Priya Ranjan vs State Of Jharkhand And Ors

Heard Mr. Deepak Kumar, learned counsel for the petitioner and Mrs. Surbhi, learned counsel for the respondent-State.

This writ petition has 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 on merit.

The petitioner has preferred this writ petition for quashing the order dated 23.10.2019 passed by the Engineer-in-Chief, Road Construction

Department, Jharkhand, Ranchi, whereby, departmental proceeding under Rule 43(b) proviso (a)(II) of the Jharkhand Pension Rules has been directed

to be initiated against the petitioner.

The facts of the present case is that the petitioner was appointed by terms of notification dated 29.12.1987 on the post of Junior Engineer. The

petitioner joined the service on 25.01.1988 in Rural Development Department. The petitioner was transferred by notification dated 12.01.1988 to

Saran district, where, he did not join. Thereafter, the petitioner was again transferred to Hazaribagh district by notification dated 19.02.1988, where, he

joined in the office of Deputy Development Commissioner, Hazaribagh on 20.02.1988. Thus, the petitioner was kept in want of posting for the period

between 25.01.1988 to 19.02.1988. In the year 2000-01, the petitioner was posted as Junior Engineer under the Road Construction Division, Road

Construction Department, Koderma. Vide order dated 07.05.2012, the petitioner was informed about the irregularities committed by him during his

posting under the provisions contained in Bihar and Orissa (Discipline and Appeal) Rules, 1935 and he was suspended with immediate effect. On

25.08.2012, the petitioner received a notice to show-cause, wherein, it was alleged that during spot verification of Koderma-Jamua Road, some

irregularities have been noticed and by the show-cause notice, departmental proceeding was sought to be initiated against him. The petitioner

submitted his reply to show-cause notice and denied the allegations. The petitioner submitted in his reply that he is innocent and he has not committed

any irregularities during construction of the Koderma-Jamua Road and the charges levelled against him are baseless. The respondents, without

initiating any departmental proceeding, passed final order and awarded punishment to the petitioner withholding of two yearly increment with

accumulative effect and nothing will be paid to the petitioner during the period of suspension other than subsistence allowance, but the period of

suspension shall not be considered as a break in service. The order dated 22.12.2012 was challenged by the petitioner by filing a writ petition being

W.P. (S) No. 6783 of 2018. The High Court has quashed the order dated 22.12.2012 vide order dated 16.04.2019 and the respondents were kept at

liberty to proceed as per law.

Mr. Deepak Kumar, learned counsel for the petitioner assailed the impugned order on the ground that the order dated 22.12.2012 has already been

quashed by the High Court in earlier round of litigation. However, the High Court observed to proceed in accordance with law, but the High Court has

not directed the respondents to act pursuant to earlier show-cause. He submitted that the respondents have no power to initiate departmental

proceeding after superannuation of the petitioner for the alleged misconduct in the year 2012, which is more than 6 years prior to his superannuation.

He further submitted that in view of Rule 43 (B) proviso (a)(ii) of the Jharkhand Pension Rules, if it is not within four years of the initiation of the

departmental proceeding, the order will not sustain in the eyes of law. He also submitted that when the High Court has already quashed the earlier

order, initiation of same proceeding is not in accordance with law. To buttress his argument, he relied upon the judgment rendered by the Hon'ble

Supreme Court in the case of State of Bihar and Others v. Mohd. Idris Ansari, reported in 1995 Supp (3) SCC 5 6and submitted that in the identical

facts and circumstances, the Hon'ble Supreme Court has interfered and quashed the order.

Paragraph 7 of the said judgment is quoted herein below:

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.

Per contra Mrs. Surbhi, learned counsel for the respondent-State submits that in the earlier round of litigation, the High Court has quashed the order,

but at the same time, liberty was provided to the respondents to proceed afresh. She referred to Rule 43(b) of the Jharkhand Pension Rules and

submitted that in view of this Rule, the impugned order has been passed. She further submitted that the departmental proceeding was initiated before

the retirement of the petitioner, which automatically converted after retirement of the petitioner in view of Rule 43(b) of the Jharkhand Pension Rules.

Having heard learned counsel for the parties, the Court examined the Rule 43(b) of the Jharkhand Pension Rules. The departmental proceeding will

have to comply with the requirement of Rule 43(b). Consequently, a retired Government servant can be found guilty of grave misconduct during his

service period pursuant to the departmental proceeding conducted against him even after his retirement, but such proceeding could be initiated in

connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceeding against him. The

petitioner has already retired from the service and the impugned order has been passed on the ground of misconduct on 23.10.2019, whereas,

departmental proceeding was initiated in the year 2012. Rule 43(b) could have been invoked if the misconduct comes within 4 years prior to

retirement, whereas, in the present case it has been re- opened after 6 years. In the earlier round of litigation, the High Court has already quashed the

punishment order dated 22.12.2012 and liberty was provided to the respondents to proceed afresh, but the High Court did not permit the respondents

to resume the earlier departmental enquiry, which was of more than 6 years earlier. Thus, it was not open to the respondents to act upon the earlier

proceeding and invoke Rule 43(b) of the Jharkhand Pension Rules. The facts of the present case as well as the case of State of Bihar and Others v.

Mohd. Idris Ansari (supra) are identical in nature. In that view of the matter, the impugned order dated 23.10.2019 passed by the Engineer-in-Chief,

Road Construction Department, Jharkhand, Ranchi, contained in Annexure-5 of the writ petition is quashed.

Accordingly, the writ petition stands allowed and disposed of.