JUDGMENT : HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY 1. Heard the learned counsel for the parties. 2. This writ petition has been filed for the following reliefs: - “a. For issuance of an appropriate writ(s)/order(s)/direction(s), in the nature of certiorari, for quashing of the Memo No. 3165 dated 01.06.2023, as contained in Annexure-3, whereby the decision has been taken against the petitioner for initiation of the departmental proceeding under Rule 43 (b) of the Jharkhand Pension Rules which is bad in law and not sustainable in the eye of law in view of Rule 43(b) proviso (a) (ii) of the Jharkhand Pension Rules as well as the decision rendered by the Hon'ble High Court in W.P. (S) No. 5065 of 2014 dated 30.01.2015 approved in L.P.A. No. 580 of 2015 dated 18.06.2020 and other judicial pronouncement on the same point passed in W.P. (S) No. 3503 of 2010 dated 08.05.2015, W.P. (S) No. 4049 of 2014 dated 07.04.2016; b. For issuance of an appropriate writ(s) /order(s) /direction(s), for quashing of the memo of charge issued by the Deputy Commissioner, Chatra vide his Letter No. 772 dated 19.12.2017 and also Letter No. 397 dated 19.01.2018, as contained in Annexures-4 and 5, issued by the Special Secretary, Urban Development and Housing Department, Jharkhand which is bad in law as well as on facts of the case; c. During the pendency of the writ application, the Hon'ble Court may further be pleased to stay the operation of Annexure-3 in view of Rule 43 (b) proviso (a) (ii) of the Jharkhand Pension Rules as well as the judgment pronounced by this Hon'ble High Court; d. For any other relief or reliefs for which the petitioner is very much entitled under the law in the facts and circumstances of the case.” 3. The petitioner was appointed as Deputy Collector pursuant to advertisement and selection and joined the said post on 17.05.1992 and was transferred from one place to another from time to time. On 31.12.2010, the petitioner was transferred to Chatra district as District Land Acquisition Officer and joined on 31.01.2011 and on 19.04.2012, he was transferred from Chatra to Chaibasa district as Sub-Divisional Officer, Sadar and he took charge at Chaibasa on 20.04.2012. 4. On 31.12.2010, the petitioner was transferred to Chatra district as District Land Acquisition Officer and joined on 31.01.2011 and on 19.04.2012, he was transferred from Chatra to Chaibasa district as Sub-Divisional Officer, Sadar and he took charge at Chaibasa on 20.04.2012. 4. The allegation against the petitioner in this case relates to the period from 31.01.2011 to 19.04.2012 during which the petitioner was posted as Land Acquisition Officer in the district of Chatra. 5. The records of this case reveal that petitioner was served with memo No. 3065 dated 10.05.2018 by which he was asked to explain with regard to one letter No.397 dated 19.01.2018 enclosing another letter No.772 dated 19.12.2017 being the charge framed and forwarded for further action in Prapatra “ka” by the Deputy Commissioner, Chatra. 6. The petitioner vide letter dated 25.07.2018 submitted his explanation and denied the allegations and before the petitioner could hear anything further from the respondents, the petitioner had attained the age of superannuation on 31.12.2018. Thereafter the disciplinary proceedings were initiated by invoking rule 43(b) of Jharkhand Pension Rules which is under challenge in this case by submitting that the proceedings are barred by proviso (a) (ii) of rule 43(b) of Jharkhand Pension Rules which prohibit initiation of any disciplinary proceedings after retirement for allegations relating to a period beyond 4 years. It is the case of the petitioner that the disciplinary proceedings were not initiated prior to his retirement as no charge memo was served while the petitioner was in service. 7. It is the case of the petitioner that at no point of time any resolution was issued indicating initiation of department proceeding against the petitioner, rather the letter dated 10.05.2018 was only seeking an explanation from the petitioner and it does not indicate any single word that the departmental proceeding was being initiated against the petitioner, to which the reply was already filed on 25.07.2018 and after much delay, the impugned resolution dated 01.06.2023 has been issued for initiation of departmental proceeding under Rule 43(b) of the Jharkhand Pension Rules which as per the submission of the petitioner is not permissible in law as decided by the Hon’ble Supreme Court in the case reported in 1995 Supp (3) SCC 56 (State of Bihar Vs. Md. Idris Ansari) and considered by this Court in the judgments enclosed as Annexure 6 to 8 of the writ petition. Md. Idris Ansari) and considered by this Court in the judgments enclosed as Annexure 6 to 8 of the writ petition. It is submitted that the entire proceeding is vitiated. 8. The learned counsel for the petitioner submits that otherwise also considering the short period of posting of the petitioner in Chatra from 31.01.2011 to 19.04.2012, the period for which the power under Rule 43(b) of the Jharkhand Pension Rules has been invoked is beyond the period of four years and, therefore, also the entire proceeding is vitiated. 9. It is the case of the respondents that the departmental proceeding is initiated once the memo of charge has been prepared and served to the delinquent. In the present case, on 17.10.2016, the respondent-department requested the Deputy Commissioner, Chatra to form memo of charge in Ái= ^d* and provide to the department along with the evidences and pursuant thereto, the department received the memo of charge dated 19.12.2017 vide letter No. 772 dated 19.12.2017 from the Deputy Commissioner, Chatra which was served to the petitioner by the respondent department. It is submitted that the memo of charge having been served upon the petitioner while he was in service, the departmental proceeding is deemed to have been initiated and continued in terms of Rule 43 (b) of Jharkhand Pension Rules. The memo of charge was sent to the department of Personnel vide letter dated 19.01.2018 and thereafter the petitioner filed his show cause on 25.07.2018 and the reply was sent by the Personnel Administrative Reforms and Rajbhasha Department for opinion of the department. The Personnel department issued several letters from 2018 to 2022, but the opinion was not received and, in the meantime, the petitioner superannuated on 31.12.2018. 10. The respondents have raised the following points for consideration:- (i) From the above facts it is clear that the petitioner was served show cause for the irregularities committed by him during his tenure in the year 19.12.2017 which is 1 year prior to his retirement and he also submitted his show cause reply on 25.07.2018 and hence it will be presumed that Departmental Proceeding was initiated prior to his retirement. (ii) Petitioner relies on Rule 43 (b) proviso (a)(ii) which says that proceedings cannot be started for event that took place 4 years before. (ii) Petitioner relies on Rule 43 (b) proviso (a)(ii) which says that proceedings cannot be started for event that took place 4 years before. This argument is not sustainable as it is for pensioners (retired employee) and Rule 43 (b) clearly states that such departmental proceeding, if not instituted while government servant was on duty on or before retirement, which means the time limitation of 4 years applies for retired person and not for person who was still in service when departmental proceeding was initiated. (iii) The Memo of charge was formed and served to petitioner on 19.12.2017, while he was on duty. (iv) The case relied upon by petitioner in W.P.S 4049/2014 Ravindra Prasad VS. State (Annexure-8) does not help the petitioner in view of the explanation (a) to Rule 43 of Jharkhand Pension Rules which provides that Departmental Proceeding is deemed to have instituted when charges framed have been issued against the pensioner before retirement or the Government servant has been placed under suspension from an earlier date. In the present case, the charges were farmed on 19.12.2017 and show-cause notice was served on 19.01.2018 before the retirement of the petitioner and as such departmental proceeding will be deemed to be initiated from 19.12.2017. Findings of this Court 11. In the present case, the charges were farmed on 19.12.2017 and show-cause notice was served on 19.01.2018 before the retirement of the petitioner and as such departmental proceeding will be deemed to be initiated from 19.12.2017. Findings of this Court 11. Rule 43 (b) of Jharkhand Pension Rules (herein after referred to as the Rules) reads as 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 reemployment after retirement: Provided that- (a) such departmental proceedings, 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 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 subclause(ii) of clause (a); and (C) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation. – For the purposes of 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; and (b)judicial proceedings shall be deemed to have been initiated …….… 12. Rule 43 (b) proviso (a) (ii) clearly provides that if the departmental proceedings have not been instituted while government servant was on duty, the same shall not be instituted in respect of an event which took place not more than 4 years before institution of such proceedings. Rule 43 (b) proviso (a) (ii) clearly provides that if the departmental proceedings have not been instituted while government servant was on duty, the same shall not be instituted in respect of an event which took place not more than 4 years before institution of such proceedings. It essentially follows that if the departmental proceedings have been instituted prior to retirement, bar under Rule 43 (b) proviso (a) (ii) will not be attracted. 13. As per explanation (a) to Rule 43, departmental proceedings 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. 14. The Prapatra “ka” dated 19.12.2017 was a recommendation for initiating disciplinary proceedings signed by Deputy Commissioner, Chatra and was addressed to the Principal Secretary, Urban Development and Housing Department. The Prapatra “ka” dated 19.12.2017 was enclosed and sent by to the Principal Secretary, Urban Development and Housing Department for needful and appropriate action vide another letter dated 19.12.2017. In turn, the Principal Secretary, Urban Development and Housing Department issued letter dated 19.01.2018 to the principal Secretary, Personnel Administrative Reforms and Rajbhasha Department forwarding a copy of the charge framed against the petitioner in Prapatra “ka” for necessary action. 15. In terms of aforesaid letter dated 19.01.2018, a letter no.3065 dated 10.05.2018 was issued to the petitioner by the Under Secretary, Personnel Administrative Reforms and Rajbhasha Department stating that charge framed by the Deputy Commissioner, Charta in Prapatra “ka” was received from Urban Development and Housing Department vide covering letter dated 19.01.2018 and vide letter dated 10.05.2018 the petitioner was directed to show cause within 15 days to the allegations mentioned in charge memo Prapatra “ka”. A direction was also issued to the Deputy Commissioner, Lohardaga where the petitioner was posted at that point of time, to ensure that the show cause of the petitioner is filed within time. 16. The records also reveal that in response to the said communication dated 10.05.2018, the petitioner filed his show cause reply to the charges forwarded to him in Prapatra “ka” vide explanation dated 25.07.2018 which was forwarded to the Under Secretary, Personnel Administrative Reforms and Rajbhasha Department, Government of Jharkhand vide covering letter dated 25.07.2018. 17. 16. The records also reveal that in response to the said communication dated 10.05.2018, the petitioner filed his show cause reply to the charges forwarded to him in Prapatra “ka” vide explanation dated 25.07.2018 which was forwarded to the Under Secretary, Personnel Administrative Reforms and Rajbhasha Department, Government of Jharkhand vide covering letter dated 25.07.2018. 17. Thereafter, on 23.08.2018, the Deputy Secretary to the Personnel Administrative Reforms and Rajbhasha forwarded the show cause reply of the petitioner to the Secretary, Urban Development and Housing Department, but in spite of communication dated 23.08.2018, 02.07.2019, 27.12.2019, 29.07.2020 and 03.09.2021, no response was received. 18. Another communication dated 09.05.2022 was issued from the Personnel Administrative Reforms and Rajbhasha Department to the Secretary, Urban Development and Housing Department reiterating that charge has been framed and served upon the petitioner to which the petitioner has also submitted a reply, but on account of non-receipt of any opinion from the Secretary, Urban Development and Housing Department, further action in connection with the charges was pending. 19. In the meantime, the petitioner having retired on 31.12.2018 and the impugned resolution dated 30.05.2023 (annexure-3) was issued by stating that a decision has been taken to initiate departmental proceeding against the petitioner in terms of Rule 43 (b) of Jharkhand Pension Rules as the allegations levelled in the charge memo forwarded to the petitioner vide covering letter dated 19.01.2018 were prima-facie found to be correct and the inquiry officer was also appointed by the said resolution dated 30.05.2023. 20. Thus, the facts placed on record reveal that charge memo was issued to the petitioner seeking his show cause reply to which the petitioner duly replied, but he attained the age of retirement prior to initiation of disciplinary proceedings which were initiated after his retirement. 21. Upon perusal of the provision of Rule 43 (b) explanation (a), it clearly provides that the departmental proceeding shall be deemed to have been instituted when the charges framed are issued to the pensioner or even on an earlier date when the pensioner had been placed under suspension in connection with the same allegation. 22. Thus, in the instant case, the charge was framed and served upon the petitioner prior to his retirement and therefore, the disciplinary proceedings will be deemed to have been instituted prior to his retirement in terms of Explanation (a) to rule 43 (b). 22. Thus, in the instant case, the charge was framed and served upon the petitioner prior to his retirement and therefore, the disciplinary proceedings will be deemed to have been instituted prior to his retirement in terms of Explanation (a) to rule 43 (b). Once explanation (a) to Rule 43 (b) is attracted, the disciplinary proceeding is deemed to be initiated prior to retirement and proviso (a) (ii) to Rule 43(b) has no role to play i.e. the petitioner will have to face the disciplinary proceedings even if the incident was relating to a period prior to 4 years. This would be the position irrespective to the fact that the decision to initiate the departmental proceeding is taken on later date vide impugned resolution dated 30.05.2023 by referring to Rule 43 (b) of Jharkhand Pension Rules and by appointing an inquiry officer. Since the departmental proceeding is deemed to have been initiated prior to the retirement of the petitioner, this Court is of the considered view that the provision of Rule 43 (b) of Jharkhand Pension Rules has been rightly invoked and such action does not call for any interference. Considerations of judgements relied upon by the petitioner. 23. The Rule 43(b) rule was subject matter of consideration in the case of Mohd. Idris Ansari (supra) followed by this Court in the judgement annexed as annexure-6, 7 and 8 of the writ petition. In the case of Mohd. Idris Ansari (supra), the employee had retired on 31.01.1993 and the show cause notice on the ground of grave misconduct was issued on 27.09.1993 relating to the period beyond 4 years. 24. In W.P.(S) No.5065 of 2014 Md. Quamruddin -vs-State of Jharkhand & Others) decided on 30.01.2015, the petitioner therein had received Memo No.2710 dated 28.07.2009 enclosing memorandum of charge dated 27.07.2009 and was asked to give his defense reply, but he had retired much earlier on 30.11.2006. The allegation was relating to the period from 17.02.2004 to 09.10.2004. This Court held that the departmental proceeding was deemed to have been initiated only with effect from 27.07.2009 i.e. when the memorandum of charge was issued or on 28.07.2009 i.e. when the resolution was passed for initiating departmental inquiry. The allegation was relating to the period from 17.02.2004 to 09.10.2004. This Court held that the departmental proceeding was deemed to have been initiated only with effect from 27.07.2009 i.e. when the memorandum of charge was issued or on 28.07.2009 i.e. when the resolution was passed for initiating departmental inquiry. The learned writ Court also considered that the memo of charge which was issued after retirement which was in relation to event beyond 4 years from the date of issuance of memo of charge / resolution initiating disciplinary proceeding i.e. 27.07.2009 / 28.07.2009 and found that the facts when compared with the case of Mohd. Idris Ansari (supra) were identical. Paragraph Nos.14 to 16 and 20 of the judgment passed in W.P.(S) No. 5065 of 2014 are quoted as under: “14. As per the provision as contained in Rule 43(b) proviso (a)(ii), the disciplinary authority can initiate departmental proceeding under Rule 43(b) in respect of event which took place within 4 years from the date of institution of proceeding. 15. Further in view of explanation under Rule 43(b) where in at explanation-(a), it has been stated that the 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. 16. In view of the explanation as cited hereinabove, in the present case the departmental proceeding is said to have been initiated only with effect from 27.7.2009 i.e. when the memorandum of charge was issued or on 28.7.2009 i.e. when resolution was passed for initiating departmental enquiry. Hence, the memorandum of charge was issued, admittedly after period of 4 years from the date of alleged occurrence i.e. on 29.3.2004 whereas resolution pertaining to such memorandum of charge was passed on 28.7.2009. 17… 18… 19… 20. If the facts of the present case of the petitioner compared with the facts of the case of Mohd. Idris Ansari (supra) both are identical. Hence, in view of settled legal aspect as discussed above, I find support in the contention raised by learned counsel for the petitioner. The said writ petition being W.P.(S) No.5065 of 2014 was allowed and LPA No.580 of 2015 filed by the State was dismissed vide judgment dated 18.06.2020. Idris Ansari (supra) both are identical. Hence, in view of settled legal aspect as discussed above, I find support in the contention raised by learned counsel for the petitioner. The said writ petition being W.P.(S) No.5065 of 2014 was allowed and LPA No.580 of 2015 filed by the State was dismissed vide judgment dated 18.06.2020. In the judgment passed in W.P.(S) No. 4049 of 2014 (Ravindra Prasad -vs-The State of Jharkhand & Others), the petitioner had retired on 28.02.2013 and resolution initiating departmental proceedings issued after retirement was served annexing the charge memo and in such circumstances, the argument of the respondent that charge was already served on 11.09.2012 was rejected and a finding was recorded that charge having been annexed with the resolution dated 19.05.2014, the charge was served on 19.05.2014 and therefore the departmental proceedings was held to have been instituted/initiated on 19.05.2014 i.e. after retirement and the charges being relating to the period beyond 4 years the proceeding was quashed by referring to the judgment passed in the case of Mohd. Idris Ansari (supra). 25. In the aforesaid judgements relied upon by the petitioner, the charge memo and the resolution initiating disciplinary proceedings both were found to have been issued after retirement and therefore Explanation (a) to Rule 43 (b) had no role to play and the proceeding was hit by proviso (a) to Rule 43 (b) of Jharkhand Pension Rules. 26. The aforesaid judgments do not apply to the facts of the present case as the charge memo was served upon the petitioner at the instance of Special Secretary, Urban Development and Housing Department through Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand prior to his retirement to which the petitioner duly responded, but it was only the resolution of initiating departmental proceeding which was passed after his retirement. Accordingly, the proceedings cannot be said to be hit by proviso (a) to Rule 43 (b) of Jharkhand Pension Rules considering the provisions of Explanation (a) to Rule 43 (b) of Jharkhand Pension Rules and the disciplinary proceeding is deemed to have been initiated prior to the retirement of the petitioner by issuance of charge memo. 27. As a cumulative effect of the aforesaid findings, this writ petition is dismissed. 28. Interim order, if any, is vacated. 29. Pending interlocutory application, if any, is closed.