Nagendra Thakur vs The State of Jharkhand

Mr. H.C. Mishra, J.—Heard learned counsel for the petitioner and learned counsel for the respondent State.

Aggrieved by the resolution contained in memo No. 298 dated 5.8.2014, initiating a departmental proceeding against the petitioner, as contained in Annexure-12 to the writ petition, issued by the Joint Secretary to the State Government, in its Department of Human Resource Development, Jharkhand, Ranchi, the petitioner has filed this writ application for quashing the same, as also for quashing the entire departmental proceeding initiated against him.

Sans unnecessary details, the necessary facts of this case lie in a short compass. The petitioner was appointed in the then Bihar Education Service Class-II cadre in the unified State of Bihar in the year 1984. He superannuated from service on 31.1.2014, while holding the post of Regional Deputy Director of Education, Kolhan Division, Chaiabsa. In the year 2006, the petitioner was posted as Regional Deputy Director of Education, North Chotanagpur Division, Hazaribag, where due to some allegations against him during his posting at Hazaribag, the petitioner was put under suspension and a departmental proceeding was initiated against him by the resolution of the State Government as contained in memo No. 170 dated 15.10.2013, brought on record as Annexure-8 to the writ application. With the said resolution, the memo of charge was also served upon the petitioner as Annexure-''Ka'', which related to the alleged misconduct committed by the petitioner in the year 2006.

The petitioner challenged the said order, whereby he was put under suspension, before this Court in W.P.(S) No. 6515 of 2013. Having found that the order was not issued in the name of the Governor and not authenticated in the manner specified in the Rules made by the Governor, this Court, by order dated 30.1.2014 passed in W.P.(S) No. 6515 of 2013, as contained in Annexure-9 to the writ application, quashed the aforesaid Memo No. 170 dated 15.10.2013 and allowed the writ petition. The next day, i.e., on 31.1.2014, the petitioner superannuated from service.

After superannuation of the petitioner from service, the impugned resolution as contained in Memo No. 298 dated 5.8.2014 was issued by the Joint Secretary to the State Government in the Department of Human Resource Development, Jharkhand, Ranchi, as contained in Annexure-12 to the writ application. In the fresh resolution, the defect, for which the earlier order was quashed by this Court, was rectified. Since the petitioner had already superannuated, the impugned order dated 5.8.2014 was issued under the provisions of Section 43(b) of the Jharkhand Pension Rules, initiating the departmental proceeding against the petitioner. Along with this resolution also, the memo of charges was attached as Annexure-''Ka'', which is the same memo of charges dated 15.10.2013, as contained in the earlier resolution dated 15.10.2013. Pursuant to this order, the departmental proceeding continued and the enquiry report has also been submitted on 10.9.2014, which is contained in Annexure-15 to the writ application, and the petitioner has also been given the second show cause notice. The petitioner filed this writ petition challenging the resolution dated 5.8.2014, as contained in Annexure-12, whereby the departmental proceeding was initiated against him.

Learned counsel for the petitioner has submitted that the order initiating the departmental proceeding afresh is absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, admittedly the memo of charges attached with the impugned resolution, as contained in Annexure-12, clearly shows that they belong to the period 2006, i.e., much prior to four years of the day of his retirement. Learned counsel has also placed reliance upon Rule 43(b) of the Jharkhand Pension Rules submitting that proviso (a) (i) (ii) of Rule 43(b) clearly prohibits initiation of any departmental proceeding for an event that had taken place more than four years before the institution of such proceeding. Placing reliance upon this proviso, learned counsel submitted that the impugned resolution dated 5.8.2014 initiating the departmental proceeding afresh against the petitioner after his retirement, for the alleged charges relating to the year 2006, cannot be sustained in the eyes of the law. Learned counsel further submitted that by the order contained in Annexure-9 to the writ application, this Court had quashed the entire resolution as contained in Memo No. 170 dated 15.10.2013, by which the petitioner was put under suspension and the departmental proceeding was initiated, though the petitioner had only challenged his suspension in the said writ application. It is submitted that the entire order suffered from the same vice and accordingly, the same was quashed by this Court by order dated 30.1.2014 in W.P.(S) No. 6515 of 2013, as contained in Annexure-9 to the writ application. It is submitted that in the said order dated 30.1.2014, it is nowhere stated that the impugned order, so far it related to the only suspension of the petitioner, was quashed, rather, the entire memo issued by the State Government was quashed, and no liberty was given to the State Government for initiating the departmental proceeding afresh. As such, the fresh impugned resolution dated 5.8.2014, as contained in Annexure-12 to the writ petition, is also in teeth of the order dated 30.1.2014 passed by this Court in W.P. (S) No. 6515 of 2013, as contained in Annexure-9 to the writ application. Learned counsel further submitted that even though the same memo of charges dated 15.10.2013 has been served with fresh resolution dated 5.8.2014, but in the resolution, it is no where stated that the previous departmental proceeding was being resumed against the petitioner, rather, the impugned resolution clearly indicates that a fresh departmental proceeding has been initiated against the petitioner.

In support of his contention, learned counsel for the petitioner placed reliance upon the decision of the Hon''ble Apex Court, in State of Bihar & Ors, v. Mohd. Idris Ansari, reported in 1995 Suppl (3) SCC 56, wherein where, the punishment awarded in a departmental proceeding to the respondent was quashed by the High Court, and thereafter the respondent had retired from service. After his retirement, the respondent was again served with the notice that since he had already retired from service and the period of charges were prior to four years, no action could be taken against him under Rule 43(b) of the Rules and accordingly, he was noticed to show cause as to why the deduction of 70% of his pension should not be made under Rule 139 of the Bihar Pension Rules. Subsequently, the order was also passed withholding 70% of his pension. In the backdrop of those facts, the Apex Court laid the law as follows:-

"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 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. ------------ ."

Placing reliance upon the aforesaid decision, learned counsel submitted that the facts of this case are almost similar to the case decided by the Supreme Court and the Supreme Court had also taken note of the fact that the High Court did not permit the respondent to resume the earlier departmental proceeding from the stage it got vitiated. Same is the circumstance in the present case also. Learned counsel submitted that the resolution contained in memo No. 298 dated 5.8.2014 as contained in Annexure-12 to the writ application and all the subsequent actions cannot be sustained in the eyes of law and are fit to be quashed.

Learned counsel for the State, on the other hand, has opposed the prayer, submitting that in earlier writ petition in W.P.(S) No. 6515 of 2013, the petitioner had not challenged the departmental proceeding initiated against him. He had only challenged that portion of the order by which, the petitioner was put under suspension and by quashing the resolution dated 15.10.2013, the High Court intended to only quash the suspension of the petitioner and not the departmental proceeding, even though it is not stated in the so many words in the order passed by this Court, as contained in Annexure-9 to the writ application. Learned counsel further submitted that since after quashing the earlier order, the petitioner had superannuated, the State Government had no option, but to initiate the departmental proceeding against the petitioner under Rule 43(b) of the Jharkhand Pension Rules, but the fact remains that the departmental proceeding had already been initiated against the petitioner while the petitioner was in service and the same memo of charges dated 15.10.2013 was attached with the fresh order issued under Rule 43(b) of the Jharkhand Pension Rules, as contained in Annexure-12 to the writ petition. Learned counsel has accordingly, submitted that after retirement of the petitioner, though fresh order has been issued taking care of Rule 43(b) of the Jharkhand Pension Rules, but in fact, it is the previous departmental proceeding, which was initiated against the petitioner prior to his retirement and even the memo of charges attached to the resolution dated 5.8.2014 is the same memo of charges, which was attached with the earlier resolution dated 15.10.2013. Learned counsel for the State accordingly, submitted that there is no illegally in the impugned order and in the present case, the enquiry has already been concluded, enquiry report has been submitted and the second show cause has already been issued to the petitioner. Learned counsel submitted that no case is made out for any interference in the departmental proceeding against the petitioner by this Court at this stage, which has already reached its conclusive stage.

Having heard learned counsels for both the sides and upon going through the record, I find that though the memo of charges in the previous resolution dated 15.10.2013 and the present impugned resolution dated 5.8.2014 are the same, but the fact remains that the resolution dated 5.8.2014, as contained in Annexure-12 to the writ application, clearly states that the State Government have decided to hold departmental proceeding against the petitioner, under Rule 43(b) of the Jharkhand Pension Rules. Thus, the contention of the learned counsel for the State that it was the continuation of the earlier departmental proceeding, is not at all supported by the resolution of the State Government, as contained in Annexure-12 to the writ application and the same cannot be accepted. The petitioner, in fact, has been put to departmental proceeding afresh by resolution dated 5.8.2014, under Rule 43(b) of the Jharkhand Pension Rules, and it no where states that it shall be only the continuation of the earlier departmental proceeding from the stage it got vitiated.

Rule 43(b) of the Jharkhand Pension Rules, reads as follows:-

"43. (a) ---------------------- .

(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 re employment;

(i) shall not be instituted save with 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) ------------------;

(b) -----------------; and

(c) -----------------.

Explanation- For the purposes of the 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) xxx xxx xxx xxx."

A plain reading of proviso (a) (i) (ii) of Rule 43(b) clearly shows that if the departmental proceeding is not initiated while the Government servant was on duty, either before retirement or during re employment after retirement, the same cannot be initiated with respect to an event which took place more than four years before the institution of such proceeding. Explanation (a) of Rule 43(b) clearly lays down that the departmental proceeding shall be deemed to have been initiated when the charges framed against the petitioner are issued to him.

In the present case, after quashing the earlier memo No. 170 dated 15.10.2013 by this Court, a fresh resolution has been issued by memo No. 298 dated 5.8.2014 initiating the departmental proceeding against the petitioner and also serving the memo of charges afresh. Though the memo of charges is dated 15.10.2013, but the fact remains that this memo of charges has again been served upon the petitioner on 5.8.2014 and according to the Explanation (a) of Rule 43(b), the departmental proceeding shall be deemed to be initiated from the date on which fresh resolution was issued, i.e., on 5.8.2014. I also find force in submission of the learned counsel for the petitioner that no liberty was given by this Court to the State Government either to start the departmental proceeding afresh, or to resume the earlier departmental enquiry from the stage it got vitiated, and the entire memo No. 170 dated 15.10.2013 was quashed by this Court by order dated 30.1.2014 in W.P.(S) No. 6515 of 2013, without giving any such liberty to the State Government. The fresh memo No. 298 dated 5.8.2014 issued under Rule 43(b) of the Jharkhand Pension Rules is clearly in teeth of Rule 43(b) to the proviso (a) (i) (ii), as the memo of charges related to the period 2006, i.e., to a period prior to four years of the institution of the departmental proceeding. As such, the same cannot be sustained in the eyes of the law and the entire departmental proceeding initiated against the petitioner is absolutely vitiated and has to be quashed on the same ground.

In view of the foregoing discussions, the impugned resolution as contained in memo No. 298 dated 5.8.2014 issued by the Joint Secretary to the State Government in its Department of Human Resource Development (now known as School Education and Literacy Department), brought on record as Annexure-12 to the writ application, is hereby, quashed. Consequently, the entire departmental proceeding against the petitioner, including the enquiry report, as also the second show cause notice issued to the petitioner, also stand quashed.

This writ application is accordingly, allowed.