Daya Shankar Pathak Vs. the State of Jharkhand and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/519326
SubjectService
CourtJharkhand High Court
Decided OnMay-01-2009
Case NumberW.P. (S) No. 2141 of 2007
Judge Ajit Kumar Sinha, J.
Reported in2009(57)BLJR2405
ActsBihar Pension Rules, 1950 - Rule 43
AppellantDaya Shankar Pathak
RespondentThe State of Jharkhand and ors.
Appellant Advocate Amit Kumar Tiwari, Adv.
Respondent AdvocateJ.C. to Sr. S.C. II
DispositionPetition allowed
Cases ReferredSmt Normi Topno v. The State of Jharkhand
Excerpt:
service-recovery-bihar pension rules, 1950, rule 43(b)-recovery sought to be made from pensionary benefit-as on date no disciplinary proceeding pending against petitioner-proceeding related to an event which took place much more than four years before retirement of petitioner-very basis for which a disciplinary proceeding was initiated to recover amount allegedly not adjusted dropped on legal advice-very basis for recovery no more survives- claim of recovery quashed-petition allowed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - the fact remains that the very basis for which a disciplinary proceeding was initiated to recover the amount allegedly not adjusted has been dropped on legal advise as well as based on the ground as stipulated in rule 43(b) then the question arises as to whether the same claim for which a disciplinary proceeding was initiated and has been dropped could still survive against the petitioner, more so, when he has retired in the year 2000 itself.ajit kumar sinha, j.1. in the instant writ petition the petitioner prays for the following reliefs:a. for the issuance of an appropriate writ, order or direction or writ in the nature of certiorari for quashing of the memo dated 8.11.04 by which a proceedings has been initiated under rule 43(b) of the bihar pension rules, 1950 for an event taken place in the year 1989-90 and 1997-98 although petitioner stands retired in the year 2000 and proceedings under rule 43(b) has been initiated on 8.11.04 which is barred by rule 43(b) proviso (ii) by which proceedings cannot be initiated for an event which has taken place 4 years back from the institution of the proceedings and thus to hold and declare the same as wholly illegal, arbitrary, void ab-initio and wholly without jurisdiction.b. commanding upon the respondents to immediately pay the amount of rs. 2,30,954.00 along with interest up to date which has been withheld on account of the pendency of the proceedings of rule 43(b) which has been showed as advance against the petitioner although the petitioner has been representing before the authority to adjust the amount since the work was completed almost 15 years back.c. to hold that the amount cannot be withheld under section 43(b) as the said proceedings is void ab-initio.d. for issuance of writ, order or direction in the nature of certiorari for quashing of recovery order dated 30.4.2008 issued vide memo no. 217 by which it has been admitted earlier proceedings issued under 43(b) of the bihar pension rule being not maintainable and thus the same has been quashed and set aside but in the same order, order of recovery of rs. 12,30,954/- has been quashed.e. during pendency of the writ application recovery order dated 30.4.2008 issued vide memo no. 217 be kept in abeyance/stayed.2. in the counter affidavit filed on behalf of respondent no. 2 & 3 at paragraph 7 and 8 it has been specifically held as under:7. that it is further stated and submitted that the road construction department, jharkhand, ranchi has already withdrawn the departmental proceeding initiated against the petitioner vide order no. 217 read under memo no. 2935(s) dated 30.4.2008.8. that it is further stated and submitted that the amount of rs. 2,30,964.50 pending against the petitioner as an outstanding balance despite his having retired on 31.12.2000 is a money of government exchequer. the petitioner was directed to get the amount adjusted during his service period vide executive engineer, works division, jamshedpur letter no. 577 dated 23.10.1992, 635 dated 03.12.1992, 107 dated 25.02.1993, 504 dated 20.09.1993, 609 dated 12.10.1993, 765 dated 05.12.1994, 345 dated 26.06.1995, 286 dated 12.06.1999 and 465 dated 06.08.1999. the petitioner was directed for the assistant engineer, r.e.o., nimdih vide his letter no. 54 dated 15.06.1995 and also by the superintending engineer, works circle, ranchi vide his letter no. 46 dated 17.02.1995 and 62 dated 07.09.1995. however, the petitioner, did not respond to the aforesaid directions.in the light of the facts and circumstances mentioned above the amount has to be recovered from the petitioner and accordingly decision in this regard has already been taken.3. further in the order by which the disciplinary proceeding was dropped a specific reason was assigned that such recovery was not in accordance with rule 43(b) of the bihar pension rule, 1950 which has also been annexed as annexure-c. the fact remains that the very basis for which a disciplinary proceeding was initiated to recover the amount allegedly not adjusted has been dropped on legal advise as well as based on the ground as stipulated in rule 43(b) then the question arises as to whether the same claim for which a disciplinary proceeding was initiated and has been dropped could still survive against the petitioner, more so, when he has retired in the year 2000 itself. as on date it can be safely held that there is no disciplinary proceeding pending against the petitioner and in that view of the matter the judgments as relied upon by the learned counsel for the petitioner reported in 2008 (1) jcr (5) jhar. (f.b.) state of jharkhand and ors. v. padmalochan kalindi and 2007 (4) jcr 9 jhar. f.b. dr. dudh nath pandey v. state of jharkhand and ors. will certainly apply in the present case.4. a full bench of this court in 2007 (4) jljr 459 laxman prasad gupta v. state of jharkhand specifically held at paragraph 20 as under:20. in view of the above discussion, we come to the following conclusion. to sum up: 'in the light of the absence of any material to show that the excess amount was received by the petitioner on mis-representation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under rule 43(b) of the bihar pension rules. in this case, the said procedure, which is mandatory, has not been followed. therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law. 5. again a full bench of this court reported in 2007 (4) jljr 466 smt normi topno v. the state of jharkhand at paragraph 30 held as under:30. if a departmental proceeding is not initiated by a competent authority while the government employee was in service; after retirement, it is only the state government which is empowered to initiate such proceeding under rule 43(b) subject to the limitation of four years from the date of occurrence.6. considering the aforesaid facts and circumstances of the case and also in view of the fact that as on date no disciplinary proceeding is pending and thus the very basis for recovery no more survives, rule 43(b) of the bihar pension rule, 1950, in the light of aforesaid judgments, cannot be invoked at this belated stage since it has to be invoked within a period of four years from the date of occurrence.7. considering the aforesaid facts and circumstances of the case and the settled law, the writ petition is allowed and the claim of recovery dated 30.04.2008 issued vide memo no. 217 is quashed.8. it goes without saying that if any amount has been withheld, the same should be released within a period of three months from the date of receipt of a copy of this order.
Judgment:

Ajit Kumar Sinha, J.

1. In the instant writ petition the petitioner prays for the following reliefs:

a. For the issuance of an appropriate writ, order or direction or writ in the nature of certiorari for quashing of the memo dated 8.11.04 by which a proceedings has been initiated under Rule 43(b) of the Bihar Pension Rules, 1950 for an event taken place in the year 1989-90 and 1997-98 although petitioner stands retired in the year 2000 and proceedings under Rule 43(b) has been initiated on 8.11.04 which is barred by Rule 43(b) proviso (ii) by which proceedings cannot be initiated for an event which has taken place 4 years back from the institution of the proceedings and thus to hold and declare the same as wholly illegal, arbitrary, void ab-initio and wholly without jurisdiction.

b. Commanding upon the respondents to immediately pay the amount of Rs. 2,30,954.00 along with interest up to date which has been withheld on account of the pendency of the proceedings of Rule 43(b) which has been showed as advance against the petitioner although the petitioner has been representing before the authority to adjust the amount since the work was completed almost 15 years back.

c. To hold that the amount cannot be withheld under Section 43(b) as the said proceedings is void ab-initio.

d. For issuance of writ, order or direction in the nature of certiorari for quashing of recovery order dated 30.4.2008 issued vide memo No. 217 by which it has been admitted earlier proceedings issued under 43(b) of the Bihar Pension Rule being not maintainable and thus the same has been quashed and set aside but in the same order, order of recovery of Rs. 12,30,954/- has been quashed.

e. During pendency of the writ application recovery order dated 30.4.2008 issued vide memo No. 217 be kept in abeyance/stayed.

2. In the counter affidavit filed on behalf of respondent No. 2 & 3 at paragraph 7 and 8 it has been specifically held as under:

7. That it is further stated and submitted that the Road Construction Department, Jharkhand, Ranchi has already withdrawn the departmental proceeding initiated against the petitioner vide order No. 217 read under memo No. 2935(s) dated 30.4.2008.

8. That it is further stated and submitted that the amount of Rs. 2,30,964.50 pending against the petitioner as an outstanding balance despite his having retired on 31.12.2000 is a money of government exchequer. The petitioner was directed to get the amount adjusted during his service period vide Executive Engineer, Works Division, Jamshedpur letter No. 577 dated 23.10.1992, 635 dated 03.12.1992, 107 dated 25.02.1993, 504 dated 20.09.1993, 609 dated 12.10.1993, 765 dated 05.12.1994, 345 dated 26.06.1995, 286 dated 12.06.1999 and 465 dated 06.08.1999. The petitioner was directed for the Assistant Engineer, R.E.O., Nimdih vide his letter No. 54 dated 15.06.1995 and also by the Superintending Engineer, Works Circle, Ranchi vide his letter No. 46 dated 17.02.1995 and 62 dated 07.09.1995. However, the petitioner, did not respond to the aforesaid directions.

In the light of the facts and circumstances mentioned above the amount has to be recovered from the petitioner and accordingly decision in this regard has already been taken.

3. Further in the order by which the disciplinary proceeding was dropped a specific reason was assigned that such recovery was not in accordance with Rule 43(b) of the Bihar Pension Rule, 1950 which has also been annexed as annexure-c. The fact remains that the very basis for which a disciplinary proceeding was initiated to recover the amount allegedly not adjusted has been dropped on legal advise as well as based on the ground as stipulated in Rule 43(b) then the question arises as to whether the same claim for which a disciplinary proceeding was initiated and has been dropped could still survive against the petitioner, more so, when he has retired in the year 2000 itself. As on date it can be safely held that there is no disciplinary proceeding pending against the petitioner and in that view of the matter the judgments as relied upon by the learned Counsel for the petitioner reported in 2008 (1) JCR (5) Jhar. (F.B.) State of Jharkhand and Ors. v. Padmalochan Kalindi and 2007 (4) JCR 9 Jhar. F.B. Dr. Dudh Nath Pandey v. State of Jharkhand and Ors. will certainly apply in the present case.

4. A Full Bench of this Court in 2007 (4) JLJR 459 Laxman Prasad Gupta v. State of Jharkhand specifically held at paragraph 20 as under:

20. In view of the above discussion, we come to the following conclusion. To sum up:

'In the light of the absence of any material to show that the excess amount was received by the petitioner on mis-representation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules. In this case, the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law.

5. Again a Full Bench of this Court reported in 2007 (4) JLJR 466 Smt Normi Topno v. The State of Jharkhand at paragraph 30 held as under:

30. If a departmental proceeding is not initiated by a competent authority while the Government employee was in service; after retirement, it is only the State Government which is empowered to initiate such proceeding under Rule 43(b) subject to the limitation of four years from the date of occurrence.

6. Considering the aforesaid facts and circumstances of the case and also in view of the fact that as on date no disciplinary proceeding is pending and thus the very basis for recovery no more survives, Rule 43(b) of the Bihar Pension Rule, 1950, in the light of aforesaid judgments, cannot be invoked at this belated stage since it has to be invoked within a period of four years from the date of occurrence.

7. Considering the aforesaid facts and circumstances of the case and the settled law, the Writ petition is allowed and the claim of recovery dated 30.04.2008 issued vide memo No. 217 is quashed.

8. It goes without saying that if any amount has been withheld, the same should be released within a period of three months from the date of receipt of a copy of this order.