo dated 20.03.2015 bare minimum minor punishment has been imposed. It has further been submitted that punishment being a bare minimum, does not require the consultation of Jharkhand Public Service Commission. 7. Learned counsel for the respondents further submitted that so far as grant of post retiral benefit such as final pension/gratuity and 40 % commutation of pension as well as leave salary encashment is concerned, the same has been sanctioned and forwarded to the Accountant General, Jharkhand for issuance of authority slip for payment in favour of petitioner. 8. Having given my anxious consideration to the rivalized submissions of the respective parties, I am of the considered view that the impugned order dated 20.03.2015 pertaining to imposing of punishment of withdrawal of 5 % pension under Rule 43(b) of the Jharkhand Pension Rules suffers from the following infirmities: (i) After the threadbare analysis of the enquiry report, there is no shadow of doubt or debate that out of ten charges, charges at column nos. 3, 4, 8 (ii), 9 and 10 have been partially proved; whereas charges at column nos. 1, 2, 8(i), 8(iii), 8(iv), 8(v), 8(vi), 8(viii) and 8(ix) appear to have been proved. But from none of the proved charges, there is any indication of pecuniary loss to the State exchequer by the omissions and commissions of the petitioner. On that score, Rule 43(b) of the Jharkhand Pension Rule is remotely attracted. (ii) As per Rule 43(b) of the Jharkhand Pension Rule, one of the ground of withholding of pension is grave misconduct. Admittedly, the petitioner has not been fully exonerated from the charges but the proved charges do not appear to be so grave so as to entail forfeiture of pension. No doubt the petitioner in exercise of his official duty acted contrary to Government codal provisions, Rules and Regulations and there has been some irregularities but those dereliction of duties cannot be construed to constitute offence of grave misconduct so as to put the petitioner to the detriment so as to violative of Article 300-A of the Constitution of India. Notwithstanding the grounds stated in the preceding paragraphs, Provisions of Jharkhand Pension Rules has not been scrupulously followed, which has rendered the proceeding invalid. 9. In view of the aforesaid facts and reasons as discussed in the foregoing paragraphs, the impugned order dated 20.03.2015 is hereby quashed and set aside. The respondents are directed to pay the admissible pension to the petitioner forthwith. So far as arrears of pension on account of deduction of 5% pension is concerned, the respondents are directed to pay the same within a period of 16 weeks from the date of receipt/production of copy of this order. 10. With the aforesaid observations and directions, the writ petition stands disposed of.