Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 848 (JHR)

Dayanand Mahli v. State of Jharkhand

2023-07-10

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the resolution dated 18.11.2016 (Annexure-1/A to the present writ petition) issued under the signature of the respondent No.3 whereby a decision has been taken to initiate a proceeding under Rule 43(b) of the Bihar (now Jharkhand) Pension Rules [hereinafter referred to as ‘the said Rules’], which according to the petitioner, is illegal as the cause of action for the alleged conduct of the petitioner had arisen in the year 2009 whereas the said decision was taken by the State Government as late as in the month of November, 2016. 2. The relevant facts emanating from the writ petition is that the petitioner was appointed in the year 1980 as the Deputy Collector. In the year 1986, he was granted Junior Selection Grade. In the year 2004, he was allocated Jharkhand Cadre due to reorganization of the erstwhile State of Bihar and was posted as Additional Collector. Subsequently, he was promoted to the rank of Joint Secretary in the year 2009. While the petitioner was working in the capacity of the Deputy Secretary, Department of Food, Civil Supplies and Consumer Affairs, Government of Jharkhand, a show cause notice was issued to him on 26.11.2009 alleging that he was involved in commission of irregularities with respect to printing of the ration cards. The petitioner submitted his reply on 29.04.2011. Thereafter, no decision was taken in this regard and the petitioner superannuated from service w.e.f. 30.11.2011 and was also paid the retiral dues. However, the Government of Jharkhand vide impugned resolution dated 18.11.2016, took a decision to initiate a proceeding under Rule 43(b) of the said Rules against the petitioner. Simultaneously, a chargesheet was issued to him containing the details of charges. It was alleged against the petitioner in the chargesheet that he was the part of conspiracy in awarding the work of printing ‘Antyodya ration cards’ and ‘BPL cards’ to M/s Setu Printers, Ranchi without following due procedure. The chargesheet also referred the order passed by learned Division Bench of this Court in L.P.A. No. 118/2011 whereby the concerned State authorities were directed to pay Rs.64,74,761/- to M/s Setu Printers, Ranchi along with interest @ 6% per annum. 3. The chargesheet also referred the order passed by learned Division Bench of this Court in L.P.A. No. 118/2011 whereby the concerned State authorities were directed to pay Rs.64,74,761/- to M/s Setu Printers, Ranchi along with interest @ 6% per annum. 3. The main submission of learned counsel for the petitioner is that the impugned resolution dated 18.11.2016 issued by the State Government whereby a proceeding under Section 43(b) of the said Rules was decided to be initiated against the petitioner is barred under its Proviso (a)(ii). 4. While substantiating the said argument, learned counsel for the petitioner contends that the cause of action for initiation of proceeding under Rule 43(b) of the said Rules started on 26.11.2009 i.e. the day the show cause notice relating to the said aspect was issued to the petitioner, whereas the impugned resolution was issued as late as on 18.11.2016. According to learned counsel for the petitioner, a proceeding under Rule 43(b) can only be initiated, if the event for which the said action is to be taken by the government, has taken place within four years. In the present case, though the cause of action arose as back as in the month of November, 2009, the impugned resolution dated 18.11.2016 was issued after about seven years and hence the same is hit by Proviso (a)(ii) of Rule 43(b). 5. Mr. Mrinal Kanti Roy, learned G.A-I appearing on behalf of the respondents, submits that the respondent No.4 vide his letter dated 17.09.2009, informed his counterpart of Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand regarding involvement of few officers including the petitioner in getting the ration cards printed through M/s Setu Printers, Ranchi. Thereafter, a show cause notice was issued to the petitioner by the Department of Personnel, Administrative Reforms and Rajbhasa vide memo No. 7737 dated 26.11.2009 calling upon him to submit his reply within 15 days. However, the petitioner did not respond to the said show cause notice in time, rather he submitted the same as late as on 29.04.2011 and thereafter he retired from service w.e.f. 30.11.2011. Under the said situation, the government did not have sufficient time to initiate appropriate proceeding against the petitioner, however, ultimately vide the impugned resolution dated 18.11.2016, the government decided to take action against the petitioner under the provisions of Rule 43(b) of the said Rules. 6. Under the said situation, the government did not have sufficient time to initiate appropriate proceeding against the petitioner, however, ultimately vide the impugned resolution dated 18.11.2016, the government decided to take action against the petitioner under the provisions of Rule 43(b) of the said Rules. 6. It is also submitted by learned counsel for the respondents that since the petitioner submitted his explanation vide letter dated 29.04.2011 responding to the show cause notice issued to him on 26.11.2009, the departmental proceeding for the alleged irregularities would be deemed to have initiated against him from 26.11.2009 and as such the proceeding under Rule 43(b) of the said Rules is not barred under its Proviso (a)(ii). 7. Heard learned counsel for the parities and perused the relevant materials available on record. The admitted facts emerging from the pleadings of the parties is that on 17.09.2009, the respondent No.4 informed his counterpart of Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand regarding the irregularities committed by few officers including the petitioner in getting the ration cards printed. Thereafter, exchange of few letters were made between the said departments and finally a show cause notice in that regard was issued to the petitioner on 26.11.2009. The petitioner replied the same on 29.04.2011. Subsequently, he superannuated from service w.e.f. 30.11.2011. Thus, the cause of action for taking appropriate action against the petitioner can be said to have commenced on 26.11.2009 itself. 8. Thereafter, the retiral benefits were paid to the petitioner and his pension was also fixed. However, vide the impugned resolution dated 18.11.2016, the State Government took a decision to initiate a proceeding against the petitioner by invoking Rule 43(b) of the said Rules. It would thus be evident that there is a gap of about 7 years between the cause of action and the decision to initiate a proceeding against the petitioner under Rule 43(b) of the said Rules. 9. It would thus be evident that there is a gap of about 7 years between the cause of action and the decision to initiate a proceeding against the petitioner under Rule 43(b) of the said Rules. 9. For better appreciation of the matter, Rule 43(b) of the Pension Rules is quoted here under: “43.(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 proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment: (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or 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 re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission shall be consulted before final orders are passed.” 10. Proviso (a)(ii) to Rule 43(b) thus clearly stipulates that if a departmental proceeding was not instituted while the government servant was on duty either before retirement or during re-employment, the same shall be in respect of an event which took place not more than four years before institution of such proceeding. 11. A Bench of this Court in the case of Sukhdeo Ram Vs. The State of Bihar & Ors. reported in 2002(2) JLJR 316 has held as under: “10. It is a settled law that no departmental proceeding can proceed after retirement for inflicting any punishment as envisaged under Rule 49 of the Rules. 11. A Bench of this Court in the case of Sukhdeo Ram Vs. The State of Bihar & Ors. reported in 2002(2) JLJR 316 has held as under: “10. It is a settled law that no departmental proceeding can proceed after retirement for inflicting any punishment as envisaged under Rule 49 of the Rules. However, it is always open to the State to initiate any proceeding under Rule 43(b) of the Bihar Pension Rules, 1950. In such case, if no proceeding initiated during his service career, the State is only empowered to initiate such proceeding. Even the State cannot initiate such proceeding after retirement under Rule 43(b) of the Bihar Pension Rules, if the allegation relates to an incident taken place more than four years prior to issuance of such chargesheet.” 12. On perusal of the record, it appears that printing of ration cards was made by M/s Setu Printers, Ranchi in the year 2008-09 and thereafter finding certain irregularities in the same, the government started taking appropriate action from the month of September, 2009 i.e. when the respondent No.4 requested his counterpart of Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand mentioning the names of the persons including the petitioner, who were allegedly involved in the same. Thus, the event for which the impugned resolution dated 18.11.2016 has been issued can be said to be of the year 2008-09. Hence, this Court is of the view that the decision of the State Government to initiate a proceeding against the petitioner by invoking Rule 43(b) of the Pension Rules is certainly barred by Proviso (a)(ii) of the same. 13. Under the aforesaid facts and circumstances, the impugned resolution dated 18.11.2016 issued under the signature of the respondent No.3 cannot be sustained in law and the same is hereby quashed. 14. The present writ petition is accordingly allowed.