Sheo Prasad Pathak vs The State of Jharkhand and Others

This appeal has been preferred by the appellant against the judgment and order dated 27th October, 2009 passed in W.P. (S) no. 2626 of 2003, whereby learned Single Judge has been pleased to dismiss the writ petition, which had been filed by the petitioner/appellant, challenging the order dated 22nd February, 2003 issued by the Government of Bihar under which a decision was taken to recover an amount of Rs. 33,76 lacs from the pensionary benefits of the appellant, such as pension, gratuity, etc. That apart his full pension was also ordered to be forfeited. This order was passed pursuant to a (departmental enquiry holding the appellant guilty of the charge of misappropriation of a sum of Rs. 33,76 lacs and further for a sum of Rs. 85,786/-.

The departmental proceeding, admittedly, had been initiated against the appellant while he was still in service as a Range Officer in the department of Forest and Environment, Government of Bihar and the petitioner/appellant had been put under suspension in contemplation of a departmental proceeding. The departmental proceeding did not conclude while the appellant was in service, but finally it concluded when the appellant superannuated from the service. The petitioner/appellant duly participated in the enquiry proceeding and availed of full opportunity to contest the charges, which have been levelled against him and after scrutiny and adjudication of the charges, the enquiry report was submitted on 23rd July, 1999, wherein the charges against the petitioner/appellant regarding defalcation and misappropriation of a sum of Rs. 33,76 lacs and also for a sum of Rs. 85,786/- was held to have been proved on the basis of the materials on record. Consequently, the order dated 22nd February, 2003, referred to herein before, was passed against the appellant, wherein a decision was taken to recover the defalcated amount of Rs. 33,76 lacs from the pensionary benefits of the petitioner/appellant, which included the amount of gratuity and other retiral benefits, as already recorded herein before. The full pension was also ordered to be forfeited.

The appellant assailed the order passed by the respondent-State by filing a writ petition, which was dismissed by the learned Single Judge, observing therein that the Enquiry Officer had dealt with the entire materials and evidences on record and, thereafter, had recorded the finding of fact that the charges against the petitioner/appellant have been proved. In that view of the matter, the impugned resolution was not considered fit to be interfered with by the learned Single Judge and hence, the writ petition was dismissed.

The appellant, feeling aggrieved with the judgment and order passed by the learned Single Judge, has preferred this appeal in support of which first of all it was contended by learned Counsel for the appellant that the pensionary benefit of the appellant could not have been forfeited beyond the period of three years from the date of sanction of the pension, as Rule 139(c) of the Bihar Pension Rules envisages that no order can be passed forfeiting pension beyond the period of three years from the date of its sanction and, as the order sanctioning pension was passed on 28th July, 1999, the subsequent order forfeiting pension could not have been passed, The counsel had Initially submitted that the order forfeiting the pension itself was bad in the eye of law which we find difficult to agree with as the order forfeiting pension has been passed after full-fledged enquiry in which the appellant had duly participated and the order of punishment also could not be held to be disproportionate, as the amount which has been proved to be defalcated is a huge amount of Rs. 33,76 lacs, which would have taken long years for the appellant to earn as pensionary benefits.

Confronted with this aspect of the matter, the counsel again put emphasis upon Rule 139(c) of the Bihar Pension Rules for assailing the order of pension on the ground of limitation, but we are of the view that in the wake of decision of the Full Bench of this Court in the case of Jai Govind Singh v. Bihar State Electricity Board and Ors., repotted in 2004(2) JLJR 103, holding therein that the enquiry proceeding can be allowed to continue even after retirement of the employee, makes continuation of the enquiry against the petitioner well within the jurisdiction of the authorities and if the enquiry is allowed to continue even after superannuation of an employee, it would be anomalous to infer that the punishment should not be imposed on the delinquent even though the charges are held to have been proved, Once it is held that the enquiry proceeding can proceed even after retirement of the person, the employee cannot get away from the imposition of punishment and, therefore, if the order of punishment forfeiting the pensionary benefits of the appellant had been passed which prima facie would far exceed the amount which the appellant would have earned by way of pensionary benefits, the order on merit is surely not fit to be interfered with.

The reliance placed by the counsel on Rule 139(c) of the Bihar Pension Rules obviously cannot come to the rescue of the appellant, as the said Rule clearly will be held applicable in a circumstance where the order of forfeiture of pension has been passed in absence of any enquiry proceeding or any adverse order not being in existence against the employee, which is not the case in the instant matter. Further more, the Rule, on which reliance has been placed, does not contemplate the existence of a punishment order for counting the period of limitation, as the Rule merely indicates and envisages that the forfeiture of pension could not be made beyond the period of three years from the date of its sanction, but if the order of sanction itself is erroneous then the question of limitation cannot be allowed to prevail over the order granting sanction of pension, which itself would be difficult to uphold. In the instant matter, the order granting sanction to pension itself had been passed overlooking the fact that an enquiry proceeding was pending against the delinquent and the sanctioning of pension itself was not aboveboard and hence the question of limitation cannot be held to be applicable in a circumstance where the order sanctioning pension itself was fit to be questioned.

Thus, apart from the reasons assigned by the learned Single Judge, the order forfeiting pension is not fit to be interfered with. We may further add that it was open for the petitioner/appellant to challenge the order of punishment forfeiting pension, as it normally happens when an employee is dismissed or any other punishment is imposed on him, but once the employee submitted to the finding recorded by the Enquiry Officer and, thereafter, the order of punishment was imposed, the appellant cannot be allowed to get over the same by adopting an escape route of the law of limitation to the effect that the order sanctioning pension cannot be passed beyond the period of three years. Besides this any imposition of restriction as contemplated under Rule 139(C) of Bihar Pension Rules cannot be allowed to prevail, in a situation like this, as the order sanctioning pension could not attain its finality in the wake of the enquiry proceeding having ended against the appellant.

Having looked into the aforesaid aspect of the matter, it is further noted that the order forfeiting pension had been passed by the Government of Bihar on 22nd February. 2003, but the appellant filed the writ petition in the State of Jharkhand only on the ground that he was receiving pension in the State of Jharkhand. Thus, the question of maintainability of the writ petition in the State of Jharkhand also is not free from doubt, but we do not propose to go into this aspect of the matter, as this point had not been raised by any of the party before the Single Bench.

In view of the aforesaid discussions, we find no substance in this appeal. Consequently, it is dismissed.