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2017 DIGILAW 1230 (JHR)

Shiv Prasad Singh v. State Of Jharkhand

2017-07-21

APARESH KUMAR SINGH

body2017
JUDGMENT Aparesh Kumar Singh, J. - Heard counsel for the parties. 2. The writ petition relates to a challenge to the reduction of pension of the petitioner to the extent of 50% forever by the impugned order dated 26th November 2010 contained in notification no. 1065 issued by the Animal Husbandry and Fisheries Department (Dairy Development), Government of Jharkhand (Annexure-1). The impugned order contains the decision of the State Government on the departmental proceedings initiated against the petitioner during his service vide resolution no. 262 dated 18th March 2006 when he was posted as District Dairy Development Officer at Sahebganj. As per the charge sheet issued in Form ''Ka'', petitioner had entered into second marriage during the subsistence of his first marriage at the time of entering into service. He concealed this fact at the time of joining service. It was further alleged that he had withdrawn a sum of Rs. 2,10,000/- from his provident fund account in the name of marriage of his daughter. He had wrongly informed the department that the girl was his daughter. He was also alleged to have ill-treated his first wife. The inquiry proceedings culminated in the finding of guilt on two charges i.e. having entered into second marriage during subsistence of his first marriage and having concealed this fact at the time of joining in service as well as making false declaration for withdrawal of the provident fund amount in the name of marriage of his daughter. The 3rd charge was not found to be established. 3. Upon conclusion of the inquiry and submission of the inquiry report through letter dated 12.9.2007, petitioner was served with the second show-cause notice through letter no. 737 dated 8th October 2007. Petitioner furnished reply to the second show-cause notice as well through letter no. 181 dated 16th October 2007 and letter no. 211 dated 10th December 2007 which were found to be unsatisfactory. Petitioner, however, superannuated in the meantime on 31st July 2008 before any decision could be taken in the disciplinary proceedings. The order impugned has been passed after his retirement on consideration of the findings recorded by the Inquiry Officer the reply submitted by the delinquent petitioner to the second show-cause notice by the State Government. The respondent-Government has found the charges established on two counts and held the petitioner guilty of serious misconduct. The order impugned has been passed after his retirement on consideration of the findings recorded by the Inquiry Officer the reply submitted by the delinquent petitioner to the second show-cause notice by the State Government. The respondent-Government has found the charges established on two counts and held the petitioner guilty of serious misconduct. The impugned order has been passed under Rule 43(b) of the Jharkhand Pension Rules after concurrence of the Departmental Minister as well as the Chief Minister of the State. It has also the concurrence of the Jharkhand Public Service Commission. 4. Learned counsel for the petitioner has assailed the order inter alia on two grounds :- (i) that petitioner at the time of entering into service in the year 1971 had already incurred the second marriage with the consent of the first wife. The Bihar Government Servant Conduct Rules, however, came into existence in 1976. Petitioner, therefore, cannot be held guilty of violating of Service Rules at the time of entering into service. Petitioner has also assailed the finding of misrepresentation in the matter of withdrawal from the provident fund account. According to him, the finding that the girl is not his daughter is not correct. Petitioner had adopted the girl and treated her as his own daughter. If the withdrawal is made from the petitioner''s own GPF fund, no loss has been caused to the State Government. (ii) That the impugned order has been passed after his retirement in a proceeding under Rule 43(b) of the Pension Rules in respect of a charge which relates to a period beyond 4 years from the date of his retirement. The proceeding was therefore without jurisdiction. 5. Learned counsel for the petitioner has relied upon a judgment rendered by learned Single Judge of this Court in the case of Ravindra Prasad v. State of Jharkhand & Ors. reported in 2016(3) JBCJ page 30 in respect of the aforesaid submission. 6. Learned counsel for the respondents-State has defended the impugned order. It is contended that the charges have been duly inquired into in a formal disciplinary proceeding after giving due opportunity to the petitioner on the basis of the charge sheet issued on 18th March 2006 during service period of the petitioner. The findings of facts recorded by the Inquiry Officer have not been shown to suffer from any perversity or based on extraneous materials. The findings of facts recorded by the Inquiry Officer have not been shown to suffer from any perversity or based on extraneous materials. The disciplinary proceedings initiated during the service period of a Government employee shall be deemed to have continued even after his retirement in view of the Full Bench judgment rendered by the Hon''ble Patna High Court in the case of Shambhu Saran v. State of Bihar & Ors. in C.W.J.C. No. 1622 of 1990 dated 18th November 1991 reported in 2000(1) PLJR 665 . Learned counsel for the respondents submits that the factum of 2nd marriage is admitted on the part of the petitioner. The Inquiry Officer also in his findings has recorded that petitioner should have brought this fact to the notice of the employer-State Government at the time of entering into service. The act of incurring 2nd marriage by the petitioner is also in violation of section 5 of Hindu Marriage Act. The respondent-State has, therefore, rightly passed an order of reduction of his pension to 50% forever under Rule 43(b) of the Jharkhand Pension Rules. Therefore, there is no infirmity in the impugned order. 7. I have considered the submissions of the counsel for the parties, relevant materials on record and judgments cited on their behalf. 8. As is apparent from the pleadings on record, the petitioner had entered into 2nd marriage during subsistence of the marriage with his first wife. He had also not informed his employer either at the time of entering in service or after coming into force of the Conduct Rules in 1976. The charges relating to misrepresentation and withdrawal of Rs. 2,10,000/- from the provident fund account of the petitioner on the pretext of marriage of his daughter has also been found to be established. Petitioner in the writ petition has also averred at paragraph-16 that he had treated the girl as her own daughter, but there was no intimation to the State Government of any adoption of the girl as his daughter. If the aforesaid charges have been found to be established during course of the disciplinary proceeding, it amounts to serious misconduct on the part of the Government employee. 9. If the aforesaid charges have been found to be established during course of the disciplinary proceeding, it amounts to serious misconduct on the part of the Government employee. 9. The contention of the petitioner that the impugned order should not have been passed after his retirement under the provisions of Rule 43(b) of the Pension Rules as it relates to an event much beyond 4 years from the date of retirement, is also not worthy of acceptance as the disciplinary proceedings were initiated during the service career of the petitioner on 18th March 2006 itself. The same shall be deemed to have continued after his retirement in view of the judgment rendered by learned Full Bench of Patna High Court in the case of Shambhu Saran (supra). Paragraph-12 of the report is quoted hereunder :- "12. In that view of the matter, we answer the reference by holding as follows:- (i) In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary. (ii) The decision of the Division Bench in case of Singeshwari Sahay v. The State of Bihar and others reported in 1979 BBCJ 735 and the law laid down therein were not correctly decided. We answer the reference accordingly." 10. It is also evident that the inquiry report was submitted on 12th September 2007 and petitioner was asked to furnish reply to the second show cause notice on 8th October 2007 during his service career. He had also replied to the second show-cause notice on 16th October 2007 and 10th December 2007. After his retirement it is the State Government which has taken decision under Rule-43(b) inflicting the punishment of reduction of 50% pension forever. Therefore, on all counts the petitioner has failed to make out any case for interference in the impugned order. Accordingly, the writ petition is dismissed.