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2022 DIGILAW 994 (JHR)

Deo Darshan Singh v. State of Jharkhand

2022-08-08

S.N.PATHAK

body2022
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the Memo No. 333/2004, dated 17.05.2017 and Prapatra ‘Ka’ issued by respondent No. 3, pertaining to initiation of departmental proceeding against the petitioner invoking provision of Rule-43(b) of the of Jharkhand Pension Rules. Further prayer has been made for a declaration that the terms of Memo No. 333/2004, dated 17.05.2017 and Prapatra ‘Ka’ issued under the signature of respondent No. 3, is wholly illegal and without jurisdiction. 3. As per the factual matrix, the petitioner was appointed as Assistant Engineer under the Water Resources Department on 25.01.1979 and thereafter, on attaining the age of superannuation, he retired on 31.01.2011, from the post of Assistant Engineer, Rural Development Special Division, Hazaribagh. In his entire service career of 30 long years, he worked to the full satisfaction of his Superior Authority and no complaint whatsoever has ever been made against him. After his retirement, the office of the Accountant General (A&E), Jharkhand issued “No Demand Certificate” to the petitioner. It is the case of the petitioner that after lapse of more than six years from the date of his retirement, the respondent No. 3 issued a resolution contained in Memo No. 333/2004, dated 17.05.2017, wherein a decision has been taken to initiate departmental proceeding against the petitioner invoking provision of Rule-43(b) of the Jharkhand Pension Rules. Petitioner was served with the resolution, along with Prapatra ‘Ka’ alleging therein that because the petitioner was not careful in supervising the bridge's construction, the P1 and P2 foundations of the bridge tilted to one side, causing the State Government to incur significant financial losses. It is the petitioner's specific case that the respondent-authorities are well aware that the petitioner was not posted and working as Executive Engineer at the time foundation works were completed, but the petitioner has been issued a memo of charges. Hence, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. 4. Learned counsel appearing for the petitioner submits that the petitioner has superannuated from service on 31.01.2011 and decision to initiate departmental proceeding was taken on 17.05.2017, meaning thereby the government has decided to initiate departmental proceeding against the petitioner after more than six years from the date of his retirement. 4. Learned counsel appearing for the petitioner submits that the petitioner has superannuated from service on 31.01.2011 and decision to initiate departmental proceeding was taken on 17.05.2017, meaning thereby the government has decided to initiate departmental proceeding against the petitioner after more than six years from the date of his retirement. On perusal of proviso to Rule-43(b) of the Jharkhand Pension Rules, it is manifestly clear that a bar is put on initiation of departmental proceeding with respect to an event which took place four years prior to the date of retirement of an employee and in view of specific bar imposed by the statute the respondent-authorities have committed error in law by initiating the departmental proceeding against the petitioner. The issue is no more res integra in view of decision of the Hon’ble Apex Court in case of State of Bihar and Others vs. Mohd Idris Ansari, 1995 Supp. (3) SCC 56. This Court also in several decisions has held that fresh departmental proceeding could not be initiated after lapse of four year from date of retirement. Recently, in a reported case of Suresh Prasad vs. State of Jharkhand, 2017 (3) JLJR 136 , this court has held that no departmental proceeding could be initiated against an employee with respect to an event that occurred before four years from the date of retirement of the employee. Learned counsel further argues that the respondents, in their counter-affidavit have nowhere denied this fact that departmental proceeding has been initiated after four years from the date of retirement of petitioner. Since the departmental proceeding could not be initiated after four years from the date of retirement, resolution contained in Memo No. 333/2004, dated 17.05.2017 and Prapatra ‘Ka’ deserves to be quashed and set aside. 5. Per contra, counter-affidavit has been filed. Mr. Devesh Krishna, learned counsel appearing for the respondent-State justifying the initiation of departmental proceeding, submits that initiation of proceeding under Rule-43(b) of Jharkhand Pension Rules is fully justified and the same is neither arbitrary nor bad in law. Learned counsel further argues that since the construction of bridge was supervised by the petitioner while he was in service, hence, he has been held guilty for the corrupt practice in collusion with the contractor and negligent supervision. Learned counsel further argues that since the construction of bridge was supervised by the petitioner while he was in service, hence, he has been held guilty for the corrupt practice in collusion with the contractor and negligent supervision. As the construction of the bridge was completed with the low quality of the materials and the petitioner did not take any technical action to correct the construction work during his duty, hence, rightly order for initiation of departmental proceeding was issued under Rule-43(b) of Pension Jharkhand Rules. Learned counsel further argues that approval for initiation of departmental proceeding has been obtained by the authority from the Hon’ble Governor of the State, hence, it cannot be said that the same is without jurisdiction. 6. Be that as it may, having heard the rival submissions of learned counsel for the parties and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, the petitioner retired from services on 31.01.2011 and a show-cause notice was served to the petitioner for initiating departmental proceeding in the year 2017 i.e. six years after retirement of the petitioner. Petitioner was also issued Prapatra ‘Ka’ on 17.05.2017 for initiation of a departmental proceeding under Rule-43(b) of the Jharkhand Pension Rules and also to conduct the departmental proceeding under the Jharkhand Government Servants (Classification, Control and Appeal) Rules, 2016 (for short “2016 Rules”). It is always open to the State to initiate proceeding under Rule 43(b) of the Pension Rules, 1950. But the State cannot initiate such proceeding after retirement of an employee, if allegation relates to an incident which has taken place four years prior to issuance of charge-sheet. Admittedly, no proceeding was initiated by the competent authority till the date of superannuation of the petitioner. It was only in the year 2017 i.e. six years after retirement, show-cause for initiation of proceeding was issued to the petitioner. Before coming to the conclusion whether the impugned orders are justified or not, it would be apposite to peruse the provisions enshrined under Jharkhand Pension Rules, which reads as under: “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 pensioner is convicted of serious crime or be guilty of grave misconduct. The provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner 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 caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that: (a) such departmental proceeding, if not instituted while the Government servant was on duty either before retirement or during reemployment. (i) shall not be instituted save with the sanction of the State Government. (ii) shall not be in respect of an event which took place not more than four years before the institution of such proceedings. (iii) shall be conducted by such authority and at such place of 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 reemployment, shall have been instituted in accordance with sub-clause (ii) of clause (a). (c) the Bihar Public Service Commission, 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. (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. (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. (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.” 7. From the facts, it is crystal clear that petitioner superannuated on 31.01.2011 and it was only after six years from the date of retirement, a meme No. 333/2004, dated 17.05.2017 was served to the petitioner for initiating a departmental proceeding and Prapatra “Ka” was served to the petitioner. In view of the specific bar as prescribed for initiating departmental proceeding with respect to an event which is prior to four years from the date of retirement of an employee, the respondent-authorities have committed error in law by initiating the departmental proceeding against the petitioner. 8. The issue fell for consideration before the Hon’ble Apex Court in case of State of Bihar and Others vs. Md. Idris Ansari, 1995 Supp. (3) SCC 56. It is manifest from a plain reading of the said judgment that their Lordships were considering the validity of proceedings under the Pension Rules initiated after superannuation of the employee concerned. The judgment is an authority on the scope and ambit of Rule-43(b) and Rule-139 of the Pension Rules and with respect to the proceeding started thereunder after superannuation of the employee. The departmental proceeding against the petitioner vide Annexure-2 is in the teeth of Ride- 43(b) proviso as well as the decision of the Hon’ble Apex Court in case of Md. Idris Ansari (supra) and as such, the proceeding initiated against the petitioner vide Annexure-2 is illegal, arbitrary and without jurisdiction, cannot sustained in the eyes of law and as such, fit to be quashed and set aside as not sustainable. 9. The Hon’ble Apex Court in case of Md. Idris Ansari (supra), has held as under: “7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. Idris Ansari (supra), has held as under: “7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27-9-1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17-10-1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition No. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17-10-1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17-10-1987 but initiated fresh departmental inquiry by the impugned notice dated 27-9-1993. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17-10-1987. 9. So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired government servant or not in the circumstances contemplated by the rule. The first circumstance is that if the service of the government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The first circumstance is that if the service of the government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of the government servant concerned while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revisional power has to be exercised in consonance with the principles of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first time. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture: 1. A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory. 2. Even if the service record of the officer concerned is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct of the officer concerned during his service tenure, the State Government can exercise revisional power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond that period.” 10. This Hon’ble Court also in case of Radha Raman Sahay and Others vs. State of Bihar and Others, 2013 SCC Online Jhar. 121, has held that “Rule 43(a) provides that Government may withhold pension or part of the pension if pensioner is convicted of serious crime or be guilty of grave misconduct. However, as per the proviso (a) of Rule 43 (b), the Government could have started departmental proceeding during the service period of the employee or his re-employment. 121, has held that “Rule 43(a) provides that Government may withhold pension or part of the pension if pensioner is convicted of serious crime or be guilty of grave misconduct. However, as per the proviso (a) of Rule 43 (b), the Government could have started departmental proceeding during the service period of the employee or his re-employment. As per sub-clause (ii) of proviso (a) of Rule 43 (b), such departmental enquiry can be initiated with respect of event which took place within four years before the institution of such proceeding.” 11. From the legal propositions and the settled principles of law as enunciated in the aforesaid judgment of the Hon’ble Apex Court, it can comfortably be inferred that no proceeding can be initiated after four years from the date of retirement of an employee. The limitation period for initiation of proceeding is four years and in view of the bar of four years, any proceeding initiated after that is null and void. Admittedly, in the instant case, the proceeding was initiated after six years of retirement and on this score itself, the entire proceeding fails. 12. As a sequel to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the Memo No. 333/2004, dated 17.05.2017 and Prapatra ‘Ka’ issued by respondent No. 3, pertaining to initiation of departmental proceeding against the petitioner invoking provision of Rule-43(b) of the of Jharkhand Pension Rules, is not sustainable in the eyes of law and is hereby quashed and set aside. 13. Resultantly, the writ petition succeeds and is hereby allowed.