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2024 DIGILAW 170 (JHR)

Jai Kishore Choudhary, son of late Ram Padarath Choudhary v. State of Jharkhand

2024-02-17

ANIL KUMAR CHOUDHARY

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JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This Writ Petition has been filed under Article 226 of the Constitution of India with a prayer for issuance of writ(s), order(s) or direction(s) in the nature of certiorari for quashing the letter Order contained in Memo No.2374 dated 19.06.2021 (Annexure-6) issued under the signature of respondent no.2 whereby and where under, the review petition submitted by the petitioner as against the order dated 10.12.2020 in relation to deduction of 5% pension for 1 year and payment of subsistence allowance during the period of suspension has been rejected. Further, prayer has also been made for issuance of writ(s), order(s) or direction(s) for quashing the order contained in Memo No.6320 dated 10.12.2020, a copy of which has been kept at Annexure-5, issued under the signature of respondent no.2 whereby and where under, in a departmental proceeding initiated against the petitioner by the State of Bihar by serving a Memo of Charge dated 08.09.1997, disagreement to the finding of the Enquiry Officer has been recorded by the State of Bihar vide letter contained in Memo No.5739 dated 29.11.2016 and the same has been converted into a proceeding under Section 43 (b) of the Jharkhand Pension Rules by the State of Jharkhand and a decision has been taken to impose deduction of 5% of pension for one year and for payment of subsistence allowance only during the period of suspension. The third prayer has also been made to issue writ(s), order(s) or direction(s) and declaration to the extent that the second show cause issued to the petitioner vide letter contained in Memo No.5739 dated 29.11.2016, a copy of which has been kept at Annexure-2, issued by the respondent-Bihar is without authority and jurisdiction in view of the fact that under the Bihar Reorganization Act, the petitioner had been allocated the cadre of State of Jharkhand vide Notification dated 29.07.2004 hence, the Bihar authorities were without jurisdiction to continue with the departmental proceeding and consequential relief. 3. Learned counsel for the petitioner submits that though several prayers has been made, the petitioner confines his prayer to the portion of the order dated 10.12.2020 in relation to the deduction of 5% of pension for one year. 4. The brief fact of the case is that the petitioner was appointed on the post of Assistant Engineer on 25.11.1979. 3. Learned counsel for the petitioner submits that though several prayers has been made, the petitioner confines his prayer to the portion of the order dated 10.12.2020 in relation to the deduction of 5% of pension for one year. 4. The brief fact of the case is that the petitioner was appointed on the post of Assistant Engineer on 25.11.1979. It was alleged that when the petitioner was posted as Assistant Engineer, Tube Well Construction Division, Gopalganj, there had been an advance of Rs.13,100/- and Rs.39,600/- lying in the name of the petitioner. The petitioner in contemplation of the departmental proceeding was put under suspension vide notification contained in Memo No. 924 dated 08.09.1997. The proceeding was initiated. The petitioner filed C.W.J.C. No. 5907 of 1999. The suspension of the petitioner was revoked. The enquiry officer found the charges levelled against the petitioner as not proved and the enquiry report was not served upon the petitioner. In the departmental proceeding, the petitioner vide notification dated 08.10.2001 was imposed punishment of stoppage of two increment with cumulative effect and also for payment of subsistence allowance during the suspension period. Since no enquiry report or second show cause notice was issued to the petitioner, the petitioner moved before the Hon’ble Patna High Court in C.W.J.C. No. 11523 of 2004. In terms of Bihar Reorganization Act, the services of the petitioner was allocated to the State of Jharkhand vide notification dated 29.07.2004 whereupon the petitioner continued in the State of Jharkhand. The Hon’ble Patna High Court vide order dated 11.03.2011 in C.W.J.C. No.11523 of 2004 quashed the order of punishment dated 07.03.2003 with a further direction upon the respondent to provide an enquiry report to this writ petitioner and that departmental proceeding will start from the stage of furnishing enquiry report and must conclude within six months of its initiation. 5. It is asserted by the petitioner that after the petitioner was allocated the cadre of State of Jharkhand in the year 2004, there had not been any authority or jurisdiction in the State of Bihar to continue with the proceeding rather the State of Bihar ought to have transmitted the proceeding to the State of Jharkhand. In this respect, learned counsel for the petitioner relied upon the judgment of a coordinate Bench of this Court in the case of Umesh Kumar Singh vs. The State of Jharkhand & Ors. In this respect, learned counsel for the petitioner relied upon the judgment of a coordinate Bench of this Court in the case of Umesh Kumar Singh vs. The State of Jharkhand & Ors. reported in 2006 SCC OnLine Jhar 823, paragraph nos.5, 8 and 9 of which reads as under:- “5. The short question involved in this Writ Petition is whether after the final cadre allocation of the Petitioner to the State of Jharkhand on 26th April, 2004, the State of Bihar had jurisdiction and authority to continue with the departmental proceedings against him. 8. A similar issue came up before this Court and a Division Bench of this Court in the case of State of Bihar v. Arvind Vijay Bilung reported in 2002 (1) J.L.J.R. 697 observed as under: 12. In such a situation and in such a background, where the State is carved out of an existing State, the cooperation between the two States becomes meaningful, If, therefore, the State of Bihar has, in its possession, any material against a Government servant who, by virtue of Section 74 of the Act, is now in the service of the State of Jharkhand and if the State of Bihar thinks that such material warrants initiation of an action against such a person, it is open to the State of Bihar to forward such material, to the State of Jharkhand for such action as it considered appropriate by the State of Jharkhand. Let it be very clearly understood, that only role of the erstwhile State in such a situation is merely to pass on the information or the relevant material to the State of Jharkhand and leaving the rest for the State of Jharkhand to do. Similar would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the State of Jharkhand has any material in its possession which may be required to be forwarded to the State of Bihar for appropriate action against such an employee. 9. From the observations of the Division Bench of this Court in the above case also, it is evident that State of Bihar had no authority to proceed against the Petitioner and not even with the consent and concurrence of the State of Jharkhand: Therefore, all departmental proceedings initiated against the Petitioner including the enquiry Report dated 19th May, 2005 are void ab initio. On the basis of the aforesaid Enquiry Report, which is hereby held to be illegal, the State of Jharkhand has issued final show cause notice dated 19th October, 2005 to the Petitioner, which is also impugned in this Writ Petition. During the pendency of this writ application, the final order of punishment, vide Memo No. 26/05-4155 dated 25th August, 2006 imposing punishments of recovery of Rs. 1,52,106.20, stoppage of two increments has been passed. Show cause notice and final order are also vitiated having been passed on the basis of illegal and invalid enquiry.” (Emphasis supplied) 6. It is also submitted by the learned counsel for the petitioner by relying upon the judgment of a coordinate Bench of this Court in the case of Yamuna Ram vs. State of Jharkhand & Ors. reported in 2002 1 JLJR 407 , paragraph no.5 of which reads as under:- “5. Admittedly even within six months time allowed by this Court the departmental proceeding was not concluded and the petitioner was forced to file second writ application. In my opinion, therefore, when the impugned order of punishment was passed no departmental proceeding was pending in the eye of law, in view of the order passed in CWJC No. 1678/2001, dated 26.4.2001. The impugned order, therefore, cannot be sustained in law.” that after six months of the resumption of departmental proceeding in the State of Bihar assuming for the sake of argument, the State of Bihar was having a jurisdiction to continue with the departmental proceeding even though the petitioner ceased to be an employee of the State of Bihar, consequent upon allocation and joining of him in the State of Jharkhand, still as the same was not concluded within six months so, no order of punishment could have been imposed by the Bihar Government on the departmental enquiry beyond the period of six months from its initiation in view of the said order dated 11.03.2011 in C.W.J.C. No. 11523 of 2004. 7. It is next submitted by the learned counsel for the petitioner that the petitioner attained the age of superannuation w.e.f. 31.10.2016 and applied for his pension papers. After superannuation of the petitioner, the State of Bihar issued show cause notice to the petitioner on 29.11.2016 expressing disagreement with the enquiry report. 7. It is next submitted by the learned counsel for the petitioner that the petitioner attained the age of superannuation w.e.f. 31.10.2016 and applied for his pension papers. After superannuation of the petitioner, the State of Bihar issued show cause notice to the petitioner on 29.11.2016 expressing disagreement with the enquiry report. The petitioner asserted that after allocation of the cadre of the petitioner to the State of Jharkhand and consequent upon the petitioner joining therein in the year 2004, the State of Bihar became functus officio to proceed with the enquiry report submitted in the matter of the petitioner. Hence, it has no jurisdiction to disagree with the enquiry report. The petitioner was paid pension and gratuity vide letter dated 09.11.2017 issued under the signature of the Assistant Accountant General, Jharkhand. The respondents thereafter acting upon the disagreement recorded by the State of Bihar took a decision to convert the proceeding under Section 43 (b) of the Pension Rules vide letter dated 18.07.2019. The petitioner replied to the show cause but second show cause notice was issued to the petitioner vide letter dated 22.05.2020. The petitioner replied to the said second show cause on 16.07.2020 explaining the entire circumstances. 8. It is further submitted by the learned counsel for the petitioner that as admittedly the disciplinary proceeding was in respect of an event which took place in the year 1990-91 so the decision of the respondents in converting the same to a proceeding under Section 43 (b) of the Pension Rules is hit by limitation prescribed by the proviso (ii) of Rule 43 (b) of Pension Rules; which provides that if the petitioner is found inter alia in departmental proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service in respect of an event which took place not more than four years before the institution of such proceeding. Hence, it is submitted that the conversion of the proceeding under Rule 43 (b) of the Pension Rules is not sustainable in law. Hence, it is submitted that the conversion of the proceeding under Rule 43 (b) of the Pension Rules is not sustainable in law. It is further contended by the learned counsel for the petitioner that in terms of Rule 139 (c) of the Pension Rules, once a pension of the petitioner has been approved, the same cannot be reduced after more than three years and as in this case the pension was approved on 09.11.2017 and its reduction of 5% was made on 10.12.2020 i.e. beyond the period of three years is also not sustainable in law. It is also submitted by the learned counsel for the petitioner that against the said order dated 10.12.2020 by which petitioner has been imposed the punishment of withholding 5% of pension for one year and payment of subsistence allowance, the petitioner preferred a review which has been rejected vide order contained in Memo No. 2374 dated 09.06.2021 was illegal. Hence, it is submitted that the prayer as made in the writ petition be allowed. 9. Learned counsel for the respondent nos.1 and 2 submits that the Water Resource Department, Government of Jharkhand vide Departmental Order No.2409 dated 09.05.2019 converted the departmental proceeding against the petitioner under Rule 43 (b) of the Pension Rules as the petitioner has already retired on 31.10.2016 and issued show cause to the petitioner vide letter dated 18.07.2019. It is pertinent to mention here that page no.42 of the counter affidavit filed by the respondent nos.1 and 2 shows that the petitioner has been intimated that the enquiry report of the petitioner was supplied to the petitioner vide letter dated 29.11.2016. Learned counsel for the respondent nos.1 and 2 submits that there is no illegality in the punishment order imposed by the respondents. Hence, it is submitted that this writ petition being without any merit be dismissed. 10. Learned counsel for the respondent no.3 submits that the respondent no.3 was not knowing the latest posting of the petitioner in the year 2011 hence, the second show cause was sent to three places i.e. Tarapur- the last place of posting of the petitioner, Sitamarhi- the permanent address of the petitioner and Water Resource Department, Bihar, the controlling department of the petitioner. The letter sent to Tarapur and Sitamarhi returned and thus the second show cause notice could not be served upon the petitioner. The letter sent to Tarapur and Sitamarhi returned and thus the second show cause notice could not be served upon the petitioner. The Water Resource Department, Bihar vide its letter dated 25.09.2017 informed that the petitioner has been allocated Jharkhand Cadre in the year 2004 and after the complete dossier along with the copy of the Judgment passed by the Hon’ble Patna High Court was sent to the Water Resources Department, Jharkhand vide letter dated 16.03.2018. Therefore, no illegality has been committed by the respondent no.3. Hence, it is submitted that this writ petition being without any merit be dismissed. 11. Having heard the rival submissions made at the Bar and after going through the materials available in the record, the question that arises for consideration is: “Whether respondent no.3, in view of the specific direction of the Hon’ble Patna High Court in its order dated 11.03.2011 in C.W.J.C. No. 11523 of 2004, to the effect that the respondent authorities will be cautious and proper intimation be given to the petitioner regarding the further proceeding, could have continued with the departmental proceeding without admittedly giving any notice to the petitioner after the said order dated 11.03.2011 passed by the Hon’ble Patna High Court?” 12. The admitted fact remains that after 11.03.2011 the petitioner was not given any notice of the further proceeding. The respondent no.3 admittedly did not have any jurisdiction to take any disciplinary action against the petitioner consequent upon the petitioner being allocated Jharkhand Cadre in the year 2004. The conversion of the departmental proceeding against the petitioner under Rule 43 (b) of the Pension Rules was hit by limitation prescribed under Rule 2 proviso (a) (ii). If the contention of the respondent nos.1 and 2 is considered that it is the continuation of the departmental proceeding which was initiated by the State of Bihar still the order dated 11.03.2011 in C.W.J.C. No. 11523 of 2004 is squarely applicable to the respondent nos.1 and 2 also and they have admittedly stepped into the shoes of the respondent no.3 so far as the departmental proceeding against the petitioner is concerned. So at the most on 18.07.2019 when the first show cause notice was issued to the petitioner and the petitioner responded to the same; So as per the order of the Hon’ble Patna High Court, the proceeding must have been concluded six months from 18.07.2019 but a disciplinary proceeding which concludes with imposition of penalty was concluded beyond the period of six months from 18.07.2019 i.e. on 10.12.2020. So in view of the settled principle of law reiterated by the coordinate Bench of this court in the case of Yamuna Ram vs. State of Jharkhand & Ors. (supra) punishment order of reduction of 5% of the pension for a year is not sustainable in law. 13. Further undisputedly, the pension of the petitioner was approved on 09.11.2017 so in view of the Rule 139 of the Pension Rules; the same cannot have been reduced beyond the period of three years on 10.12.2022. On these two counts, the order reducing the payment of the pension of 5% for one year is not sustainable in law. 14. In view of the discussion made above and the facts and circumstances of the case, the portion of the order dated 10.12.2020 in relation to deduction of 5% pension of the petitioner for one year is quashed and set aside and consequently, the review order dated 09.06.2021 is also quashed and set aside. 15. In the result, this writ petition is allowed to the aforesaid extent only.