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2024 DIGILAW 511 (JHR)

Alice Usha Rani Singh v. State of Jharkhand

2024-05-16

S.N.PATHAK

body2024
JUDGMENT : S.N. PATHAK, J. Heard the parties. Prayers made 2. Petitioner has prayed for a direction upon the respondents to pay her 15% pension which has been withheld for five years after quashing and setting aside the orders contained in memo No. 9290 dated 20.09.2013 and 10003 dated 15.10.2013, issued by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand, Ranchi and also the memo No. 1363 dated 15.11.2013 issued by the Accounts Officer, Office of the Accountant General (A&E), Jharkhand, Ranchi. Factual Matrix 3. Shorn of unnecessary details, the petitioner on attaining the age of retirement, superannuated on 30.04.2010 from the post of Director, Department of Land Records, Measurement, Revenue and Land Reforms, Govt. of Jharkhand, Ranchi. It is the case of petitioner that she joined the Jharkhand Public Service Commission on 13.08.2004 as Secretary and thereafter, she was made Controller of Examination to which she assumed the charges on 05.03.2005. It is the further case of petitioner that on the basis of investigation report of the Vigilance Department to the State Government dated 13.12.2010, an FIR being R.C. Case No. 06(A)/12 (AHD) was registered against the petitioner and others for committing administrative irregularities and mismanagement in the 1st Civil Service Examination conducted by the Jharkhand Public Service Commission. However, the said R.C. Case is still pending before the learned Trial Court and petitioner is on bail and the respondents have not initiated any departmental proceeding against the petitioner for the aforesaid charges. 4. It is the further case of petitioner that vide letter No. 6875 dated 01.06.2012, the petitioner was issued show-cause in terms of Rule 139(b) of the Jharkhand Pension Rules, seeking her reply to which the petitioner replied requesting the concerned authorities to provide her certain documents. Thereafter, the petitioner made several representations requesting therein to provide the documents as demanded by her earlier but the same has not yet been provided to the petitioner for the reasons best known to the respondent-authorities. It is the further case of petitioner that though the respondents provided certain documents to the petitioner but the same are not connected in any manner with the allegation/s charges levelled against the petitioner. 5. Ultimately, vide orders contained in memo No. 9290 dated 20.09.2013 and 10003 dated 15.10.2013, the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. It is the further case of petitioner that though the respondents provided certain documents to the petitioner but the same are not connected in any manner with the allegation/s charges levelled against the petitioner. 5. Ultimately, vide orders contained in memo No. 9290 dated 20.09.2013 and 10003 dated 15.10.2013, the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand, Ranchi has passed order for deduction of 15% pension of petitioner for a period of 5 years from 30.04.2010 to 30.04.2015 and consequently, vide order contained in memo No. 1363 dated 15.11.2013, the Accounts Officer, Office of the Accountant General (A&E), Jharkhand, Ranchi issued an authority slip to the Treasury Officer, Hazaribagh for deduction of 15% pension of petitioner with complying with the provisions under Rule 139(c) of Jharkhand Pension Rules as well as the principles of natural justice. Thereafter, the petitioner preferred an Appeal before the Chief Secretary-cum-Appellate Authority against the order of deduction but till date no order has been passed by the Appellate Authority on her Appeal. Throwing challenge to the order of deduction, the petitioner has been constrained to knock the door of this Court. Submissions of learned counsel for the petitioner: 6. Learned counsel appearing for the petitioner assiduously argues that no notice was given to the petitioner before passing the final order regarding reduction of pension by 15%. Learned counsel further argues that from perusal of impugned order it is apparent that the very basis of passing of the said order is report of the Investigating Officer in the aforesaid R.C. Case which is still pending for adjudication and neither any departmental proceeding was ever initiated against the petitioner nor was any memorandum of charges-sheet served upon her. Learned counsel further argues that pension and gratuity are valuable right and property of an employee after his/her retirement in terms of Articles 19(i)(f), 31 and 300-A of the Constitution of India which cannot be taken-away on account of pendency of any Departmental/ Criminal Proceeding in view of plethora of judgments of Hon’ble Apex Court as well as this Court. Learned counsel further argues that since the respondents have withheld 15% pension of petitioner she is also entitled for interest on the same from the date it has fallen due till the actual date of payment. Learned counsel further argues that since the respondents have withheld 15% pension of petitioner she is also entitled for interest on the same from the date it has fallen due till the actual date of payment. Learned counsel further argues that the impugned order has been passed by the Sanctioning Authority, rather, the same ought has been passed by the respondent-State and as such, the same is not tenable under the provisions of Jharkhand Pension Rules and is fit to be quashed and set aside. Submissions of learned counsel for the Respondents 7. On the other hand, learned counsel appearing for the respondent-State vehemently opposing the contention of learned counsel for the petitioner argues that the Cabinet (Vigilance) Department, Govt. of Jharkhand, Ranchi vide its letter No. 391 dated 01.04.2011 submitted enquiry report of case No. P.E. 40/2010 regarding irregularities committed in appointment in 1st Civil Service Competitive Examination conducted by the Jharkhand Public Service Commission, Ranchi and recommended to take action against the erring Officers. It was alleged that the answer sheets of 35 candidates out of 64, who were appointed by the said examination, were manipulated by means of overwriting or changing marks, giving marks without evaluation, etc. under criminal conspiracy. In para-16 of the said report it was stated that no secrecy was maintained in evaluation of the answer-sheets and the present petitioner by misusing her authority as the Secretary-cum-Examination Controller of Jharkhand Public Service Commission and adopting corrupt practices got the answer-sheets evaluated by preferred person to give weightage to the candidates of choice. Thereafter, an FIR was registered against the petitioner along with others and also the show-cause notice was issued to her vide letter dated 01.06.2012 under Rule-139(b) of the Jharkhand Pension Rules for the said charges. Instead of giving reply to the said show-cause, she tried to deviate the matter by asking for various documents. Though the documents as demanded by the petitioner were provided to her but she did not submit her reply. Since the charges levelled against the petitioner were grave in nature, the order of punishment of withholding 15% pension for 5 years has been inflicted against the petitioner under Rule-139(b) of the Jharkhand Pension Rules. Though the documents as demanded by the petitioner were provided to her but she did not submit her reply. Since the charges levelled against the petitioner were grave in nature, the order of punishment of withholding 15% pension for 5 years has been inflicted against the petitioner under Rule-139(b) of the Jharkhand Pension Rules. Learned counsel further argued that order of punishment has been passed by the Sanctioning Authority and since there is no Cabinet approval it cannot be said that the impugned order has been passed by the competent authority. Findings of the Court 8. Having heard the parties and upon perusal of the documents brought on record, this Court is of the considered view that before delving deep into the matter it would be apposite to examine as to whether impugned order is justified or not? 9. To decide the issue involved in this case, it is important to refer to the provisions, as contained in Rule 43(b), Rule 139(a), (b) and (c) of the Bihar Pension Rules, which are being quoted herein below: “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 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 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 reemployment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) Bihar Public Service Commission, shall be consulted before final orders are passed.” "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.” 10. From perusal of the aforesaid rules it is clear that under Rule-43(b) of Jharkhand Pension Rules, if a proceeding has not been initiated in course of service of a government employee, that will be deemed to be a departmental proceeding even after retirement of the delinquent employee for the purpose of imposing punishment of withholding of part or full amount of pension, subject to certain limitations, as contained in proviso to Rule 43(b). . Foremost requirement under Rule 43(b) of the Jharkhand Pension Rules is that: i) there must be pecuniary loss caused to the Government; & ii) if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct. 11. . Foremost requirement under Rule 43(b) of the Jharkhand Pension Rules is that: i) there must be pecuniary loss caused to the Government; & ii) if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct. 11. Similarly, under Rule 139(b) of the Bihar Pension Rules, it has been provided that if the service of a delinquent employee is not found to be thoroughly satisfactory, the sanctioning authority of pension has got power to make reduction in the amount of pension. Under Rule 139(c) of the Bihar Pension Rules, the State Government has been vested with the revisional power against the order passed by the sanctioning authority, subject to limitation of 3 years from the date of the order of the sanctioning authority by providing a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension. 12. From perusal of the aforesaid Rules it is clear that if no proceeding has been initiated prior to retirement of an employee, the same cannot continue after retirement and the same cannot be converted into Rule-139(c) of Jharkhand Pension Rules and powers under Pension Rules cannot be exercised to reduce the amount of pension merely on the premise of vigilance enquiry and FIR. The criminal case has not yet been concluded and on that basis it cannot be presumed that the service of the petitioner was not satisfactory. For proving misconduct, a regular departmental proceeding has to be initiated. The same was not done in the instant case and no finding has been arrived at in this regard. Misconduct cannot be designed or decided in a criminal case. 13. On the basis of proved allegations and thereafter conviction in the criminal case it is open for the respondents to proceed further but allegations are proved, it is not open to the respondents to proceed and deduct the amount under Rule-139(b) of Jharkhand Pension Rules. Retiral benefits are the rights of an employee and it is not the bounty to be given to the employees after retirement. 14. In the case of State of Bihar & Ors. Vs. Md. Idris Ansari, reported in 1995 Supp. (3) SCC 56, the Hon’ble Apex Court has dealt with the provisions as to under what circumstances the pensionary benefits can be withheld. The relevant paragraphs of the said judgment reads as under: 7. 14. In the case of State of Bihar & Ors. Vs. Md. Idris Ansari, reported in 1995 Supp. (3) SCC 56, the Hon’ble Apex Court has dealt with the provisions as to under what circumstances the pensionary benefits can be withheld. The relevant paragraphs of the said judgment reads 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. 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 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.” 15. The same view was reiterated by the Hon’ble Patna High Court in case of Shambhu Saran Vs. The same view was reiterated by the Hon’ble Patna High Court in case of Shambhu Saran Vs. the State of Bihar, reported in 2000(1) PLJR 665 (FB) relevant para of which reads as under: "In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue." 16. In the instant case never any proceeding was initiated by the respondents, rather, the order of punishment is based only on vigilance report and pendency of the criminal case. 17. This Court in case of Dr. Dudh Nath Pandey Vs. State of Jharkhand, reported in (2013) 3 JLJR 655 (FB) (HC) which has been affirmed by the Hon’ble Apex Court in case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr., reported in (2013) 12 SCC 210 , has categorically held that merely because judicial proceeding is pending against an employee, the amount of retiral/ pensionary benefits cannot be withheld. 18. The petitioner retired in the year 2010 and order of reduction of 15% pension was for 5 years. Now, more than 14 years have passed from the date of passing of such order and on that score also effect of punishment goes and the same cannot be given effect to for indefinite period. 19. As a logical sequitur to the aforesaid observations, rules, guidelines, judicial pronouncements and legal propositions, the impugned order as contained in memo No. 9290 dated 20.09.2013 and 10003 dated 15.10.2013, issued by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand, Ranchi and also the memo No. 1363 dated 15.11.2013 issued by the Accounts Officer, Office of the Accountant General (A&E), Jharkhand, Ranchi are fit to be quashed and set aside and the same are hereby quashed and set aside. 20. The writ petition is accordingly disposed of with a direction to the respondents to pay consequential benefits to the petitioner within a period of 12 weeks from the date of receipt/ production of a copy of this order.