Dr. Krishna Mohan Prasad Vs. State of Jharkhand and Anr - Court Judgment

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1353 of 2011 Dr. Krishna Mohan Prasad son of late Maheshwari Prasad, resident of Road No.1, Ashok Nagar, P.O. Ashok Nagar, P.S. Argora, District Ranchi .... ….. Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Department of Animal Husbandry and Fisheries, Government of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi .... …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : M/s. Saurabh Arun & Abhishek Kumar, Adv. For the Respondents : Mr. Rajesh Kumar Singh, J.C. to G.P.IV. ----------- th CAV on:29 October, 2015 Pronounced on 04/12/2015 Per Pramath Patnaik, J.:

1. In the accompanied writ application, the petitioner has inter alia prayed for quashing the order dated 26.11.2010 passed by the respondent no.2 wherein respondent no.2 has taken a decision that petitioner is not entitled for payment of gratuity.

2. Sans details, the facts as disclosed in the writ application, in a nutshell is that while the petitioner was working as Assistant Director (Planning) in the department of Animal Husbandry, Government of Jharkhand, Ranchi, a case was registered against the petitioner on 04.02.1996. Pursuant thereto the petitioner was suspended from his services on 08.02.1996 and was finally terminated from services on 11.03.1996. Being aggrieved by the order of termination dated 11.03.1996, the petitioner filed a writ application bearing C.W.J.C No.362 of 2000 before this Hon’ble Court for quashing the termination order which was dismissed on 14.11.2002 on the ground of jurisdiction. Thereafter, the petitioner moved before the Hon’ble Patna High Court for quashing of the order of termination dated 11.03.1996 vide C.W.J.C. No.6766 of 2003 which was allowed by the Hon’ble Patna High Court vide order dated 26.08.2003 and the Hon’ble Patna High Court has been pleased to observe that “in accordance with the submission of the parties, the order contained in Annexure-3 is hereby quashed. The State Government within a period of four months from the date of the submission/receipt of a copy of this order shall pass necessary orders into 2 the entitlement of the petitioner. The State would also be obliged to give proper opportunity of hearing to the petitioner into the said matter, because the petitioner in case of any adverse order, would be adversely affected in his monetary gains.” The petitioner got superannuated from services on 30.06.2001. No order was passed for payment of retiral benefit although no disciplinary proceeding had ever been initiated against the petitioner but the petitioner was convicted in connection with R.C. Case No.2(A)/98 on 20.03.1996. Due to non-payment of retiral benefit, the petitioner moved before this Hon’ble Court vide W.P.(S) No.6098 of 2007 for payment of retiral benefit admissible to the petitioner w.e.f. 30.06.2001 to 19.03.2006 and the said writ petition was disposed of on 28.05.2010 by this Hon’ble Court remitting the matter back to the concerned respondent authorities to take an appropriate decision in accordance with law regarding the payment of gratuity to the petitioner to which he was entitled, immediately after the date of his retirement. Such decision shall be taken in accordance with the principles of law as laid down in the case of Dudhnath Pandey within a period of two months from the date of this order. Pursuant to the direction passed by this Hon’ble Court on 28.05.2010, the respondent authority issued show cause to the petitioner on 24.09.2010 as to why gratuity payable to the petitioner be not withheld and the petitioner submitted his reply on 28.09.2010 but the respondent authorities has passed the impugned order on 26.11.2010 holding that the petitioner is not entitled for payment of gratuity in view of the fact that since the petitioner has been convicted in several judicial proceedings wherein future good conduct is an implied condition of every grant of pension and pension includes gratuity under Section 27 of Jharkhand Pension Rules. Being aggrieved by the impugned order dated 26.11.2010, left with no alternative and efficacious remedy, the petitioner has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance.

3. Per contra, respondents have filed counter affidavit repelling the contentions made in the writ application. In the counter affidavit, it has been inter alia stated that the petitioner was suspended vide order dated 08.02.1996 of the Animal Husbandry and Fisheries Department, Bihar, Patna due to the petitioner’s involvement in fodder scam. Thereafter, the petitioner was dismissed from services vide order dated 11.03.1996. If the 3 petitioner was not dismissed from service, he would have been retired on 30.06.2001. In the light of the order dated 26.08.2003 passed by the Hon’ble Patna High Court in C.W.J.C. No.6766 of 2003, Animal Husbandry and Fisheries Department, Bihar, Patna vide order dated 19.08.2004 decided the order regarding the petitioner’s dismissal to be quashed and the decision was accepted by Animal Husbandry and Fisheries Department, Jharkhand, Ranchi vide order dated 16.03.2006. Thus, the petitioner retired on 30.06.2001 during suspension period. As per the records available in the department, the petitioner has been made accused in 24 Fodder Scam cases. A major amount of the Government fund is involved in above mentioned cases and the petitioner has been convicted and awarded punishment in 16 cases. The petitioner has been convicted in R.C. Case No.2(A)/98-AHD-Pat and the following punishment was awarded to the petitioner on 20.03.2006 by the court of learned Special Judge-III (C.B.I.-A.H.D.), Ranchi:- (i) R.I. for six years. (ii) Fine of Rs.6,00,000/-. (iii) In default of payment of fine further R.I. for one year. Due to that conviction and punishment, the department vide order dated 31.12.2006 decided not to pay the amount of pension and gratuity permanently to the petitioner under Rule 43 of Jharkhand Pension Rules vide Annexure-A to the counter affidavit. Vide departmental letter dated 04.02.2010, it was decided that the petitioner will be entitled to get the 90% provisional pension for the period from 01.07.2001 to 19.03.2006. The authority slip has been issued by office of A.G., Jharkhand, Ranchi vide letter dated 24.02.2010. Again, the said office vide letter dated 09.04.2010 has fixed the petitioner’s pension. In compliance of the interim order dated 17.04.2010 passed by the Hon’ble Jharkhand High Court, Ranchi in W.P.(S) No.6098 of 2007, leave encashment of 106 days has already been sanctioned vide departmental letter dated 25.05.2010. It has further been submitted in the counter affidavit that the department vide order dated 25.05.2010 took a decision that the payment of gratuity would not be admissible to the petitioner because the decision taken vide departmental order dated 31.12.2006 has not been set aside by the competent Court of law. In pursuance to the order dated 28.05.2010 passed in W.P. (S) No.6098 of 2007, show cause notice was issued vide departmental letter dated 24.09.2010 to the petitioner to explain as to why the gratuity amount should 4 not be withheld. The reply was submitted by the petitioner on 28.09.2010. After perusal of the reply dated 28.09.2010 of show cause notice received from the petitioner and records available in the concerned filed, the department reached the following conclusions: (i) Show cause dated 28.09.2010 submitted by Dr. K.M. Prasad has been found unsatisfactory. (ii) The petitioner Dr. Krishna Mohan Prasad of W.P. (S) No.6098 of 2007 and the petitioner Dr. Dudhnath Pandey of L.P.A. No.714 of 2004 are of different nature, since Dr. Dudhnath Pandey, the then Key Village Officer, Lohardaga was an accused in Foddar Scam Case No.R.C.47(A)/96-Pat whereas petitioner has been convicted in several fodder scam cases and has been sentenced to RI with fine. (iii) The provision in Rule-43 of Jharkhand Pension Rules envisages that “Future good conduct of every grant of pension. The provincial government reserves 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 the provincial Government on any question of withholding of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.” Due to conviction and punishment/sentence in several judicial proceedings, the future good conduct is an implied condition of every grant of pension. According to Rule-27 of Jharkhand Pension Rules, “Pension includes gratuity.” Therefore, in the light of above mentioned facts, the Government of Jharkhand vide order dated 26.11.2010 decided that the petitioner is not entitled to get the payment of the amount of ‘gratuity’.

4. Heard Mr. Saurabh Arun, learned counsel appearing for the petitioner as well as Mr. Rajesh Kumar Singh (J.C. to G.P-IV) appearing for the respondents-UOI.

5. Learned counsel for the petitioner by referring to reply to the counter affidavit filed on behalf of the respondents has submitted that on perusal of the show cause issued against the petitioner is without jurisdiction as the Secretary of the department having no jurisdiction to issue the show cause in terms of Rule 43 of Pension Rule rather the very opening sentence of Rule 43 of Pension Rules speaks that it is the State Government who has the power for withholding the pension and admittedly the petitioner is Class-II5officer and his appointing authority is the Governor and it is well settled law that the appointing authority is the disciplinary authority and admittedly the appointing or disciplinary authority of the petitioner has not passed any order. Learned counsel further submits that the Secretary who issued the show cause as well as the impugned order is not the State within the meaning of Article 12 of the Constitution of India nor he is the State within the meaning of Rule 43 of Pension Rules. It is the Governor who is said to be the State. Learned counsel for the petitioner further submits that the approval has not been accorded by the Governor as the impugned order does not speak that the order has been issued in the name of Governor, hence the order impugned is illegal, void and without jurisdiction. Learned counsel further submits that the initiation of the proceeding under Rule 43 only by way of show cause and reply is also illegal and void as there cannot be summary proceeding as they have done in the instant case. There should be a full fledged inquiry in terms of Rule 43 but that has also not been done in the instant case and merely a show cause has been issued and after accepting the reply from the petitioner, impugned order has been passed, which is also bad in law. Learned counsel has further submitted that the impugned order is also bad in law because admittedly there is no departmental proceeding initiated ever against the petitioner and initiating a proceeding by way of summary proceeding in the year 2010 is against the proviso 2 of the Rule 43 of Pension Rule as the limitation of four years has already been lapsed as it should be in respect to an event which took place not more than four years before institution of such proceeding and hence the respondents are estopped in initiating proceeding even summary proceeding against the petitioner as they have done because four years has already been lapsed as event is of 1995 and petitioner retired in the year 2001 and after approximately 11 years initiating a proceeding against the proviso of the Rule 43 of Pension Rule, hence on this ground also impugned order is liable to be quashed. Learned counsel has further submitted that the impugned order is also bad and illegal in view of Rule 43 proviso (C) as nowhere in the impugned order it has been stated that the Jharkhand Public Service Commission has been consulted before final order passed which has not been done in the instant case, hence the impugned order is bad in law and liable to be quashed. Learned counsel further submits that the impugned order is bad in law in view of the fact that the Rule 43 speaks about the pension not gratuity and admittedly the gratuity 6 is governed by the Gratuity Act and gratuity act does not speak about the withholding of the gratuity. Moreover, gratuity cannot be denied as covered and governed by the Act and it cannot have overriding effect nor any scheme or Rule when the Central Act is applicable and admittedly for Gratuity Central Act is applicable as gratuity means the gratuity earned by employee for long services rendered by him. Learned counsel for the petitioner has referred to the circular dated 23.08.1963 and the order of Hon’ble Patna High Court reported in 1995 (1) PLJR399wherein it has been held that the circular of 1963 is valid and the impugned order in the said case was quashed on the ground of appeal is pending before the higher court considering that it is a continuation of trial. Learned counsel for the petitioner further submits that the case of the petitioner falls within the meaning of double jeopardy as one hand without any proceeding under Rule 43 B, the respondent has withheld 10% pension and simultaneously in terms of Rule 43, the highhandedness of the respondent authority is very much apparent from the fact that on the other hand respondents are withholding 10% pension of the petitioner and in the garb of Rule 43 is against the settled principles of law.

6. In order to buttress his submission, learned counsel for the petitioner has referred to the decision reported in 2002(2) JLJR316(Sukhdeo Ram vs. The State of Bihar & Ors.).

7. Learned counsel for the respondents has assiduously countered the submissions of the learned counsel for the petitioner that the petitioner was convicted in 24 Fodder Scam Cases and due to conviction and punishment the department vide order dated 31.12.2006 decided not to pay the amount of pension and gratuity permanently to the petitioner under Rule 43 of Jharkhand Pension Rules. So, there is absolutely no infirmity in the impugned order dated 26.11.2010 passed by the respondents wherein, it has been decided that the petitioner is not entitled to gratuity and since aforesaid order was already passed in the years 2006 basing on conviction and punishment after obtaining concurrence of the Public Service Commission, no illegality or irregularity can be found out in the impugned order dated 26.11.2010 and, therefore, the writ petition is devoid of any merit.

8. Having heard learned counsel for the parties at length and on perusal of the documents, I am of the considered view that the petitioner has not 7 been able to make out a case for interference due to the following facts stated hereinbelow: (I) That admittedly due to the involvement of the petitioner in Fodder Scam he was placed under suspension vide order dated 08.02.1996 of the Animal Husbandry and Fisheries Department, Bihar. During the pendency of the suspension the petitioner retired on attaining the age of suspension i.e. on 30.06.2001. The petitioner has been made accused in 24 Fodder Scam cases whereas a major amount of the Government fund is involved in the above mentioned cases and petitioner has been convicted and awarded punishment in 16 cases. In view of conviction and punishment, the department vide order dated 31.12.2006 decided not to pay the amount of pension and gratuity permanently to the petitioner under Rule 43 of Jharkhand Pension Rules and the said order has been passed after obtaining the concurrence of the Jharkhand Public Service Commission. The said order has not been challenged by the petitioner, therefore, the challenge of the order dated 26.11.2010 is not legally sustainable. (II) That as per the provision under Rule 43 of the Jharkhand Pension Rules, it envisages that “future good conduct is an implied condition of every grant of pension. The provincial Government reserves 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 the 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.” Due to conviction and punishment/sentence in several judicial proceedings, the future good conduct is an implied condition of every grant of pension. According to Rule 27 of Jharkhand Pension Rules, “Pension includes gratuity.” Therefore, in the light of above mentioned facts, the Government of Jharkhand vide order memo no.2414 dated 26.11.2010 decided that the petitioner retired Assistant Director (Planning) is not entitled to get the payment of the amount of “Gratuity” and absolutely no infirmity or illegality in the impugned order has been passed by the Government.

9. On cumulative effect of the facts and reasons and as a logical sequitur to the factual assertions made in the foregoing paragraphs, the impugned order of punishment dated 26.11.2010 does not call for any interference by this Court. 8 10. Accordingly, the writ petition is dismissed being devoid of merit. (Pramath Patnaik, J.) Saket/-