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2020 DIGILAW 449 (JHR)

Madan Lal Das v. State of Jharkhand

2020-03-06

S.N.PATHAK

body2020
JUDGMENT : The petitioner has approached this Court for quashing of Resolution contained in Memo No.66 dated 03.01.2017 (Annexure-7) issued by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Govt. of Jharkhand, whereby 10 % of the pension of the petitioner has been ordered to be deducted for the period of 5 years in exercise of power conferred under Rule 139 (C) of the Jharkhand Pension Rule. 2. The factual exposition as has been delineated in the writ petition is that the petitioner was appointed on due recommendation of Bihar Public Service Commission and joined as a member of Bihar Administrative Service on 30.06.1979 and retired from the services on 31.05.2010 from the post of Joint Secretary, Backward Class Commission, Jharkhand after completion of more than 31 years of satisfactory service under the respondents. During the service period, no departmental proceeding or any other proceeding was ever initiated against the petitioner. But, surprisingly after 5 years of retirement, the petitioner has been served ‘Prapatra K’ vide Memo No. 9264 dated 23.10.2015 by the Deputy Secretary Department of Personnel, Administrative Reforms and Rajbhasa, Govt. of Jharkhand along with Letter No. 528 (ii) dated 04.07.2015. Pursuant thereto, the petitioner had filed reply on 04.11.2015 stating therein that the Memorandum of Understanding related to project was signed by the then Deputy Commissioner, Gumla namely Smt. Anuradha Pataink, IAS, presently posted as Secretary, Department of School Education and Literacy, Jharkhand but no explanation has been asked from her rather the explanation has been asked from the junior officers like the petitioner and one Mr. Baldeo Raj, Director, DRDA, Gumla. Further, issuance of Paptra ‘K’ by the respondents, after 5 years of retirement of the petitioner under Rule 139 (C) of the Jharkhand Pension Rule, is not maintainable in the eyes of law. It is further the case of the petitioner that subsequently, the respondents have passed impugned order dated 03.01.2017 under provision of Rule 139 (C) of the Jharkhand Pension Rule without considering the reply filed by him, whereby 10 % of the pension of the petitioner has been ordered to be deducted for 5 years. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court. 3. Mr. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court. 3. Mr. Deepak Kumar Prasad, learned counsel appearing on behalf of the petitioners submits that the action of the respondents for deduction of 10 % of pension for 5 years is wholly illegal, arbitrary and in violation of 139 (C) of the Jharkhand Pension Rule. The incident took place in the year, 2007 and till the superannuation, no show cause explanation has been asked from the petitioner and after 5 years of retirement, a show cause notice is issued to him under Rule 139 (C) of the Bihar Pension Rule, which is not tenable in the eyes of law. Learned counsel further submits that even a show cause notice is not issued to then Deputy Commissioner, Gumla presently working as Secretary, Department of School Education and Literacy, Govt. of Jharkhand, who is the signatory of sais MoU, therefore the respondents have not followed the principal of parity. The Petitioner had been lastly promoted to the post of Joint Secretary, Govt. of Jharkhand in the year, 2009 and as such, it can be comfortably said that his service has remained satisfactory all along his entire career. The provision of Rule 139 (C) of the Bihar Pension Rule is not applicable in the instant case as Rule 139 (C) of the said Rule provides that no such power shall be exercised after the expiry of 3 years from the date of order of sanctioning the pension was first passed and as such, the impugned order dated 03.01.2017 is fit to be quashed and set aside. He places heavy reliance on a judgment of this Court in case of Lawlesh Sharma Vs. The Jharkhand State Electricity Board & Ors. in W.P.(S) No.6413 of 2011 and submits that the case of the petitioner is squarely covered by this case. 4. Per contra, counter-affidavit has been filed. Mrs. Chaitali Chatterjee Sinha, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that before passing of impugned order, a show cause vide Memo No. 9264 dated 23.10.2015 was issued to the petitioner and reply of the petitioner was also considered by the Deputy Commissioner and it was found that reply of the petitioner is not satisfactory. Thereafter, the reply and report of the Deputy Commissioner, Gumla was examined by the respondents and Departmental Authorities came to the conclusion that the charges leveled against the petitioner for making payment of huge amount to one private NGO without following the MANREGA guidelines and violating the Government norms is found proved and as such, a decision has been taken by the respondents for imposing punishment of deduction of 10 % pension of the petitioner for a period of 5 years under Rule 139 (C) of the Bihar Pension rules, 1950. So far as the contention of the learned counsel for the petitioner that order of punishment is time barred, is concerned, the petitioner has wrongly stated that pension of the petitioner was finalized on 16.03.2011, whereas on this date only the provisional pension of the petitioner was sanctioned and it was finalized vide Memo No. 10474 dated 29.10.2013 and as such, since the proceeding was initiated against the petitioner on 23.10.2015 and the final pension sanctioned to the petitioner was on 29.10.2013, the order of punishment comes within the purview of Rule 139 (C) of the Jharkhand Pension Rule. 5. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no case is made out for interference for the following facts and reasons: i. The State was fully empowered for revision of pension under Rule 139 (C) of the Pension Rule. Rule 139 (C) of the Bihar/Jharkhand Pension Rule reads as under: The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed. No such power shall however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed. From perusal of the aforesaid Rule, it transpires that same cannot be exercised without giving the pensioner reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension and after the expiry of three years from the date of order sanctioning the pension was prior passed. ii. The petitioner was issued notice on 23.10.2015 accompanied by Prapatra ‘K’, which was replied by the petitioner on 04.11.2015 and as such, ample opportunity was given to the petitioner to place his case before the respondents. iii. There was proof of grave misconduct on his part while in service as allegations were found to be proved. iv. The order of final pension was issued on 29.10.2013 and proceeding was initiated on 23.10.2015 and as such, very comfortably, it can be that same comes under the purview of 139 (C) of Pension Rule. v. The contention of the learned counsel for the petitioner regarding limitation period i.e. beyond three years from the date of issuance of provisional pension is not acceptable to this Court rather same is misconceived. vi. Further, the order of forfeiting the pension amount has been passed after full-fledged enquiry in which the petitioner has participated and as such, same cannot be said to be bad in law. vii. The case relied by the learned counsel for the petitioner is of no help to him as the same has not been passed in consonance with Rule 139 (C) of the Pension Rule. 6. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, I find no illegality or infirmity in the impugned order and as such, no interference is warranted in the instant case. Resultantly, writ petition merits dismissal.