1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W. P. (S) No. 3678 of 2014 … Jai Shankar Jha, son of late Krishna Chandra Jha, residing at Flat No. 102, Kush Apartment, Ram Janki Nagar, Road No. 2, Hawai Nagar, P.O. - Hatia, P.S. Jagannathpur, Town and District – Ranchi. … Petitioner -V e r s u s- 1. The State of Jharkhand through the Chief Secretary, having office at Project Building, P.O. & P.S. Dhurwa, Town and District- Ranchi.
2. The Principal Secretary/Secretary, Personnel, Administrative Reforms and Rajbhasha Department, having office at Project Building, P.O. & P.S. Dhurwa, Town and District- Ranchi.
3. The Additional Secretary to Government, Department of Personnel, Administrative Reforms and Rajbhasha having office at Project Building, P.O. & P.S. Dhurwa, Town and District- Ranchi.
4. The Principal Secretary/Secretary, Department of Health, Medical Education and Family Welfare, having office at Nepal House, P.O. & P.S. Doranda, Town and District- Ranchi.
5. The Under Secretary to Government, Health, Medical Education and Family Welfare Department having office at Nepal House, P.O. & P.S. Doranda, Town and District- Ranchi. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. Manoj Tandon, Advocate. For the Respondent-State: - Mr. Yogesh Modi, J.C. to A.A.G. … C.A.V. On : - 18.01.2016 Delivered On :
16. 03/2016 ... Per Pramath Patnaik, J.
In the accompanied writ application, the petitioner has inter alia prayed for issuance of writ/direction for quashing/setting aside the decisions contained in Notification dated 07.10.2013, pertaining to withholding of 5 per cent pension of the petitioner for two years and for quashing and setting aside the appellate order dated 07.02.2014, passed by the respondent no. 1, rejecting the appeal preferred by the petitioner and for a direction to the respondents to pay the full pensionary benefits to the petitioner on his retirement from the post of the Section Officer, Home (Jail) Department on 31.03.2012.
2. Sans details, the facts, as disclosed in the writ petition, is that the petitioner was appointed on the post of the Assistant on 16.12.1975 in the Unified State of Bihar. During the course of his service, the petitioner was promoted to the post of the Section Officer and was granted second A.C.P. 2 on completion of 24 years of service w.e.f. 01.04.2000 and third M.A.C.P. on completion of 30 years of service w.e.f. 01.09.2008 respectively. During his posting, as Section Officer in the Health, Medical Education and Family Welfare Department, Government of Jharkhand, Ranchi, a preliminary enquiry was conducted against him and a decision was taken for framing of charge against the petitioner. The petitioner was directed to submit a reply within 15 days to the charge, as is evident from the letter dated 28.09.2007 vide Annexure-4 to the writ application and the petitioner submitted his reply denying the charges levelled against him. It appears that no enquiry officer was ever appointed to enquire into the charges against the petitioner. Thereafter, the petitioner was granted 03rd M.A.C.P. w.e.f. 01.09.2008 i.e. on completion of 30 years of service on 01.09.2008, as appears from office order dated 03.11.2010, wherein the name of the petitioner is placed at Serial No. 52 but to the utter surprise and dismay, while the petitioner was at the verge of his retirement, a letter dated 20.10.2011 was written by the Health, Medical Education and Family Welfare Department, Government of Jharkhand to the Joint Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi enclosing the copy of the preliminary enquiry report dated 03.08.2007 and the Principal Secretary of the Personnel, Administrative Reforms and Rajbhasha Department informed the Secretary of Health, Medical Education and Family Welfare Department that the charges against the petitioner have not been substantiated in absence of adequate evidence, which would be evident from the letter dated 20.12.2011 vide Annexure-8 to the writ petition. Since the services of the petitioner were found to be satisfactory in all respects, a decision was taken to promote the petitioner to the post of the Under Secretary as appears from the proceeding of the meeting dated 03.03.2012, in which the name of the petitioner appear at Serial No. 2, as per Annexure-9 to the writ petition. In the said proceeding of the meeting dated 03.03.2012, it is mentioned in the extreme right column, as against the petitioner, that the Health Department could not produce adequate evidence in respect of the charges levelled against the petitioner and the petitioner was allowed to retire on 31.03.2012 without any demur or protest. After 3 retirement, to the utter consternation of the petitioner vide letter dated 04.08.2012 of the Health, Medical Education and Family Welfare Department basing on the letter dated 22.10.2011, it was stated that the petitioner was guilty of charge as per Annexure-10 to the writ petition. Thereafter, the Secretary, Personnel, Administrative Reforms and Rajbhasha Department wrote a letter to the Health Department that there was no adequate evidence made available by the Health Department to substantiate the charge against the petitioner as per the letter dated 14.08.2012 at Annexure-11 to the writ petition. Again, vide letter dated 08.09.2012, the Personnel Administrative Reforms Department, which is the parent department of the petitioner, requested the Health Department to make available the evidence to substantiate the charges against the petitioner vide Annexure-12 to the writ petition and thereafter vide letter dated 03.05.2013, the petitioner was asked to submit reply within 14 days with respect to the charges levelled against him on the basis of preliminary enquiry report dated 03.08.2007 as per Annexure-14 to the writ petition and the petitioner also submitted reply on 08.05.2013, as per Annexure-15 to the writ petition. Thereafter, the impugned decision vide Notification dated 07.10.2013 was taken, whereby 5 per cent pension of the petitioner was ordered to be withheld for two years. Thereafter, the petitioner, being aggrieved by the impugned decision dated 07.10.2013 (Annexure-16), submitted an appeal on 05.11.2013 to the respondent No. 1, which has been rejected by the appellate authority on 07.02.2014 (Annexure-18).
3. Being aggrieved by the impugned decisions dated 07.10.2013 (Annexure-16) and the order of the appellate authority dated 07.02.2014 (Annexure-18), the petitioner left with no other efficacious and speedy remedy, has been constrained to invoke the extraordinary jurisdiction of this Court, under Article 226 of the Constitution of India, for redressal of his grievance.
4. Counter affidavit has been filed on behalf of the respondent nos.2 and 3, controverting the averments made in the writ application. In the counter affidavit, it has been submitted that the petitioner has committed a serious misconduct by replacing enquiry report of the conducting officer from corresponding side of the file and relevant order sheet in connection 4 with the enquiry report. It is also submitted that after examination of the enquiry records, the competent authority i.e. appointing authority has decided to award penalty of dismissal against the delinquent employee. A second show-cause notice was also issued to the delinquent employee. After getting the report of misconduct, committed by the petitioner, some of the records and enquiry done was also sought by the disciplinary authority i.e. respondent no. 2 from the concerned department and the final report was received vide letter dated 04.08.2012. In the meantime, the petitioner was superannuated on 31.03.2012. After superannuation of the petitioner, the Government has only option to take appropriate action against the delinquent under the provisions of the Jharkhand Pension Rule. In Rule 139 of the Jharkhand Pension Rules, provisions have been made. The provisions have been made as per Annexure-A to the counter affidavit. Since the misconduct committed by the petitioner was very serious in nature and the evidence based on preponderance of probability was also available against the petitioner, the disciplinary authority decided to take appropriate action, as provided in Rule 139 (b) of the Jharkhand Pension Rules. Accordingly, in compliance of the rule, a show cause notice was also served to the petitioner asking his defence. After examining the whole episode of misconduct and the show cause filed by the petitioner, the disciplinary authority has finally reached to the conclusion that the petitioner has failed to do his supervisory duty as provided in Section IV (f) of the Secretarial Instructions as per Annexure-B to the counter affidavit. It is further submitted that the penalty of withholding of 5 per cent pension amount was passed by the disciplinary authority under the provisions of 139 (b) of the Jharkhand Pension Rules and an appeal was also preferred by the petitioner to the appellate authority i.e. Chief Secretary, Government of Jharkhand and after hearing the submissions of the petitioner, the Appellate Authority reached to the conclusion that a serious misconduct has been committed by the petitioner by replacing the records against a delinquent employee, therefore, he found his services unsatisfactorily and lack of supervision of the work of the section and on completion and hearing the appeal, the appellate authority expressed his full satisfaction with the conclusion of the Appointing Authority and agreed to pass the 5 same order, as passed by the Appointing Authority.
5. Counter affidavit has also been filed by the respondent nos. 4 and 5, wherein, it has been submitted that the petitioner was functioning earlier in the Department of Health, Medical Education and Family Welfare as Section Officer was found prima facie involved in the allegation relating to destroying few official files and documents having connection to conduct of departmental proceeding of another employee, namely, Shri Ganauri Singh against whom department has decided to award dismisal from services for the proved allegations and he was the custodian of documents in question. The department of Health has referred the matter before Administrative and Personnel Reforms and Rajbhasha, who is a cadre controller as well as the appointing authority of the petitioner to conduct the departmental proceeding against him for the allegation in which the petitioner has been found involved and finally the appointing department has concluded the proceeding and found him guilty for the allegation levelled against him. Accordingly, the order dated 07.10.2013 vide Annexure-16 has been passed as a quantum of punishment, which is proper, justified and in accordance with law and needs no interference by this Hon'ble Court.
6. Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Yogesh Modi, learned J.C. to A.A.G appearing for the respondent-State.
7. During course of arguments, Mr. Manoj Tandon, learned counsel for the petitioner has vehemently submitted that the impugned order of punishment of withholding of 5 per cent pension of the petitioner, is wholly arbitrary, illegal and unconstitutional and has been passed in colourable exercise of power. Learned counsel further submits that the impugned order of punishment has been passed without appointment of an inquiry officer and the punishment has been inflicted on the basis of the preliminary enquiry, which was undertaken on 03.08.2007 i.e. prior to framing of charge on 22.08.2007 and therefore, the impugned order is violative of Articles 14, 21 and 300-A of the Constitution of India. The learned counsel for the petitioner also submits that the impugned order is in the teeth of the spirit of Rule 43 (b) read with Rule 139 of the Jharkhand Pension Rules. In support of his contentions, learned counsel for the 6 petitioner has referred to the decision of the Hon'ble Supreme Court reported in 1995 Supp (3) SCC56in State of Bihar & Others-versus- Mohd. Idris Ansari, wherein, the Hon'ble Apex Court while referring to Rule 139 (a) & (b) and Rule 43 (b) of the Bihar Pension Rules, has been pleased to inter alia, hold that the State Government's power under clauses (a) and (b) of Rule 139, as sanctioning authority, to reduce pension on the ground of grave misconduct, is subject to the provisions of Rule 43 (b). Hence, show-cause notice issued under Rule 43 (b) proviso (a) (ii) in respect of a misconduct committed prior to the time-limit under (four years prior to the date of issuance of the notice) was incompetent.
8. Learned counsel for the respondents, on the other hand, has assiduously submitted that on perusal of Annexure-12, it is evident that the charges framed against the petitioner was never dropped and the impugned order has been passed after verification of the entire records, therefore, there is absolutely no infirmity in the impugned decision as contained in the order dated 07.10.2013, which has been affirmed by the appellate authority vide order dated 07.02.2014 vide Annexure-18.
9. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons :- (i) Admittedly, the charge was prepared and sent to the parent department of the petitioner i.e. Personnel, Administrative Reforms and Rajbhasha Department, on 22.08.2007 (Annexure-3) and the petitioner retired from the post of the Section Officer, Home (Jail) Department on 31.03.2012. (ii) After retirement from service, the impugned decision has been taken, whereby 5 per cent pension of the petitioner has been withheld for two years vide order dated 07.10.2013, which has been affirmed by the appellate authority vide order dated 07.02.2014 (Annexure-18). (iii) In the instant case, after retirement, the petitioner was asked for explanation on the basis of preliminary enquiry report 7 dated 03.08.2007 (Annexure-2), which was substantiated for withholding of the pension. (iv) For better appreciation, it would be apposite to refer to proviso to sub-rule (b) of Rule 43 and Rule 139 (a) and (b) of the Bihar Pension Rules. Rule 43 (b) reads as under : - “(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 re-employment 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 the sanction of the State Government; (ii) shall be in respect of an evident 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;” Rule 139 (a) and (b) of the Pension Rules reads as under :-
“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.”
10. On a joint reading of Rule 43 (b) and Rule 139 of the Pension Rules, there is no escape from the conclusion that on the alleged misconduct, which was committed by the petitioner prior to 4 years from the date on 8 which, the show cause notice dated 03.05.2013 was issued, the Respondent-authority has no power to invoke Rule 139 (a) and (b) against the petitioner on the ground of proved misconduct. Consequently, it has to be held that the impugned decision dated 07.10.2013 (Annexure-16) is wholly incompetent. The aforesaid reasoning of mine, gets fortified by the decision of the Hon'ble apex Court reported in 1995 Supp (3) SCC56 State of Bihar & Others-versus-Mohd. Idris Ansari (supra).
11. In view of the reasons stated hereinabove and as logical sequitor to the factual as well as legal position, the impugned decision as contained in the order dated 07.10.2013 vide (Annexure-16) and the order of the appellate authority dated 07.02.2014 (Annexure-18) rejecting the appeal being legally unsustainable warrants interference by this Court. Accordingly, the same are quashed and set aside and the respondents are directed to disburse the withheld 5 per cent pension amount of the petitioner within a period of 12 weeks from the date of receipt/communication of the copy of the order.
12. With the aforesaid direction, the writ petition stands allowed. (Pramath Patnaik, J.) APK