Ajit Kumar Verma And Ors vs State of Jharkhand And Ors

Heard Mr. Anil Kumar Sinha, the learned Senior counsel and Mr. Ravi Kumar Singh, the learned counsel for the petitioners in WPS No.4783 of 2017 and WPS No.1305 of 2017 respectively and Mr. P.A.S. Pati, the learned counsel and Mr. Ashok Kumar Yadav, the learned counsel appearing on behalf of the respondent State in [WPS No.4783 of 2017] and [WPS No.1305 of 2017] respectively.

These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

In both the writ petitions, almost identical facts and law are involved and these writ petition have been heard together.

In W.P.(S) No.4783 of 2017, the facts of the case are :

The petitioner has preferred this writ petition for quashing the order dated 18.07.2017 whereby the deduction of 20% amount from the pension of the petitioner has been ordered. The petitioner retired from the service from the post of Assistant Commissioner of Excise, Ranchi on 30.04.2011. In the year 2005-06, when the petitioner was posted at Bhojpur (Bihar), certain allegations were made about surrender of licence and not realizing the licence fee and other amount. After the bifurcation of the State of Bihar the petitioner 's cadre was allocated to the State of Jharkhand and the petitioner where he joined on being relieved in April, 2006. The pension of the petitioner was sanctioned on W.P.(S) No. 1305 of 2017 02.01.2012. The charge sheet dated 06.09.2013 was served upon the petitioner purportedly to be under Rule 55A of the Civil Services (Classification, Control and Appeal), Rules, 1935 and also under Rule 43(b) of the Jharkhand Pension Rule. The enquiry officer was appointed and the inquiry officer conducted the proceeding wherein one of the charge was not proved but one charge was proved against the petitioner. By order dated 09.09.2016 theanother proceeding was started under Rule 139(b) of the Jharkhand Pension Rules for the same set of charge. By the impugned order dated 18.07.2017 the order for deduction of 20% of the amount has been ordered on the strength of the Rule 43(kha) of Jharkhand Pension Rules. Aggrieved with this the petitioner has moved before this Court.

In W.P(S) No.1305 of 2017 the facts of the case are as under:

The petitioner has preferred this writ petition for quashing the resolution dated 09.01.2017 whereby the departmental proceeding has been initiated against the petitioner after more than three years of his retirement. The petitioner was appointed on the post of Junior Engineer in the erstwhile State of Bihar in 1979. Pursuant thereto the petitioner joined on 16.02.1976 in the district of Aurangabad, Bihar. The petitioner was given charge of the post of Assistant Engineeer by the orders issued by the Road Construction Department vide order dated 9.7.2009. The name of the petitioner appears at serial no.23 in the list. The petitioner was transferred to Rural Works Department, Works Division, Daltongang vide notification dated 08.08.2009. The petitioner 's service was again taken back by the Road Construction Department by order dated 12.082011 and the petitioner was posted at Ranchi. The W.P.(S) No. 1305 of 2017 petitioner remained posted in the Daltonganj from 17.08.2009 to 09.09.2011. The petitioner was provided regular promotion by the order dated 31.07.2010 to the post of Assistant Engineer. A resolution dated 09.01.2017 was issued whereby the departmental proceeding has been directed to be initiated against the petitioner for occurrences during the period he was posted in Works Division, Rural Works Department i.e. during the period between 17.08.2009 to 09.09.2011. Aggrieved with this , the petitioner has moved before this Court.

By order dated 06.07.2018, a direction was issued not to pass final order under Rule 43 (b) of Jharkhand Pension Rules against the petitioner.

Mr. Anil Kumar Sinha, the learned Senior counsel for the petitioner submits that in terms of Rule 43(b) of the Jharkhand Pension Rules the initiation after retirement invoking that rule is beyond the jurisdiction. He submits that the alleged occurrence is of the year 2005 - 06 wherein the charge sheet has been issued on 06.09.2013, whereas the petitioner has already retired on 30.04.2011. He submits that prior to retirement there was no departmental proceeding against the petitioner. He submits that invoking of Rule 43(b) after the retirement that too for the occurrence of 2005-06 has been issued without application of mind. He submits that in the Rule 43(b) there is clear rider of four years of initiation of proceeding. By invoking that rule, he submits that once Rule 43(b) has been invoked there was no occasion to further pass the order under Rule 139 of the Jharkhand Pension Rules. He further submits that for invoking Rule 139 rather show cause was required to be issued to the petitioner that was not done in the case in hand. He submits that in that view of the matter, the impugned orders are fit to be quashed. He W.P.(S) No. 1305 of 2017 submits that the case of the petitioner is fully covered and the controversy in the case in hand has been set at rest by the Hon'ble Supreme Court in case of 'State of Bihar v. Mohd. Idris Ansari', 1995 Supp (3) SCC 56. Paragraph no.9 of the said judgment is quoted hereinbelow:

"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:

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.

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 W.P.(S) No. 1305 of 2017 not beyond that period.

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 W.P.(S) No. 1305 of 2017 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."

On these grounds, he submits that the writ petition is fit to be allowed and the impugned orders must go.

Mr. Ravi Kumar Singh, the learned counsel appearing for the petitioner in W.P.(S) No.1305 of 2017 adopted the arguments of Mr. Anil Kumar Sinha, the learned Senior counsel appearing for the petitioner in the respective case and added that after initiation of the departmental proceeding the petitioner has already approached and the Court has also directed not to pass final order under Rule 43(b). He submits that this balance of convenience, prima facie case was shown before the Court and that is why that order has been passed. Mr. Singh, the learned counsel further submits that the petitioner retired on 31.12.2013 wherein the departmental proceeding was initiated on 09.01.2017. He submits that Rule 43 (b) will not apply in the case of the petitioner and he submits that the case of the petitioner is fully covered in the light of the judgment rendered by the Hon'ble Supreme Court in the case which has been relied by Mr. Sinha, the learned Senior counsel for the petitioner.

Mr. Pati, the learned State counsel has tried to justify the order passed by the State. He submits that Rule 43(b) has rightly been involved against the petitioners. The allegations against the petitioners were disclosed later on and that is why the Rule 43(b) has been invoked.

W.P.(S) No. 1305 of 2017

Mr. Pati, the learned State counsel submits that the case of W.P.(S) No. 4783 of 2017, the show cause was issued to the petitioner by the State of Bihar and the purposely the petitioner has not replied and that is why the delay occurred. Both the learned State counsels submit that the State has suffered a huge financial loss.

Having heard the learned counsels appearing for the parties, the Court has ventured to go through the materials on record. In the light of the above facts and considering the submissions of the learned counsels for the parties, the only question required to be answered by this Court is, as to whether after retirement of the petitioners Rule 43(b) can been invoked for the purpose if the cause of action is four years prior to the date of initiation. It transpires that in the case of W.P.(S) No.4783 of 2017, the allegation against the petitioner is of the year 2005-06 whereas in the case of W.P.(S) No.1305 of 2017 the allegation against the petitioner is of 2009 to 2011, prior to retirement no departmental proceeding was initiated against the petitioners. As per the Rule 43(b) and 139 of the Jharkhand Pension Rules, there is requirement of providing hearing to the delinquent employee which has not been done in the case in hand. The pension of the petitioners has already been sanctioned. However, in the case of W.P.(S) No.1305 of 2017, pursuant to interim order of this Court, final order has not been passed. In the case, Rule 43(b) has already been invoked. There was no occasion of switch over to the Rule 139. The Rule 139 (a) and (b) is required to be followed on the ground of alleged past misconduct and was not based on the ground that the service record of the petitioners was not thoroughly satisfactory. On perusal of the Rule 43(b) and Rule 139(a) and (b) there is no scope that the alleged misconduct was committed by W.P.(S) No. 1305 of 2017 the petitioners prior to four years from the date on which the show cause notice dated 07.09.2013. The respondent authorities have got no power to invoke Rule 139(a) and (b) on the ground of misconduct. Once on the condition precedent of passing the order under Rule 43(b) is to consult the Public Service Commission shall be considered before the final order has passed is also not complied with. This is also not happened in the case in hand.

As a cumulative effect of the above discussions, the impugned orders dated 18.07.2017 and 09.01.2017 will not sustain in the eye of law.

Accordingly, the impugned orders dated 18.07.2017 and 09.01.2017 are quashed.

The writ petition stands allowed and disposed of.

Interim order dated 06.07.2018 passed in W.P.(S) No.1305 of 2017 is vacated.

The petitioner of the case of W.P.(S) No.4783 of 2017 is entitled for the consequential benefits.

I.A., if any, stands disposed of.