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Jharkhand High Court · body

2019 DIGILAW 798 (JHR)

Upendra Narayan Singh v. State of Jharkhand

2019-04-03

ANANDA SEN

body2019
ORDER : 1. Petitioner, in this writ application, has prayed for quashing the Notification No. 2609(S) dated 25.04.2016 (Annexure-17), issued under the signature of the Joint Secretary, Road Construction Department, Jharkhand, Ranchi whereby and whereunder the respondents have reduced the pension of the petitioner by 5%, for three years under Rule 139 (C) of the Jharkhand Pension Rules, illegally after five years of his superannuation. He has also prayed for a direction upon the respondents to decide about the salary of the petitioner, payable to him in terms of Rule 97 of Jharkhand Service Code as directed by this Hon’ble Court in the final order, passed in CWJC No. 2161 of 2001. 2. The petitioner was initially appointed on 03.07.1987 as Assistant Engineer in Road Construction Department. He superannuated on 30.07.2010. The services of the petitioner were regularized, in view of the direction given by the Hon’ble Supreme Court on 23.04.2014 in Civil Appeal No. 4809 of 2014, w.e.f. 03.08.1987 vide order dated 15.09.2014. During service tenure, the petitioner was suspended by the State of Bihar vide Notification No. 1668(S) dated 08.03.1999 and a departmental proceeding was initiated. The suspension was later on revoked. Vide order dated 23.03.2001, a punishment was imposed upon the petitioner and it was directed to recover Rs. 15,185/-and further order was passed that the petitioner will not receive any salary for the period of suspension. Said order was challenged by the petitioner in a writ application being CWJC No. 2161 of 2001, which was disposed of on 07.08.2001. This Hon’ble Court set aside the order of punishment dated 23.03.2001 after holding the same being without jurisdiction and having been issued without differing with the finding of the Inquiry Officer. The case was remitted to the Secretary, Road Construction Department, to decide as to what salary the petitioner will be entitled, in terms of the Rule 97 of the Jharkhand Service Code. Pursuant to the said order, the petitioner requested the respondents to take a decision about the salary of the petitioner and also prayed for refund of Rs. 15185/-, which was recovered by the respondents. No action was taken by the respondents and the application of the petitioner was kept pending. In the meantime, a Memo no. Pursuant to the said order, the petitioner requested the respondents to take a decision about the salary of the petitioner and also prayed for refund of Rs. 15185/-, which was recovered by the respondents. No action was taken by the respondents and the application of the petitioner was kept pending. In the meantime, a Memo no. 7747(S) dated 12.11.2015, was issued by the Deputy Secretary, Road Construction Department, asking the petitioner to submit a reply as to why not appropriate action be taken to revise the pension of the petitioner as the petitioner has committed illegality while he was in service. The allegation against the petitioner was the same, for which the petitioner was earlier proceeded against and the impugned order of punishment was set aside by this Court. The petitioner filed a detailed reply. Considering the reply, the respondents passed the impugned order dated 25.04.2016, taking a decision to withhold 5% of the pension of the petitioner for a period of three years for the alleged misconduct. This order has been passed in terms of Rule 139(C) of the Jharkhand Pension Rules. The petitioner has challenged the aforesaid order. 3. Learned counsel appearing for the petitioner submits that when this Hon’ble Court in CWJC No. 2161 of 2001 had quashed the entire proceedings, the respondents’ authority had got no jurisdiction to punish the petitioner on the self same ground and facts that too after 15 years of the decision passed in the writ application. He submits that the notice, which was issued to the petitioner is date 12.11.2015, i.e. after more than 15-16 years of the alleged misconduct and after a gap of 16 years, no such proceeding could have been initiated against the petitioner. He submits that the impugned order is absolutely bad and is liable to be set aside. 4. Learned counsel appearing for the respondents opposes the prayer made in the writ application and relying upon the counter affidavit, submits that all the procedure have been followed and after giving a notice to the petitioner, the order was passed. He submits that the approval was also accorded for the punishment, which is stoppage of 5% of pension for a period of three years. He further submits that the order was passed under Rule 139(C) of the Jharkhand Pension Rules and no fault can be found with the said order. 5. He submits that the approval was also accorded for the punishment, which is stoppage of 5% of pension for a period of three years. He further submits that the order was passed under Rule 139(C) of the Jharkhand Pension Rules and no fault can be found with the said order. 5. After hearing the parties, I find that there was an allegation against this petitioner for which the petitioner was suspended and thereafter, a proceeding was initiated in the year 1999-2000. The punishment was also imposed on the petitioner, which directed recovery to the tune of Rs. 15185/-. Further, there was an order that the petitioner will not receive any salary for the period of suspension. The order of punishment was set aside by this Court vide order passed in CWJC No. 2161 of 2001. This Court while passing the said order remitted the case to the Secretary to decide as to what salary this petitioner is entitled to under the law in terms of Rule 97 of the Jharkhand Service Code, taking into consideration the finding given by the Inquiry Officer. Thus, the remand was for a limited purpose. The respondents did not pass any order nor initiated any proceeding immediately, rather on 12.11.2015, i.e. after more than 14 years they issued a show cause notice to the petitioner purported to be one under Rule 139 (C) of the Jharkhand Pension Rules. Final order was passed wherein it was decided to stop 5% pension of the petitioner for a period of three years. 6. Rule 139 (C) gives power to the State Government to revise the order relating to pension, if they are satisfied that the service of the petitioner was not thoroughly satisfactory or there was proof of grave misconduct on his part while in service. 7. In this case, I find that in the departmental proceeding, which was initiated in the year 2000, the Inquiry Officer exonerated the petitioner having found him not guilty. The earlier order passed in CWJC No. 2161 of 2001, shows that there was nothing on record to suggest that the Disciplinary Authority differed with the finding of the Inquiry Officer. Without differing with the finding and without issuing show cause, the punishment order was passed, which was set aside by this Court on 07.08.2001. The earlier order passed in CWJC No. 2161 of 2001, shows that there was nothing on record to suggest that the Disciplinary Authority differed with the finding of the Inquiry Officer. Without differing with the finding and without issuing show cause, the punishment order was passed, which was set aside by this Court on 07.08.2001. After 15 years, this notice under Rule 139 (C) of the Jharkhand Pension Rules was issued upon the petitioner. 8. There are two conditions laid down for invoking Rule 139 (C); (i) that the service of the pensioner was not thoroughly satisfactory. (ii) There was proof of grave misconduct on his part while in service. The evidence of anyone of the aforesaid two will attract Rule 139(C) of the Jharkhand Pension Rules. 9. In this case, I find that the State was harping upon the conduct of the petitioner, which already stood tested in CWJC No. 2161 of 2001. The Inquiry Officer exonerated him but without following the procedure, the petitioner was suspended. Thus, the entire actions of the respondents were declared illegal and the punishment order was set aside. When the punishment order has already been set aside, the respondents cannot take shelter of the same misconduct to invoke the provision of Rule 139(C). Further, I find that the impugned order mentions that for “proved misconduct”, 5 % pension for a period of three years is withheld. I find that there is nothing on record to suggest that as to what is the misconduct, which has been proved by the department. The Inquiry Officer did not find that the petitioner committed any misconduct. Admittedly, there are no fresh materials nor any inquiry was held to come to the aforesaid conclusion. 10. Thus, I find that the conclusion that the petitioner has committed proved misconduct is beyond any materials on record. The respondents could not have concluded that the petitioner has committed misconduct in view of the facts, mentioned above. Thus, I find that none of the conditions prescribed in Rule 139(C) is attracted in this case to withhold the pension of the petitioner. 11. Thus, the impugned order dated 25.04.2016 is absolutely bad and the same is liable to be quashed. The impugned order is hereby quashed. 12. I find that the respondents have not taken any decision in terms of the direction passed by this Court in CWJC No. 2161 of 2001. 11. Thus, the impugned order dated 25.04.2016 is absolutely bad and the same is liable to be quashed. The impugned order is hereby quashed. 12. I find that the respondents have not taken any decision in terms of the direction passed by this Court in CWJC No. 2161 of 2001. The respondents are thus, directed to take a decision as to what amount is payable to the petitioner in respect of salary in terms of Rule 97 of the Bihar/Jharkhand Service Code. 13. This writ application thus stands allowed.