Proceedings initiated under Rule 43(b) of the Bihar Pension Rules cannot be converted under Rule 139(b): Jharkhand High Court
It is a settled legal proposition that if a proceeding has been initiated or not completed in course of service under Rule 43(b) of the Bihar Pension Rules, the same cannot be converted under Rule 139(b) of the Bihar Pension Rules, rather the same will be deemed to have been converted under Rule 43(b) of Bihar Pension Rules. The High of Court Jharkhand in the case of Jagannath Prasad Sah vs The State of Jharkhand [W.P. (S) No. 6876 of 2019] by Single Bench consisting of Hon’ble Shri Justice DR. S. N. Pathak. The facts of the case are that petitioner was initially appointed as Assistant Engineer on attaining the age of retirement, A departmental proceeding was initiated against him under Rule 43(B) of the Pension Rules, alleging therein that there was a violation of departmental rules in Tender invitation wherein it was disclosed that petitioner shall be imposed punishment of deduction of 5% of pension under Rule 139 of the Pension Rules. Following this petitioner has approached this court. The Learned counsel for the petitioner submits that from the Enquiry Report it clearly reveals that though the petitioner was exonerated from the charges the same has been given go bye and he has been given harsh punishment at his old age. The impugned orders of punishment and appellate orders are cryptic and liable to be quashed. The deviation from the enquiry report mandates specific show cause to that effect but the same was never served upon the petitioner in total violation of principles of natural justice. “Even prior to awarding punishment, the respondents had already disclosed their mind that they are going to inflict punishment and identical punishment was inflicted to him, which shows bias ness.” Learned counsel on the other side, argues that the petitioner was supposed to be a responsible government servant. During his service period, the Chief Engineer, Department of Water Resources, Government of Jharkhand issued a letter vide memo to the Engineer-in-Chief. Learned counsel further submits that though the enquiry was started but, in the meantime, the petitioner retired and as such appropriate action could not be taken. In view of irregularities committed by the petitioner, the action of the respondents is justified. There is no infirmity in the impugned order and as such instant writ petition is fit to be dismissed. Relying on the apex court judgment Shambhu Saran Vs. The State of Bihar was held that “in our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue.”
 W.P.No. 68719 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 68719 Jagannath Prasad Sah … … Petitioner V E R S U S 1. The State of Jharkhand 2. The Principal Secretary Water Resources Department Government of 3. The Deputy Secretary Water Resources Department Government of Jharkhand Ranchi Jharkhand Ranchi 4. The Under Secretary Water Resources Department Government of Jharkhand Doranda Ranchi 5. The Accountant GeneralJharkhand. CORAM: HON BLE MR. JUSTICE DR. S. N. PATHAK For the Petitioner For the Respondents: For the Accountant General: Mr. Prabhash Sinha Advocate Mr. Amit Kumar Sinha Advocate Mr. Shivam Singh AC to AAG III 06 22.03.2021 In view of outbreak of COVID 19 pandemic case has been taken up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length the matter is being disposed of finally. PRAYER Petitioner has approached this Court with a prayer for quashing of order issued vide Memo No. 1543 dated 19.02.2014 under the signature of the Under Secretary Department of Water Resources Government of Jharkhand by which decision has been taken by the respondents for deduction of 5% of pension of petitioner for the next fifteen years. Petitioner has further prayed for quashing of memo no. 47 dated 07.01.2019 issued under the signature of Under Secretary Department of Water Resources Government of Jharkhand by which appeal preferred by petitioner against the order issued vide memo no. 1543 dated 19.02.2014 has been dismissed. Petitioner has further prayed for a direction upon the respondents to pay full pension after quashment of impugned orders. 2 W.P.No. 68719 FACTUAL MATRIX The factual exposition as has been narrated in the writ petition is that petitioner was initially appointed as Assistant Engineer at Bhagalpur in the erstwhile State of Bihar on 26.01.1979 and on attaining age of retirement he superannuated from the service on 29.02.2008 from the post of Executive Engineer. After his retirement a departmental proceeding was initiated against him under Rule 43(B) of the Pension Rules vide Resolution No. 445 dated 05.02.2009 alleging therein that there was violation of departmental rules in Tender invitation tender disposal work allocation and back dating by the petitioner with regard to works of Tender Invitation Information No. 1 05 06. After enquiry the report was submitted by the enquiry officer on 10.07.2011 wherein none of the charges against the petitioner was found proved and noting was given to exonerate the petitioner from the charges. However thereafter petitioner was served with a letter no. 5748 dated 30.09.2013 issued by Under Secretary Department of Water Resources Government of Jharkhand wherein he has been informed that allegations levelled against him has been found true and Government is in consideration for imposing punishment of deduction of 5% of Pension under Rule 139 of Pension Rules and 15 days’ time was granted to the petitioner to file show cause. Petitioner denied the allegations and submitted his reply on 28.10.2013. Without any second show cause petitioner was served memo no. 5748 dated 30.09.2013 wherein it was disclosed that petitioner shall be imposed punishment of deduction of 5% of pension under Rule 139 of the Pension Rules. After departmental proceeding an order vide memo no. 1543 dated 19.02.2014 was issued wherein petitioner was informed that he has been inflicted with punishment of deduction of 5% from his pension under Rule 139 of Pension Rules. Accordingly the Accountant General Jharkhand was also intimated vide letter no. 2198 dated 11.03.2014 recommending deduction of 5% of Pension of the petitioner for the fifteen years from the date of his superannuation. Petitioner preferred an appeal but the same was also dismissed vide memo no. 47 dated 07.01.2016. 3 W.P.No. 68719 ARGUMENTS ON BEHALF OF THE PETITIONER Mr. Amit Kumar Sinha learned counsel appearing on behalf of the petitioner submits that from the Enquiry Report it clearly reveals that though petitioner was exonerated from the charges but the same has been given go bye and he has been given harsh punishment at his old age. The impugned orders of punishment and appellate orders are cryptic and liable to be quashed. The deviation from the enquiry report mandates specific show cause to that effect but the same was never served upon the petitioner in total violation of principles of natural justice. Even prior to awarding punishment the respondents had already disclosed their mind that they are going to inflict punishment and identical punishment was inflicted to him which shows biasness. Learned counsel further submits that during service period of the petitioner no departmental proceeding was ever initiated against him and surprisingly after his retirement impugned action has been taken against him which is totally against the settled principles. The impugned proposal of deduction from pension of the petitioner is totally in violation of principles of natural justice. Learned counsel further submits that letter proposing deduction from pension under Rule 139 of the Jharkhand Pension Rules is wholly unlawful improper unjust and without authority of law. Learned counsel further argues that it is settled principle of law that if no departmental proceeding was ever initiated against an employee in respect of irregularities there is no justification to issue impugned notice against a retired employee. In the instant case the alleged irregularities relates to the year 2005 06 whereas petitioner retired on 29.02.2008 and impugned proceeding was initiated vide resolution dated 05.02.2009 and impugned orders have been passed on 19.02.2014 and 07.01.2019 respectively which are fit to be quashed ARGUMENTS ON BEHALF OF THE RESPONDENTS Mr. Shivam Singh AC to learned AAG III argues that petitioner was supposed to be a responsible government servant. During his service period the Chief Engineer Department of Water Resources Government of Jharkhand issued a letter vide memo no. 1107 dated 13.05.2008 to the 4 W.P.No. 68719 Engineer in Chief Department of Water Resources Ranchi for framing charges against the petitioner for violation of departmental rules in tender invitation tender disposal work allocation and back dating by the petitioner with respect to works of tender invitation notice no. 1 05 06. In the meantime petitioner retired from the service and after his superannuation vide memo no. 445 dated 05.02.2009 the department passed a resolution to initiate departmental proceeding against him under Rule 43(B) of the Jharkhand Pension Rules. After due process and giving opportunity to the petitioner impugned orders have been passed which are fully justifiable. Learned counsel further submits that though the enquiry was started but in the meantime petitioner retired and as such appropriate action could not be taken. In view of irregularities committed by the petitioner action of the respondents is justified. There is no infirmity in the impugned order and as such instant writ petition is fit to be dismissed FINDINGS OF THE COURT I have heard counsel for the parties and gone through the records. To decide the issue involved in this case it is important to refer to the provisions as contained in Rule 43(b) Rule 139(a) andof the Bihar Pension Rules which are being quoted herein below: further reserve 43(b) The State Government 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 event which took place not more than four years before the institution of such proceedings and iii) shall be conducted by such authority and at 5 W.P.No. 68719 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 b) judicial proceedings if not instituted while the Government servant was on duty either before retirement or during reemployment shall have been instituted in accordance with sub clauseof clauseand c) Bihar Public Service Commission shall be consulted before final orders are passed.” 139 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. c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall however be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed.” It has been specifically provided under Rule 43(b) of the Bihar Pension Rules that a departmental proceeding if instituted in course of service of a Government employee that will be deemed to be a departmental proceeding even after retirement of the delinquent employee for the purpose of imposing punishment of withholding of part or full amount of pension subject to certain limitations as contained in proviso to Rule 43(b). Foremost requirement under Rule 43(b) of the Bihar Pension Rules is that there must be pecuniary loss caused to the Government and if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct. Under Rule 139(b) of the Bihar Pension Rules it has been provided that if the service of a delinquent employee is not found to be thoroughly satisfactory the sanctioning authority of pension has got power to make reduction in the amount of pension. Under Rule 139(c) of the Bihar Pension Rules the State Government has been vested with the 6 W.P.No. 68719 revisional power against the order passed by the sanctioning authority subject to limitation of 3 years from the date of the order of the sanctioning authority by providing a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension. Admittedly petitioner retired from the service on 29.02.2008 and during his service tenure no proceeding was ever initiated against him. It is settled legal proposition that if a proceeding has been initiated or not completed in course of service under Rule 43(b) of the Bihar Pension Rules the same cannot be converted under Rule 139(b) of the Bihar Pension Rules rather the same will be deemed to have been converted under Rule 43(b) of Bihar Pension Rules as has already been held in the case of Shambhu Saran Vs. The State of Bihar reported in 2000(1) PLJR 665 FB) wherein at Paragraph 8 it has been held as follows : In our opinion once such proceeding is started even if the person concerned retires from service such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue." As a sequel of the aforesaid guidelines judicial pronouncements and facts and circumstances this writ petition stands allowed. The impugned orders issued vide Memo No. 1543 dated 19.02.2014 issued under the signature of the Under Secretary Department of Water Resources Government of Jharkhand as also the memo no. 47 dated 07.01.2019 issued under the signature of Under Secretary Department of Water Resources Government of Jharkhand are hereby quashed. Respondents are directed to pay full pension as also arrears thereof to the petitioner. The writ petition stands allowed. 