D.N. Patel, J.
1. This petition has been preferred against the order passed by respondent No. 2 Principal Secretary, Department of Agriculture and Sugarcane Development, Jharkhand, Ranchi dated 21.11.2009(Annexure-3 to the memo of petition) whereby 10% of the pension and gratuity of the present petitioner has been withheld by the Government on the ground that vigilance inquiry is going on against the present petitioner.
2. Learned Counsel for the petitioner vehemently submitted that in fact inquiry is going on and nothing has been concluded or decided in criminal matter against the present petitioner by any competent Court. No charge-sheet has been issued to the petitioner. No inquiry has been conducted and no report has been given against the present petitioner for any misappropriation of the amount. It is further submitted by the learned Counsel for the petitioner that under Rule 43(b) of the Jharkhand Pension Rules,2000 unless the petitioner is found guilty in a departmental proceeding or in a judicial proceeding, his pension cannot be withheld by the respondent-authority. Learned Counsel for the petitioner has relied upon the decisions rendered by this Court reported in 2008 (1) JCR 5 (Jhr)(FB) as well as decision rendered by the Division Bench of the Hon'ble Patna High Court, reported in 1999 (3) PLJR 949 as well as decisions rendered by the Hon'ble Supreme Court reported in 1995 (2) PLJR (SC) 51 and decisions rendered by Hon'ble Supreme court reported in : (2007) 6 SCC 704 and further submitted that looking to the aforesaid decisions also there is no power vested in the Government to withhold 10 per cent of the pension and gratuity amount, merely because some inquiry is going on and so long as inquiry is concluded against the present petitioner, amount of pension and gratuity cannot be withheld by the respondents. Moreover, before passing the impugned order at Annexure-3 dated 21.11.2009 no notice was given to the petitioner nor any opportunity of being heard was given to the petitioner otherwise all these facts and correct proposition of law, would have been pointed out by the petitioner, to the authorities concerned. Thus, impugned order is also violative of the principles of natural justice. It is further submitted by the learned Counsel for the petitioner that petitioner retired on 28.02.2009 as Director, Agriculture, Ranchi, Jharkhand and he was given promotion by the detailed report given by the committee concerned which is Annexure-4 to the memo of the petition dated 09.01.2009 and in paragraph 7 of the said report it is has been stated that there is nothing against the present petitioner and therefore petitioner was given promotion in the month of January, 2009. Thus, vigilance clearance certificate was also given in the month of January, 2009 and thereafter petitioner reached at the age of superannuation on 28.02.2009 and the respondents have withheld 10 per cent of the pension and gratuity amount by the impugned non-speaking order dated 21.11.2009 and therefore the said order deserves to be quashed and set aside.
3. I have heard the learned Counsel for the respondents who has submitted that vigilance inquiry case is going on against the present petitioner which was instituted prior to his retirement and therefore 10 per cent of the pension amount as well as gratuity amount has been withheld by the respondents, in view of the provisions of rule 43(b) of the Jharkhand Pension Rules, 2000 and therefore the impugned order passed by the respondents at Annexure-3 dated 21.11.2009 is absolutely in consonance with the facts of law and therefore petition deserves to be dismissed.
4. Having heard the learned Counsel for the both sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by the respondent dated 21.11.2009 at Annexure-3 to the memo of the petition mainly for the following facts and reasons:
(i) It appears that the present petitioner reached at the age of superannuation on 28.02.2009 and he was retired as Director, Agriculture, Ranchi, Jharkhand. Looking to the Annexure-4 and specially paragraph 7 thereof, it appears that petitioner was given vigilance clearance on 09.01.2009 and thereafter he was promoted in the month of January, 2009, on the basis, that nothing is against the present petitioner.
(ii) No notice, no opportunity of hearing is given to petitioner prior to nonpayment of or withholding of 10% of pension and gratuity. Therefore, there is violation of principles of natural justice.
(iii) It appears that the petitioner has already been paid 90 per cent of the pension, gratuity and other retiral benefits. Petitioner has assured this Court that he will not run away from the State of Jharkhand and will appear as and when called upon by the respondent authority. Only for the reasons that the vigilance inquiry is still going on and which has not been concluded so far, 10 per cent of pension and gratuity amount has been withheld by the Government as per rule 43(b) of the Jharkhand Pension Rules. The rule 43 of the Jharkhand Pension Rules, 2000 reads as under:
43(a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.
(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 cause 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 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 event which to 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 made;
(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and
(c) the Bihar Public Service Commission, shall be consulted before final orders are passed.
Explanation- For the purposes of the rule-
(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the petitioner are issued to him or, if the Government servant has been placed under suspension form an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted:
(i) in the case criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal Court; and
(ii) in the case civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court.
(iv) In view of the aforesaid rule, it appears that State Government can withhold or withdraw a pension or any part of it, whether permanently or for specified period and Government can also recover from pension any pecuniary loss caused to the Government if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct. In the facts of the present case petitioner is never found guilty by any judicial proceedings or any departmental proceedings. This is an admitted fact even as per the respondents that nothing has been proved against the petitioner. On the basis of the bare allegation, no pension amount, gratuity can be withheld by the Government' Hundred possibilities, cannot be equated with one truth and bare allegations annot be equated with one evidence.
(v) It has been held, in case of State of Jharkhand and Ors. v. Padmalochan Kalindi and Anr. reported in : 2008 (1) J C R 5 (Jhr) (FB) by the Full Bench of this Court in paragraphs 32 & 33 as under:
32. In Smt. Girish Kumari Prasad, (supra), the Division Bench of this Court (Hon'ble P.K. Balasubramanyan, C.J. and Hon'ble Tapen Sen, J) has held that something that is not due was given either because of negligence, collusion or fraud, the Accountant General can rectify the mistake committed either by omission or by commission by someone in the department. There cannot be any estoppel to seek any recovery of unauthorised payment made to an undeserving person. The fact that someone had made an error in giving a time bound promotion to the writ petitioner when it was no due, could not clothe him with any special right. However, it has not been held that any such amount would be recovered form the pensionary benefit of the retired employee without following the procedure provided under Rule 43(b) of the Pension Rules or without following the procedure established by law for holding guilty or negligence, collusion or fraud or without holding any person responsible and liable for such mistake, negligence or fraud. The decision in the case of Smt. Girish Kumari Prasad, (supra), has absolutely no conflict with the decision of the Division Bench in State of Jharkhand and Ors. v. Baleshwar Singh and Anr. : 2006 (4) JCR (660) (Jhr) (Hon'ble S.J. Mukhopadhyaya and Permod Kohli, J.) or any other decision of this Court referred to above. In the instant case learned single Judge has decided the impugned order holding that no amount can be recovered from the pension except by an order passed under rule 43(b) of the Bihar Pension Rules, 1950 as in the instant case, neither the State Government nor the competent authority has initiated any proceeding under Rule 43(b) of the said Rules while the petitioner was in service and even after 16 years of his retirement and even the proceeding under rule 43(b) of the said rules is barred by limitation and the same cannot be initiated now. He further held that no recovery can be made from the pension of the petitioner including the provisional/final pension or from the gratuity. Learned single Judge has noticed that even recovery by way of suit and certificate proceeding is also time barred after lapse of 16 years from the retirement of the petitioner. The impugned order dated 2.9.1997 (Annexure-2) issued by the Accountant General as well as the letter dated 3.1.2005 (Annexure-3) issued by the Block Development Officer, Chandankeyari seeking recovery were quashed and the respondents were directed to refund the amount already recovered from the petitioners. The respondents were also directed to finalise the pension of the writ petitioner within the time prescribed and the to pay the admitted arrears with interest @ 5% with cost. The said order of the learned single Judge has been passed after taking into consideration the relevant provisions and the same is in consonance with the other decisions of the Apex Court as well as of this Court, as noticed above. We find no illegality or infirmity in the impugned order of the learned single Judge. There is, thus, no merit in this letters paten appeal which is accordingly dismissed with cost of Rs. 10,000/- to be paid by the appellants to the 1st respondent.
33. It has been informed that the petitioner's final pension has been fixed during the pendency of this appeal. The appellants are directed to pay the arrears of pension and gratuity to the petitioner along with interest as directed by the learned single Judge within a period of two months from the date of receipt/production of a copy of this order, if not already paid. The respondents shall also refund the amount of the pension which was withheld and sought to be adjusted against the alleged dues within the said period. If the arrears/amounts aforesaid are not paid to 1st respondent within the said period, he shall be entitled to get interest @ 10% per annum on the amount of arrears from the date of his retirement till final payment.
(vi) In view of this decision, Rule 43(b) of the Jharkhand Pension Rules cannot be made operative for withdrawal of the pension and gratuity unless pensioner is found guilty in a departmental proceeding or judicial proceeding.
(vii) It has been held by Hon'ble Patna High Court in Bajrang Deo Narain Sinha v. The State of Bihar and Ors. reported in 1999 (3) PLJR 949 and paragraphs 4 & 7 thereof read as under:
4. He relied upon a decision of the Supreme Court reported in AIR 1990 Supreme Court 1923 (D.V. Kapoor v. Union of India and Ors.) for the principle that unless the pensioner is found guilty of misconduct in a departmental or a judicial proceeding, any part of his pension cannot be withheld. In that case, the Supreme Court was considering Rule 9 of the Civil Services Pension Rules, 1972 which is in para materia with Rule 43(b) of the Bihar Pension Rules. This Court has also taken the same view in several decisions including the decision in CWJC No. 7315 of 1995 decided in 4.9.1996 and in State of Bihar and Ors. v. Idris Ansari 1995 AIR SCW 2886. Apart from decisions, the rule is quite clear, and it is only in the case of proved misconduct that a part or whole of pension can be withheld.
7. In this view of the matter, this appeal is allowed and the respondents are directed to pay to the appellant full pension payable to him in accordance with the Rules as well as gratuity and leave encashment dues within a period of three months from today. This is without prejudice to the right of the State to take any action in accordance with the rules. (Emphasis Supplied)
(viii) Jharkhand Pension Rules especially 43(b) and Rule 43 of Bihar Pension Rules, 1950 are para materia and, therefore, in view of the aforesaid decision also unless the pensioner is found guilty in any departmental or judicial proceeding, respondents have no authority to withhold the pension or gratuity.
(ix) It has been held by Hon'ble Supreme Court in the case of State of Bihar and Ors. v. Mohd. Idris Ansari, reported in 1995 (2) PLJR (S.C.) 51, in paragraphs 8 & 9 as under:
8. 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 is not found to be throughly 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 concerned Government servant 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:
I. 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 throughout satisfactory.
II. Even if the service record of the concerned officer is found to be throughly satisfactory by the sanctioning authority and if the State Government finds that it is not throughly satisfactory or that there is proof of grave misconduct against the concerned officer during his service tenure, the State Government can exercise revisional power to reduce the pension but the revision is also subject to the rider that it should be exercised within 3 years from the order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond the period.
9. So far as the second type of cases is concerned the proof of grave misconduct on the part of the concerned Government servant during his service tenure will have to be called 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 proceeding conducted against him even after his retirement, but such proceedings 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 four 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 27.9.1973 and not on the ground that service record of the pensioner was not throughly 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 upto 31.1.1993 when respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated agaisnt the respondent under Rule 43(B. In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rules 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 throughly satisfactory. So far as the 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 show cause notice dated 27.9.1993 was issued, the appellant authority had no power to invoke Rules 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 remanding the proceedings under Rules 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after 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 stubborn 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 the application fails and is dismissed. There is no order as to costs.
(x) In view of the aforesaid decisions also, respondents have no power of withholding or withdrawing of any part of pension unless the pensioner is found guilty in any departmental or judicial proceeding.
5. As a cumulative effect of the aforesaid facts and reasons, I hereby quash and set aside the order passed by the respondents dated 21.11.2009 at Annexure-3 to the memo of petition. It is needless to say that there are enough power of Government under the Rules, 2000 that if the petitioner is found guilty, then in accordance with law, money can be recovered.