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2024 DIGILAW 438 (JHR)

Brajeshwar Singh v. Jharkhand of Jharkhand

2024-04-24

DEEPAK ROSHAN

body2024
JUDGMENT : HON'BLE MR. JUSTICE DEEPAK ROSHAN Heard learned counsel for the parties. 2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order dated 12.09.2017 (Annexure-6) issued under Memo No. 3912 by respondent no.5; whereby an order for deduction of pension to the tune of 15% of the payable pension for 5 years has been passed for the alleged irregularity for the year 2003-2004 in Micro Lift Project under Water Resources Departent, Bokaro for which the preliminary enquiry and show cause were completed in 2007 but no order was passed till the date of retirement of the petitioner on 31.12.2016. 3. The brief facts of the case is that while the petitioner was serving as Junior Engineer in Minor Irrigation Department and was posted at Chas, Bokaro and was incharge as Junior Engineer for Jaridih Area within the District of Bokaro, a tender for Micro Lift Project Work was floated and M/s Jai Mahalaxmi Construction was selected for completion of the work. The fact further reveals that in connection with the aforesaid project a file was created and a direction was isused for preliminary enquiry and pursuant to the said direction vide letter no. 171 dated 09.04.2007, a detail report was sought from the office of Executive Engineer, Minor Irrigation Department, Bokaro. Since the then Executive Engineer did not respond to the letter, hence the department constituted a Four Men Committee for enquiry over the matter for spot verification and to find out the correctness of the news item and to submit the report between 14.05.2007 to 18.05.2007. Purusuant thereto; the investigating team reached Bokaro and inquired into the matter, however the enquiry team could not get the file concerned like measurement book etc. It is the case of the petitioner that enquiry team could visit only Chakulia, Diwan Ganj and Gidhtand Micro Lift Works and the petitioner was given work of Jaridih in Bokaro district and the said investigating team never reached Jaridih Micro Lift Works. Subseqeunty, enquiry team observed that the works taken by M/s Jai Mahalaxmi Construction were substandard and not upto the mark and hence it was blacklisted. The allegation against this petitioner is that he prepared abstract of measurement book of other works which were not allotted to him and thus he was responsible for the excessive withdrawal. Subseqeunty, enquiry team observed that the works taken by M/s Jai Mahalaxmi Construction were substandard and not upto the mark and hence it was blacklisted. The allegation against this petitioner is that he prepared abstract of measurement book of other works which were not allotted to him and thus he was responsible for the excessive withdrawal. Pursuant to the enquiry report, a show casue was issued to the petitioner on 17.07.2015 (Annexure-2). The petitioner replied to the aforesaid show cause vide its reply dated 08.08.2015 (Annexure-3). Subsequently, the petitioner retired from service on 31.12.2016. 4. It is a specific case of the petitioner that till the date of retirement, no proceeding, whatsoever, was initiated against him and only on the basis of enquiry report a show cause was issued to him for which he duly replied. Subsequently, the respondents issued a second show cause on 02.05.2017 i.e. after the retirement of service and the said second show cause was also replied by the petitioner vide its reply dated 14.05.2017 and finally the impugned order of deduction in the amount of pension by 15% has been issued vide memo no. 3912 dated 12.09.2017. 5. Mr. Dhananjay Kr. Pathak, learned counsel for the petitioner submits that neither Section 43 (b) of Bihar/Jharkhand Pension Rules (hereinafter to be referred as Pension Rules) has been adopted in this case nor action under Rule 139 of Pension Rules empowers the respondents to pass the order of deduction from pension. He contended that the respondents were very much empowered to convert the proceeding from preliminary enquiry to departmental proceeding after following the principles and procedure under Section 43 (b) of Pension Rules. However, they did not resorted to the provision of 43 (b) instead they pass an order under Rule 139 of the Pension Rules. He further submits that the issue as to when the order under Rule 139 can be resorted has been decided by the Hon’ble Apex Court in the case of State of Bihar and others Vs. Mohd. Idris Ansari, as reported in 1995 Supp (3) SCC 56. He contended that the Hon’ble Apex Court in the said case has categorically held that any departmental proceeding will have to comply with the requirements of Rules 43(b) of Pension Rules. Mohd. Idris Ansari, as reported in 1995 Supp (3) SCC 56. He contended that the Hon’ble Apex Court in the said case has categorically held that any departmental proceeding will have to comply with the requirements of Rules 43(b) of Pension Rules. As such, the entire action of the respondent department is null and void and by relying upon the preliminary inquiry report and the alleged show cause they cannot suppress the latches which has been committed by them by not initiating the departmental proceeding during the service tenure of the petitioner accordingly, the instant writ application may be allowed. 6. Mr. Abhinay Kr., A.C to G.A.-I for the respondent relies upon its counter-affidavit and submits that the show cause was given to the petitioner during his service tenure. However, no order was passed and therefore, the respondents have taken recourse of Rule 139 of Bihar Pension Rules and there is no infirmity in the action of the respondents. He further submits that financial irregularities have been committed by the petitioner and Section 139 of Pension Rules is such a section which empowers a State Government to recover the damage caused by a delinquent during his service period, as such no interference is required in the instant writ application. 7. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it appears that in view of one paper-cutting and a report of the then Minsiter, the Department took notice of the alleged misappropriation of fund and a preliminary enquiry was conducted. Pursuant thereto; the petitioner was also issued a show cause and a reply was given by him. However, it is an admitted case that no departmental proceeding was initiated till the age of superannuation of the petitioner. Rule 43(b) of Pension Rules stipulates the scenario when a delinquent has committed mischief during his service tenure and how the proceedings should be initiated in cases where those delinquents have retired from service. However, it is an admitted case that no departmental proceeding was initiated till the age of superannuation of the petitioner. Rule 43(b) of Pension Rules stipulates the scenario when a delinquent has committed mischief during his service tenure and how the proceedings should be initiated in cases where those delinquents have retired from service. For brevity Rule 43(b) is quoted hereinbelow:- “Rule 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”. 8. Since the respondents have taken action under Rule 139 of Pension Rules, for brevity, the same is quoted herein below:- “(a) The full pension admissible under the Rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. (c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under the 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 form the date of the order sanctioning the pension was first passed”. 9. The issues involved in this case and the procedure to be adopted even in the case of Rule 139 has been dealt in detail by the Hon’ble Apex Court in the case of of State of Bihar and others Vs. Mohd. Idris Ansari (supra). For brevity, para 6 to 10 is quoted hereinbelow:- “6. Having given our anxious considerations to these rival contentions, we find that the decision of the High Court on the facts of the present case is unexceptionable. The earlier notice dated 17-7-1993 by which fresh departmental proceedings were sought to be initiated was rightly quashed by the High Court as it was based on the alleged misconduct of the respondent during 1986-87 which was more than four years prior to the issue of the said notice. Such a notice seeking to initiate fresh departmental proceedings after the retirement of the respondent, was clearly hit by the proviso to sub-rule (b) of Rule 43 of the Rules. Such a notice seeking to initiate fresh departmental proceedings after the retirement of the respondent, was clearly hit by the proviso to sub-rule (b) of Rule 43 of the Rules. Rule 43(b) reads as under: “(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 proceedings 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;” 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. 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. 8. There remains the question whether any assistance can be derived by the appellant authorities from Rule 139 of the Rules. The said Rule 139 reads as under: “139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. (c) 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.” 9. 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.” 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 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. 10. So far as the second type of cases are concerned the proof of grave misconduct on the part of the government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 31-1-1993 and the show-cause notice was issued on the ground of grave misconduct on 27-9-1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore, to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27-9-1993 meaning thereby it should have been committed during the period from 26-9-1989 up to 31-1-1993 when the respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139(a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27-9-1993 invoking powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show-cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13-12-1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after the expiry of four years from 1986-87, as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the show-cause notice dated 27-9-1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed. There is no order as to costs.” 10. After going through the aforesaid judgment passed by the Hon’ble Apex Court; to decide the lis involved in the instant case, some facts are required to be reiterated. Admittedly, no departmental proceeding was initiated against this petitioner during his service period; rather only a show cause was issued which was duly replied by him but no departmental proceeding was initiated by serving a charge sheet. Since the dispute concerned the year 2003-04, therefore obviously in view of the proviso to Rule 43(b) of the Pension Rules, the respondents were barred from taking any action under Rule 43(b) in view of the proviso (ii) of the said sub-rule; and that might be the reason that the Respondents took resort of Rule 139 of Pension Rules. But in view of categorical finding at para 10 of the above-referred judgment which categorically states that even in the case under Rule 139; the proceeding will have to comply with the requirement of 43(b) of the Rules. Thus, what can be culled out from the aforesaid judgment is that a retired government servant can be held guilty of grevious misconduct for any charge committed during his service period even after his retirement; but such proceeding could be initiated in connection with only such misconduct which might have taken place within four years of institution of such departmental proceeding against him. 11. 11. At the cost of repetation, till the age of retirement no departmental proceeding was initiated and in the respondents have failed to annex any charge sheet from which it could be dechiphered the date of initiation of proceeding. It goes without saying that simply asking a show cause on the basis of a general enquiry report of committee does not amount to initiation of the a departmental proceeding. It goes without saying that any departmental proceedings is deemed to have commenced from the date of issuance of charge sheet; which is absent in the instant case. 12. Accordingly, the instant writ application deserves to be, and is, hereby, allowed. The impugned order dated 12.09.2017 (Annexure-6) issued under Memo No. 3912 by respondent no.5; whereby an order for deduction of pension to the tune of 15% of the payable pension for 5 years has been passed, is quashed and set side. 13. The respondents are directed to calculate the amount which has already been deducted from the retiral benefits of the petitioner and pay the same to him; and the entire exercise shall be completed within a period of four months from the date of receipt/procuction of copy of this order. If the entire deducted amount is not paid to the petitioner within the aforesaid stipulated period, the petitioner would also be entitled for compound interest @ 7% from the date of deduction till the date of actual payment over and above the deducted amount. 14. Consequently, the instant writ application is allowed in the manner indicated herein above.