The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 171 of 2020 --------- Bina Kumari, aged about 65 years w/o Prashant Kumar Sinha r/o Som Vihar Housing Colony, Bhramatoli, P.O.-Bariatu P.S. Bariatu Dist. Ranchi 1. 2. 3. 4. 5. ..… Petitioner Versus The Director, School Education and Literacy Development Department having its office at Project Bhawan Dhurwa, P.O. & P.S. Dhurwa, District Ranchi The State of Jharkhand through, The Director School Education and Literacy Development Department having its office Project Bhawan, Dhurwa, P.O and P.S- Dhurwa Dist- Ranchi The Secretary, School Education and Literacy Development Department having its office Project Bhawan Dhurwa, P.O and P.S- Dhurwa Dist- Ranchi State of Bihar through the Principal Secretary, Department of Human Resources Development( Now Education Department), Government of Bihar, Patna having its office at Patna, P.O, P.S and Dist- Patna. (Bihar) The Director (Secondary Education), Department of Human Resources Development Department (Now Education Department), Government of Bihar, Patna having its office at Patna, P.O., P.S. and Dist.-Patna (Bihar) …. ….. Respondents ---------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD ---------- For the Petitioner : Mr. Gaurav Abhishek, Advocate For the Resp No.1 to 3 : Ms. Divya, A.C. to S.C.III : For the Resp.No.4 & 5 None ---------- 1 C.A.V. on 18.09.2024 Pronounced on 07.12.2024 This writ petition has been filed on behalf of the petitioner praying for the following reliefs: a. For the issuance of an appropriate writ/writs, order/orders, direction/directions or writ in nature of certiorari for quashing of the order contained in memo no. 2307 dated 04.09.2019 (i.e. Annexure-6) in terms of which the punishment has been inflicted upon the petitioner in terms of Rule 43 (a), Rule 43 (b) and Rule 139 (c) of the Bihar Pension Rules whereby the entire retiral benefit of the petitioner has been withheld by the respondent authorities on the ground that certain irregularities in the appointment of petitioner, which has been brought in light of an CBI enquiry after the petitioner has completed more than three decade of her service. And/or b. For the issuance of an appropriate writ/writs, order/orders, direction/directions or writ in nature mandamus for releasing the entire retirement benefit of the petitioner. 2 2. Heard Mr. Gaurav Abhishek, learned counsel for the petitioner and Ms. Divya, learned A.C. to S.C. on behalf of the State. 3. It is submitted that the impugned order dated 04.09.2019 (i.e. Annexure-6) is illegal, arbitrary and not sustainable in the eye of law. It is submitted that copy of the C.B.I. report and other documents, such as the intimation regarding initiation of departmental proceeding, chargesheet, departmental enquiry report etc. have not been served upon the petitioner and the petitioner was intimated about the departmental proceeding vide show-cause notice dated 20.07.2019 by the Disciplinary Authority. It is submitted that the petitioner had retired on 31.10.2015 and she got the information about the Departmental Proceeding initiated against her through show-cause Notice dated 20.07.2019, i.e. after her retirement. It is submitted that no show-cause Notice has been given before forfeiting 100% Pension. It is submitted that the impugned order is absolutely arbitrary, unconstitutional and in colourable exercise of power and, hence, the same may be set aside. 4. On the other hand, learned counsel for the State has submitted that the impugned order is fit 3 and proper and no interference is required from this Court. It is submitted that the petitioner was appointed by the Inspectors of school-Cum-Deputy Director, Bihar, Patna vide Memo No. 570-73 dated 15th January, 1982 in Govt. Girls Middle School, Betia, Bihar on purely temporary basis with condition that she can be removed from service at any time, in the pay scale of Matric Trained i.e. Rs.240-396/- without following proper procedure and without having the power and jurisdiction for appointment of Assistant Teacher, during the Joint Bihar period in Lower Subordinate Education Service Cadre which is a State Cadre. It is submitted that vide Notification No. 445 dated 09.07.1991, the teachers working in the Lower Subordinate Service were promoted in Subordinate Education Service. It was mentioned in notification no. 445 dated 09.07.1991 that the benefits of pay on promotion from Lower Subordinate Education Service will be given for the period 20.07.1985 to 17.05.1990, only after due approval by the Financial Department. It is submitted that due to delay in payment, a writ petition CWJC No. 1690/1997 was filed by Sushma Kumari Gope and others before the Patna High Court. In the said case, the Director, Secondary Education, Bihar, Patna filed Counter 4 Affidavit mentioning/stating therein that on and after 1980, the Lady Teachers in Govt Girls Middle Schools have wrongly and illegally been appointed and irregularly given promotion, hence, it was decided by the Bihar State Govt to handover the matter for enquiry to the Cabinet Vigilance Department. The Hon’ble Patna High Court passed judgment/order to take final decision and make the payment of arrear to the petitioners within two months. It is submitted that the State Government recommended the matter to the Cabinet (Vigilance) Department for the investigation/enquiry about illegal/irregular appointment of 300 Assistant teachers and illegal/irregular promotion of 160 teachers of Lower Subordinate Education Service. It is submitted that a writ petition, being CWJC No. 9847/1998 was also filed by Brajesh Kumar and others and the Hon’ble Patna High Court had passed the order on 18.12.1998 (i.e. Annexure-A) referring/remanding the matter for C.B.I. enquiry and the C.B.I. has submitted its report to the Home Department, Bihar, Patna. It is submitted that prior to appointment no advertisement was issued for appointment of the petitioner by the Inspectress of school-Cum-Deputy Director, Bihar, Patna, nor any required process such as roaster clearance/reservation policy was considered. 5 Although, the Inspectress of Schools- Cum- Deputy Director had no power and jurisdiction for appointment of Lower Subordinate Education Service cadre teachers as it is the State Cadre Post but the petitioners have wrongly and illegally been appointed. It is submitted that in the light of the said judgment, the Government of Bihar handed over the matter to the C.B.I. for investigation. It is submitted that as per order passed by the Hon’ble Patna High Court entire matter was enquired by the C.B.I. and report was submitted to the Home Department, Government of Bihar. It is submitted that on receipt of CBI report, the Deputy Secretary, Home Department had recommended vide letter no. 3371 dated 12.04.2005 to the Secretary, Secondary Education Department, Bihar, Patna (i.e. Annexure-B) to take action against the accused person as per report of CBI Case No. Ρ.Ε.- 3171/01. It is submitted that after bifurcation of Bihar State, those 48 teachers came under the territorial jurisdiction of Jharkhand State which includes the petitioner also. It is submitted that the Director, Secondary Education, Bihar, Patna has transmitted the letter to the Director, Secondary Education, Jharkhand vide letter no. 29/2005/2688 dated 6 18.12.2007 (i.e. Annexure-C) to take action against the accused person as per the list of CBI Investigation Report enclosed with Letter No. 3371 dated 12.04.2005 of Home (Police) Department, Bihar. It is submitted that on receipt of report of C.B.I. the petitioner was placed under departmental proceeding vide Memo No. 4141 dated 07.09.2010, whereby and whereunder the Regional Deputy Director, South Chhotanagpur Division, Ranchi was made as Enquiry Officer and District Education Officer, Ranchi was made Presenting Officer. It is submitted that a charge sheet "Prapatra-Ka" was issued/framed against the petitioner vide memo no. 4142 dated 07.09.2010 in pursuant to memo no. 4141 dated 07.09.2010, whereby the Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi and District Education Officer, Ranchi were communicated about the charges levelled against her for departmental enquiry. It is submitted that the petitioner had submitted her reply before the Enquiry Officer, which was found unsatisfactory, hence second show cause notice was issued to the petitioner vide memo no. 1145 dated 03.05.2012 (i.e. Annexure-D), which clearly shows that proper information and show cause notices were already served to the petitioner during the period when she was working in Govt. Girls High School, 7 Bariyatu, Ranchi. Therefore, it can be said that show cause notices have been served to the petitioner in the year 2012. It is submitted that the petitioner submitted her reply against second cause notice on 07.08.2012, but after receipt of second show cause reply at the time of review the matter, it was found by department that the Enquiry Report of the Enquiry Officer is incomplete, so final decision could not be taken in time or before her retirement. Thereafter several reminders were given to the Enquiry Officer by answering respondent to submit the final enquiry report, but the Enquiry Officer did not submitted the final enquiry report, hence another order was issued by the Director, Secondary Education, Jharkhand vide Memo No. 1241 dated 03.05.2019, whereby Regional Deputy Director, South Chhotanagpur Division was directed to submit the fresh enquiry report within one month. It is submitted that in pursuance of said order dated 03.05.2019 of answering respondent Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi-Cum-Enquiry Officer submitted a fresh and complete enquiry report vide his letter no. 878 dated 01.07.2019 (i.e. Anneuxre-E). It is submitted that on receipt of a fresh departmental enquiry report, the second show-cause notice issued by Director, Secondary Education vide 8 letter no. 1951 dated 20.07.2019 and in pursuance of this letter the petitioner submitted the reply which was found unsatisfactory. It is submitted that in case of the petitioner, CBI has submitted his report in which it has been mentioned that "She was directly appointed by B.I. on regular basis on the recommendation of D.I. and Principal without following the proper procedure. For such appointments, no advertisement of the post was made in any local newspaper or agency of employment exchange as well as no roaster clearance was obtained and reservation rules were not followed. There are no proceedings of any select committee for her selection through interview/ test. It is submitted that the post of Assistant Teachers of Lower Subordinate Service Cadre of the Govt. Girls Middle School belongs to State cadre and the appointment was to be made on publication of Advertisement by the State Level authorities and appointments were to be made on recommendation by the Competent Committee after roaster clearance and following the reservation rules but without considering the teachers training qualification and due process of appointment the petitioner was wrongly and illegally appointed by the then Inspectress of school-cum-Deputy Director, Bihar, Patna. Therefore, the appointment of the petitioner is wrong and illegal. 9 It is submitted that since the appointment of the petitioner has been found wrong and illegal in the enquiry made by the C.B.I. and departmental proceeding, hence in view of the Rule 43 (a). Rule 43 (b), Rule-43 (c) and Rule 139 (c ) of the Jharkhand Pension Rule (Amended in the year- 2018), Pensionary benefits of the petitioner has been withheld. It is submitted that as per reports submitted by the C.B.I. petitioner, including 48 other candidates, were initially appointed in most irregular manner by committing various breach of Rules of Public employment/appointments and even violating Article 14 & 16 of the constitution of India, hence, she has been rightly dismissed/terminated from service on the charges which have been found to be proved. It is submitted that no appointment can be made by-passing the Constitutional requirements. Since, petitioner was wrongly and illegally appointed by-passing the constitutional requirement violating Article 14 & 16 of Constitution of India, so she was not entitled to be continued in service/or to get other claims as sought for. It is submitted that in view of the order passed by the Hon’ble High Court, C.B.I. had submitted its report with regard to petitioner and others on 12.04.2005 to the Home Department and the same was communicate to the Director, Secondary 10 Education, Jharkhand vide Letter No. 2668 dated 18.12.2007, whereby the appointment of the petitioner was reported as irregular. It is submitted that the petitioner has retired from service on 31.10.2015, whereas she was put under departmental proceeding on 07.09.2010. Therefore, the allegation. made by the petitioner that she has been put under departmental proceeding in the year 2019 is not correct. It is submitted that in view of the conclusion of departmental proceeding and Rule 43 (a), 43 (b) and 43 (c), it was decided to withhold full pension/gratuity of the petitioner with due approval of the State Govt. and thereafter the memo no. 2307 dated 04.09.2019 has been issued. It is submitted that as per the report submitted by C.B.I. and on the basis of the enquiry report, appointment of the petitioner is ‘ab initio void’, hence the Memo No. 2307 dated 04.09.2019 has been rightly issued with due approval of the State Government. 5. Perused the record and considered the submission on both sides. 6. It transpires that the petitioner was appointed on the post of Assistant Teacher in the Matric trained scale of 240-6-300 vide office order no. 570-73 dated 15.01.1982 (i.e. Annexure-1). 11 7. It transpires that pursuant thereto the petitioner joined at Rajkiya Kannya Madhya Vidyalaya, Betiya (Bihar) on 18.01.1982 as an Assistant Teacher and later on vide Office Order No. 74 dated 16.01.1985 she was transferred to Rajkiya Balika Uchya Viddyala +12 Bariatu, Ranchi and after completing her service tenure the petitioner superannuated on 31.10.2015. 8. It transpires that after three decades of her appointment and around three years of her superannuation a show-cause dated 01.06.2019 (i.e. Annexure-2) was issued to the petitioner in view of alleged irregularities pointed out by the C.B.I. in a report relating to appointment of Assistant Teachers in the erstwhile State of Bihar. 9. It transpires that the petitioner filed reply to the Show-cause before the District Education Officer on 03.06.2019 (i.e. Anneuxre-3) stating therein that her appointment has been made after following the due process of law. 10. It transpires that the respondents, not being satisfied with the reply of the petitioner, issued Prapatra “KA” wherein the respondents have framed altogether four charges against the petitioner, which are as follows: (i) The appointment of the petitioner as Assistant Teacher was made without following the due process of law. 12 (ii) The appointment of the petitioner was made without advertisement without following the appointment roaster and also the recommendation of the Establishment Committee. (iii) The C.B.I. in its enquiry has found the appointment of the petitioner to be irregular (iv) The petitioner being an irregular appointee has been drawing public money since her appointment. 11. It transpires that thereafter the petitioner was issued a second show cause Notice vide Office Order dated 20.07.2019 (i.e. Annexure-4), which was received by the petitioner on 22.07.2019 with regard to the alleged irregularities pointed out by the C.B.I. in a report relating to appointment of Assistant Teachers in the erstwhile State of Bihar and the petitioner was directed to file a reply to the same by 24.07.2019. 12. It transpires that the petitioner, vide letter dated 26.07.2019 (i.e. Annexure-5) filed detailed reply to the Second Show-cause Notice stating therein that the appointment of the petitioner was made after following the due process of law and that the petitioner has not committed any illegality in obtaining her appointment as an Assistant Teacher. 13 13. It further transpires that without considering the reply filed by the petitioner, she was terminated from services vide Order dated 04.09.2019 (i.e. Annexure-6) on the ground that the petitioner was appointed initially on the post of Assistant Teacher without following the due process of law and also on the ground that the C.B.I. in its enquiry has found that the appointment of the petitioner was an irregular one. 14. It is evident that the impugned order is not sustainable in law as the petitioner has not been given reasonable opportunity of hearing to defend her case properly. The impugned order is further illegal in view of the facts that the question of her appointment has been raised after more than 20 years for the reasons that she did not possess the requisite qualification and proper procedure was not followed by advertising the posts etc. and her appointing authorities has been questioned although the law is well settled that appointment continuing for more than 20 years should not be questioned as per the judicial pronouncement of the Hon’ble Supreme Court. It further reveals that the respondents failed to consider that appointment of the petitioner and several other Teachers similarly situated with the petitioner were made on the recommendation of the authorities of the State Government. The petitioner was not the solitary candidate, rather several persons similarly situated were appointed. 15. It transpires that the petitioner has been dismissed from her services on the basis of the C.B.I. report, without taking into consideration the fact that the petitioner has been working for more than two decades without any complaint. 14 16. It transpires that a notice period of three days was given, which would neither satisfy a notice period nor would give reasonable opportunity to defend nor an order passed thereon would be held to be an order passed after following due process of law and termination of the petitioner from her service cannot take place simply on the basis of a C.B.I. report without following due process of law. 17. It further transpires that the respondents did not take into consideration that the appointment of the petitioner was made on the recommendation of the authorities long back ago without hindrance. 18. It further transpires that the appointment of the petitioner, which was made back in the year 1982, cannot be questioned after her retirement for the reason that a departmental proceeding under Rule 43(b) against a delinquent can only be taken in respect of an event which took place not more than four years before the institution of a proceeding and in the present case the appointment of the petitioner has been questioned after a lapser of 30 years which is not permissible under Rule 43(b) of the Jharkhand Pension Rules. 19. A Departmental Proceeding under Rule 43 (b) can only be initiated against a retired employee after getting the sanction from the government, which in the present case has not been taken in respect of an event which took place not more than four years before the institution of a proceeding. In the present case the appointment (process) of the petitioner has been questioned after a lapse of 30 years which is not permissible under Rule 43(b) of the Jharkhand Pension Rules. 15 20. It further transpires that the impugned order is in the teeth of and absolutely without jurisdiction in terms of Rule 43(B) of the Jharkhand Pension Rules, which provides the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period if the petitioner 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 and therefore, in view of the fact that in the present case the petitioner have never been found guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service and therefore, the impugned order passed under the provisions
Legal Reasoning
enshrined in Rules 43 (a) and 43 (b) cannot be sustained in the eye of law. 21. Thus, it is evident that in the case of the petitioner, the proceeding under Rule 43(b) of Jharkhand Pension Rules was neither instituted with the sanction of the State Government nor any Notice was issued to the petitioner for initiation of proceeding under Rule 43(b) of Jharkhand Pension Rules. 22. For the sake of convenience, Rule 43 (a) and 43 (b) of the Jharkhand Pension Rules is quoted as follows: “Rule 43 (a):- Future good conduct is an implied condition of every grant of pension. The Provincial 16 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 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. Rule 43 (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 the Government if the petitioner 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; 17 (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 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 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 from an earlier date, on such date; and (b) Judicial proceedings shall be deemed to have been instituted:- (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and in the case of civil proceedings, on the date on which the 18 complaint is presented, or as the case may be, an application is made to civil court.” 23. Rule 43 (c) of the Jharkhand Pension (Amendment) Rules, 2018 notified vide notification dated 23.07.2018 reads as follows: >kj[k.M isa’ku fu;ekoyh&2000 ds fu;e&43 ds vUrxZr fuEufyf[kr dks mi&fu;e …x‰ ds :i esa var%LFkkfir fd;k tkrk gS%& ^^…x‰ foHkkxh; vFkok U;kf;d dk;Zokgh] tks fdlh ljdkjh lsod vFkok tks vfuok;Z lsokfuo‘f(cid:217)k dh mez izkIr dj pqds lsokfuo‘r ljdkjh lsod ij ’kq: gS vFkok pykbZ tk jgh gks] mlds lsokfuo‘f(cid:217)k frfFk ls foHkkxh;@U;kf;d dk;Zokgh ds vkyksd esa vkns’k fuxZr gksus dh frfFk rd] vkSicaf/kd isa’ku dk Hkqxrku fd;k tk,xk] tks lsokfuo`fÙk ds le; vuqekU; vf/kdre isa’ku vFkok ;fn ljdkjh lsod lsokfuo‘f(cid:217)k ds le; fuyacu ij gks rks fuyacu ds iwoZ vuqekU; vf/kdre isa’ku ls vf/kd ugha gksA foHkkxh;@U;kf;d dk;Zokgh ds vkyksd esa vafre vkns’k fuxZr gksus rd minku ;k e‘R;q lg lsokfuo‘f(cid:217)k minku dk Hkqxrku ugha fd;k tk,xkA** 24. It further transpires that withholding /revising the pension of the petitioner by the impugned order is barred by limitation as the pension of the petitioner was sanctioned but the same has been revised / withheld on 04.09.2019, without giving her any Notice to show cause before withholding it, which is in contravention of the provisions of Rule 139 (c) of the Jharkhand Pension Rules. 25. As per Rule 139 (c), though The State Government reserve to themselves the power of revising an order relating to pension passed by subordinate authorities under their control, but no 19 such power shall 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. 26. For the sake of brevity, Rule 139 of the Jharkhand Pension Rules is quoted as follows: “139 (a) The full pension admissible under the rules is not to be given as a matter of course, of 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 power 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 20 of three years from the date of the order sanctioning the pension was first passed.” 27. Further, it transpires that even while passing the impugned Order dated 04.09.2019, no formal order was drawn for converting the Departmental Proceeding into a proceeding under Section 43 (b) of the Jharkhand Pension Rules and as the petitioner has already superannuated on 31.10.2015 and now naturally there is no relationship of Employer and Employee between the Department and the petitioner and hence, it was incumbent upon the Respondent Authorities to convert the Departmental proceedings under Section 43 (b) of the Jharkhand Pension Rules before passing the order of punishment by issuing a formal order and in absence of which the entire proceeding stands vitiated. 28. It has been held in the case of State Bank of India & Ors. Versus Navin Kumar Sinha reported in (2024) SCC OnLine SC 3369 at Para 31 and 32 as follows:- “Para 31:- As has been held by this Court on more than one occasion, a subsisting disciplinary proceeding i.e. one initiated before superannuation of the delinquent officer may be continued post superannuation by creating a legal fiction of continuance of service of the delinquent officer for the purpose of conclusion of the disciplinary proceeding (I this case as per Rule 19(3) of the Service Rules). But no disciplinary proceeding can be initiated after the 21 delinquent employee or officer retires from service on attaining the age of superannuation or after the extended period of service. Para 32:- Even in the case of C.B. Dhall (supra) relied upon by the appellants, this Court while considering the purport of Rule 20B of the State Bank of India (Supervising Staff) Service Rules, 1975 held that under Rule 20B disciplinary proceeding, if initiated against an employee before he retires from service, could be continued and concluded even after his retirement and for the purpose of conclusion of the disciplinary proceeding, the employee is deemed to have continued in service but for no other purpose.” 29. It has been held in the case of Jagdish Prasad Singh versus State of Bihar and Others reported in (2024) SCC OnLine SC 1909, at Para- 20,23,24,25 and 26 as follows:- “Para-20:- Without prejudice to the above findings, we are of the view that no departmental action could have been initiated by the State against the appellant after eight years following his superannuation because the employer employee relationship had come to an end after the appellant’s superannuation. The order directing reduction in pay scale and recovery from the appellant was manifestly not preceded by any show cause notice and was thus, passed in gross violation of the principles of natural justice. Pursuant to the order dated 20th July, 2009 passed
Decision
in the Writ Petition No. 6714 of 2009 filed by the appellant, he submitted a representation to the Secretary, Food and Consumer Protection Department, Government of Bihar, 22 which vide order dated 8th October, 2009 was rejected, preceded by a personal hearing. A perusal of the said order would indicate that the Secretary took a view that as per paragraph 11 (supra) of the Government Resolution, the first/second time bound promotion of the appellant had come to an end automatically w.e.f. on 1st January, 1996 and thus, the appellant was required to be redesignated to the post of Marketing Officer and would be entitled to the revised pay of Rs. 5500-9000 w.e.f. 1st January, 1996 as recommended by the Fitment Committee. Thus, even in this order, the promotion conferred to the appellant to the post of ADSO on 10th March, 1991 is not doubted. Para-23:- In the case of State of Punjab v. Rafiq Masih (White Washer)3, this Court held as under : - “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. 23 (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v.) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” (emphasis supplied) Para-24:- Recently, this Court in Thomas Daniel v. State of Kerala4, held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years. Para-25:- The Government Resolution dated 8th February, 1999 to be specific, the highlighted portion supra is amenable to the interpretation that it protects the status and pay of those employees who had received their time bound promotions prior to 31st December, 1995. As a consequence, the Secretary concerned, while rejecting the representation clearly misinterpreted and misapplied the said Resolution to the detriment of the appellant. Para-26:- The learned Single Judge as well as the Division Bench of the High Court of Patna also seem to have fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery 24 from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularly, because he had been promoted as an ADSO, while drawing the pay scale of Rs. 6500-10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of the excess amount is grossly arbitrary and illegal and also suffers from the vice of non- adherence to the principles of natural justice and hence, the same cannot be sustained. 30. Learned counsel for the petitioner has submitted that the petitioner has not been served the C.B.I. enquiry report, departmental enquiry report and the documents, which are the basis of the C.B.I. enquiry report and departmental enquiry report with respect to the allegations made and although the learned counsel for the respondents contended that the C.B.I. report etc. have been served upon the petitioner, but this contention cannot be believed as the respondents have to prove the actual service of enquiry report and C.B.I. report and the related documents upon the petitioner and in absence of proof of service of C.B.I. report and Enquiry report by the State it can be presumed that C.B.I. report has not been served upon the petitioner by the respondents 25 and therefore, it is evident that the impugned order dated 04.09.2019 has been passed in violation of the well settled law laid down in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 that the decision in a Departmental Proceeding is not good without supplying the delinquent the material which are the basis for such decision. 31. It has been held by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727, at Para 61, 62 and 63 as follows: “Para 61:- It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the 26 disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both. Para 62:- Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee’s recommendations and it is not a is used by the disciplinary material unless authority. Therefore, the need for its supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had opportunity at the inquiry. In support thereof he placed Koshy George v. University of Kerala [(1969) 1 SCR 317 : AIR 1969 SC 198] ; Shadi Lal Gupta v. State of Punjab [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] ; Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi [(1973) 1 SCC 805 : AIR 1973 SC 1260] ; Satyavir Singh v. Union of India [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ; Secretary, Central Board of Excise & Customs v. K.S. Mahalingam [(1986) 3 SCC 35 : 1986 SCC India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges (L&S) 374] and Union of on Suresh reliance strong it 27 It two. The is only an and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] renders no assistance. inquiry against malpractice at an examination conducted by the University under executive instruction. Therein the students were given an opportunity of hearing and they were supplied with all the material, the foundation for the report. The observations of the Bench of two Judges with regard to the theory of two stages in the Inquiry under Article 311 also bears little importance for the foregoing consideration in this case. It is already seen that this Court held that the inquiry from the stage of charge-sheet till the stage of punishment is a continuous one and cannot be split into in Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380 : (1973) 3 SCR 22] is also of no avail. Therein it was pointed out that under Section 18-A of the I.D.R. Act there was no scope of enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken. In Shadi Lal case [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules did not provide for the supply of copy of the report of an inquiry conducted by the fact finding authority before inquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a strait-jacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation of the principles reliance 28 the relating of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance on S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] in Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio renders no assistance in the light of the above discussion. Since Mahalingam case [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] which was after the Forty- second Amendment Act, the need to supply second show-cause notice was dispensed with, regarding punishment and therefore, that ratio renders no assistance to the case. Hira Nath Misra case [(1973) 1 SCC 805 : AIR 1973 SC 1260] also is of no avail since to inquiry was conducted misbehaviour with the girl students by the erring boys. The security of the girls was of paramount consideration and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardise their safety and so was withheld. Accordingly this Court on the fact situation upheld the action of the Medical College. Satyavir Singh [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ratio also is of no assistance as the action was taken under proviso to Article 311(2) and into Rule 199 of the CCA Rules. The insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [(1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311(2) and inquiry 29 unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice. Para 63: The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which Forty- second Amendment Act had advisedly avoided. So while interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the Forty- second Amendment Act the delinquent had no right of hearing before disciplinary authority either on proof of charge or penalty. So after Forty-second Amendment Act it would not be put on higher pedestal. The Gujarat High Court’s decision is, therefore, not good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority the penalties impose either of enumerated in the relevant provisions. It is not necessarily the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the to 30 charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him.” 32. It further transpires that apart from the fact that the petitioner was not provided the documents, such as C.B.I. report and the documents which are the basis of the departmental enquiry, it is evident from perusal of the departmental enquiry report itself that the competent authority with respect to the appointment was never examined in the so-called departmental proceeding and the impugned order has been passed mainly on the basis of the C.B.I. report, which is in contravention of the law settled in the case of Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570 and State of Jharkhand and Ors. Versus Amar Kumar Sinha (vide order dated 13.03.2023 passed in L.P.A. No. 212 of 2021 by the Hon’ble Division Bench of this Court). 33. It has been held in the case of Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 570, at Para No. 14 and 15 as follows:- “Para 14:- Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The 31 enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. Para 15:- We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.” 34. It has been held in the case of State of Jharkhand and Ors. Versus Amar Kumar Sinha passed in L.P.A. No. 212 of 2021 vide order dated 13.03.2023 passed by the Hon’ble Division Bench of this Court, at para- 8 and 9 as follows:- 32 “Para-8:- In the case of Roop Singh Negi Vs Punjab National Bank and another, (2009) 2 SCC 570, the Hon’ble Supreme Court has also examined a similar question and held that indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the documents. Reliance, inter alia, was placed by the enquiry officer on the F.I.R. which could not have been treated as evidence. Para-9:- In the aforesaid reported judgment, the Hon’ble Supreme Court also intervened in the matter. In the present case, it is seen that no witness was examined, only certain documents purported to be a report, prepared by the Chief Engineer, CDO, was produced before the enquiry officer, he accepted the same and passed the final order. The enquiry made by an officer of the department, prior to the initiation of a departmental enquiry is in the nature of a preliminary enquiry. In such cases, a copy of the preliminary enquiry should be handed over to the petitioner and the evidence that led to preparation of the preliminary enquiry and the conclusion arrived thereon, has to be 33 produced before the enquiring officer, who should apply his mind and come to the conclusion, whether such conclusion of the preliminary enquiry report is correct or not. While doing so, he should also afford a reasonable opportunity of cross-examining the witnesses, produced before the enquiring officer to prove the charges and also allow him to pass rebuttal evidence. In this case, nothing has been done, thus, there has been a clear violation of the principles of natural justice.” 35. The above judgment reported in Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570 has been followed by the Hon’ble Supreme Court in the case of United Bank of India Versus Biswanath Bhattacharjee reported in (2022) 13 SCC 329 and also in Delhi Transport Corporation Versus Ashok Kumar Sharma reported in (2024) SCC OnLine SC 1871. 36. It has been held in Delhi Transport orporation Versus Ashok Kumar Sharma reported in (2024) SCC OnLine SC 1871 at Paragraph No. 20 as follows:- “Para 20:- This Court in the case of Roop Singh Negi Versus Punjab National Bank categorically held that even in a case of ex parte enquiry, it is essential that the department must lead evidence of witnesses to bring home the charges levelled against the delinquent employee.” 34 37. From record it appears that the petitioner was appointed long back, i.e. on 15.01.1982 and the departmental proceeding was initiated against him on 01.06.2019 as per the petitioner, though as per respondents it was initiated firstly, on 07.09.2010 and even if this claim of respondents is accepted, the departmental proceeding was initiated after a lapse of almost 28 years, which is contravention of the law laid down by the Hon’ble Supreme Court in Buddhi Nath Chaudhary v. Abahi Kumar, reported in (2001) 3 SCC 328, whereby, the Hon’ble Supreme Court has held that the appointments made long back pursuant to a selection need not be disturbed. 38. Even the Patna High Court has decided in Kamini Kumari versus The State of Bihar and Others, vide order dated 27.02.2024, passed in LPA 1219 of 2023 and others the cases of those persons, who are similarly situated with the writ petitioners and who were also appointed by the District Inspectress of School some time in the year 1988-89 and who had also faced enquiry in the light of the Order dated 18.12.1998 passed in C.W.J.C. No. 9847 of 1998 (Brajesh Kumar Singh Versus State of Bihar and Ors.) 39. It has been held in the case of Kamini Kumari versus The State of Bihar and Others passed in LPA 1219 of 2023 and others, which was allowed on 27.02.2024, at Para-16, 17, 19, 20, 21, 23, 30, 31, 40, 41, 42, 43, 44, 45 and 46 as follows:- “Para-16:- One of the main grounds raised against the aforesaid proceedings, is violation of Rule 43 (b) of Bihar 35 Pension Rules, 1950. Rule 43(b) reserves the right of the State Government to withhold or withdraw the pension or any part of it, whether permanently or for a specified period along with right of ordering the recovery from a pension, of any pecuniary loss caused to the Government. When the pensioner is found to be guilty of grave misconduct or caused pecuniary loss to the Government by misconduct or negligence, the proviso to the rule kicks in. The proviso prescribes that if proceedings are not instituted when the government servant is on duty, then it shall not be instituted without the sanction of the State Government. It is also provided that such inquiry shall only be in respect of an event which took place not more than four years before the institution of such proceedings. Both these mandatory requirements, one of sanction, and the other, of an absolution for any incident prior to four years prior to retirement, are not complied with, is the compelling argument. illegal. The allegation Para-17:- Admittedly, there is no sanction issued by the State Government and the illegal appointments alleged are far prior to the retirement; more than three decades before retirement, which recruitment and appointment are the termed individual teachers, is of the appointment itself being vitiated for illegality. In this context, we have to notice that earlier there was a proceeding initiated before retirement which culminated, in this Court interfering with the penalty imposed at least in the case of certain teachers against whom the CBI adversely reported. raised against Para-19:- The appointment by Annexure-5 was confirmed by the Inspectoress of Schools-cum-Deputy Director of Education, Bihar as per Annexure-6 dated 20.10.1981. The extracts of the service book of the petitioner produced as Annexure-7, Annexure-8 and Annexure-9 evidences her promotion to the Subordinate Education Services as Lecturer with effect from 17.05.1990, her pay fixation thereat and her further promotion to the Bihar Education Services on 11.04.2013. Annexure-10 and 11 are again the orders granting her the first financial progression in service and her pay fixation. 36 Para-20:- Annexure-12 indicates her retirement on 31.01.2016, later to which, Annexure-13 show-cause notice dated 29.05.2019 was issued. In the show-cause, a memo of charges dated 13.10.2016 and a reminder to show-cause notice dated 17.01.2017 were referred to; which the petitioner/appellant submits was never issued to her. Immediately, we also have to notice that the memo of charges, in any event, was after the retirement, almost 10 months after superannuation. Even after the issuance of notice under Annexure-13, the Department kept mum till Annexure-17 reminder was issued on 26.02.2021, wherein the memo of charges (Annexure-18) and the CBI report (Annexure-19) based on which the accusation was raised, was issued to the petitioner. Annexure-21, is the final order withholding 100% of the pension under Rule 139 (c) of the Bihar Pension Rules. Para-21:- It is on the above facts that the grounds raised of violation of Rule 43(b) has to be considered. We have already noticed rule 43(b) which goes to the root of initiation of proceedings since the grounds raised are that, no sanction was obtained from the Government and further that the incident on which the allegation is raised occurred at the initial appointment of the petitioner, that is more than 3 ‰ decades back. Para-23:- In understanding the rigor of Rule 43(b) & 139(c) we need only refer to the decision of the Hon’ble Supreme Court in State of Bihar v. Md. Idris Ansari 1995 Supp 3 SCC 6. Paragraph 7 of the said judgment is extracted herein below:- it must be shown Para-7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government in departmental servant, proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been that 37 initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it is alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years’ old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27-9-1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17-10-1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition No. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17-10- 1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17-10- 1987 but initiated fresh departmental inquiry by the impugned notice dated 27-9-1993. Consequently, it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17-10-1987. The above extract clearly interprets the provision under Rule 43(a) and (b) succinctly. In the present case, there is clear violation of Rule 43(b); in that no sanction is produced on the part of the Government for the inquiry initiated after retirement. The incident based on which the allegation is raised also relates back to the year 1980, when even the memo of charges, deemed as the first initiation of proceedings was dated 13.10.2016. In this context, we also have to reiterate that the CBI inquiry was ordered in 1998, the report was before the Government in 2004, and proceedings were taken far later to that. Again, the action was based on a direction issued by this Court in a public interest litigation, which specifically directed that any proceedings taken would be in accordance with law. It was made clear that no termination of teachers shall take place pursuant to the notice of the CBI inquiry and without following due process of law, hence there cannot be a digression from 38 the procedure stipulated under the Bihar Pension Rules to proceed against the retired employees of the Government. Para-30:- Initiation of proceedings occurred by memo of charges dated 27.10.2018 against the two petitioners produced respectively as Annexure-19 and 20. The orders of the Deputy Regional Director, Munger Division, under Rule 43(b) and 139(c) of the Bihar Pension Rules issued, subsequent to the disposal of the writ petition are produced respectively as Annexure-P4 and P5 both dated 21.11.2023. The interpretation of Rules 43(b) and 139 of the Bihar Pension Rules squarely applies in the above case also. Para-31:- We have to notice the Explanation to Rule 43 which saves the application of the requirement, as per the proviso to the Rules for sanction or for the misconduct to be one committed within four years prior to retirement. The Explanation deems valid, any disciplinary proceeding instituted by framing of charges or by putting the Government servant under suspension, from an earlier date, as properly instituted from that earlier date. The appellants were not suspended before retirement. Though, disciplinary proceedings were initiated prior to retirement, the punishment imposed was set aside. De novo proceedings were permitted but despite opportunity so to do prior to retirement was available, no such proceedings were initiated till their retirement. The subsequent proceedings initiated hence, had to comply with the proviso to Rule 43(b). The proceedings are found to be the order of initiated and hence, punishment also is liable to be set aside. illegally Para-40:- Now, we come to LPA No. 1249 of 2023 arising out of CWJC No. 20610 of 2021. The petitioner was appointed as an Assistant Teacher on 07.02.1981 and retired on 13.11.2019. The allegation against her in the CBI report produced as Annexure-20, was that she was only having a diploma in teaching course, the course period being two months; in the place of BTC of two years duration; which later qualification was the minimum required. It was also alleged that she was not appointed after a proper procedure and that her appointment was 39 without roster clearance and without following the reservation protocol. The first memo of charge was issued on 28.08.2017. The petitioner retired on 30.09.2019 and even after that the departmental proceeding initiated against her was continued and the inquiry report at Annexure-32 was forwarded to the petitioner for her explanation by Annexure-33 which was submitted by Annexure-34. By Annexure-35 the petitioner’s 100 per cent pension was withheld. In her case there was no requirement of a sanction since the inquiry was initiated prior to retirement, but continuance of the same is not permissible since the appointment, which was the basis of the allegation was three decades back. There is also no valid ground to invoke Section 139(c). Para-41:- We cannot but deprecate the manner in which the inquiry proceedings were initiated by the State Government. True there was a CBI inquiry initiated in the PIL, in the course of which the petitioners were not at all examined or given an opportunity to put up their defence. The report of the CBI was filed in the year 2004 when all the petitioners were in service. Even then if a disciplinary proceeding had been taken, it would have been grossly delayed since the appointments were made in 1980’s. We cannot but refer to the decisions of the Hon’ble Supreme Court passed in Civil Appeal No. 1328 of 1995 Union of India Vs. Kishori Lal Bablanireported in AIR 1999 SC 517 and P. V. Mahadevan Vs. M.D. Tamilnadu Housing Board reported in AIR 2006 SC 207. In Kishori Lal Bablani (supra), the ground raised by the appellants that in a writ petition filed in the year 1985, appointments made as far back as in the year 1974 ought not to have been disturbed was accepted. In the case of P. V. Mahadevan initiating (supra) there was delay of 12 years disciplinary proceedings, upon which the charge memo itself was set aside. Here, the appointments made in the CBI were continued for long and even after a CBI report was submitted to the Court; the further action took another 14 years, i.e. commenced in 2016. With respect to the appeals first considered, it was again much later. We also have to observe that in the inquiry conducted, no witnesses were examined. The CBI report relied on was in 40 also not marked and proved through an officer who conducted the investigation. remained with reports submitted Para-42:- At the risk of repetition, it has to be stated that the appointments made in the year 1981, 1988 and 1989 were subjected to a CBI inquiry, the report of which was filed in the year 2004. Apparently no FIR was lodged and the State the Government, without any further action. It was long after, in the year 2016 that a Public Interest Litigation motivated the State Government into taking action. The order in the PIL only directed the State Government to take proceedings in accordance with law. We have found that the State Government had flouted all principles of fairness in disciplinary inquiry and also violated the specific rules of procedure as brought out under Article 309 of the Constitution of India. Para-43:- Less said the better about the manner in which the inquiry was conducted. The memo of charges only contained the extract of the CBI report pointing out the alleged irregularity, as against the appointment of the individual petitioners. There was none examined at the inquiry nor documents marked. The extract of the CBI report could have been marked and proved only by the person who prepared the report or another officer of the CBI, who could depose on the basis of the records. This procedure was not followed and the inquiry officer did not independently consider the irregularity in appointment alleged. Para-44:- On how a valid disciplinary inquiry, a quasi- judicial proceeding is to be conducted, we have to refer to Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 270. We extract para 14 of the said decision, which applied on all fours:- Para-14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during 41 investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. Para-45:- We have also noticed that the irregularity of roster clearance having not been obtained and the reservation rules not being followed were not treated as a ground to find irregularity in the appointments, in many individual cases. Insofar as the contention of over age is concerned, the petitioner who was accused with that, has demonstrated that it is otherwise. Para-46:- On the reasoning above, we reverse the judgment of the learned Single Judge by allowing the appeals and allow the writ petitions setting aside the impugned orders. The orders set aside are those in which the punishments have been imposed, produced in the writ petition or by way of interlocutory application. These produced in the appeals, passed while they were pending also are set aside.” 40. It has been held by the Hon’ble Supreme Court in Buddhi Nath Chaudhary v. Abahi Kumar, reported in (2001) 3 SCC 328, at Paragraph 6 as follows:- “Para 6:- The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results. Since we are disposing of these matters on equitable 42 consideration, the learned counsel for the contesting respondents submitted that their cases for appointment should also be considered. It is not clear whether there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the selected candidates are displaced, the cases of the contesting respondents cannot be considered. We think that such adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for a long period, but the contesting respondents do not come in that class. The effect of our conclusion is that appointments made long back pursuant to a selection need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup v. State of Haryana; District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Deviand H.C. Puttaswamy v. Hon’ble Chief Justice of Karnataka High Court, Bangalore. Therefore, we must let the matters lie where they are.” (Emphasis supplied) 41. From perusal of the impugned order dated 04.09.2019, it appears that the appointment of petitioner was held irregular vide said impugned order on the ground that the petitioner could not produce any evidence with respect to fulfilment of the pre- conditions of such appointment, i.e. advertisement in the newspapers, roster clearance, reservation policy etc. at the time of her appointment, which is in 43 contravention of the law laid down in Tajvir Singh Sodhi v. State (UT of J&K), reported in 2023 SCC OnLine SC 344, in which it is held that the burden of establishing mala fides is heavily on the person who alleges it and the allegations of mala fides are more than often easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility, and in the present case it was the respondents who made allegations against the petitioner regarding such non-fulfilment of aforesaid pre-conditions for appointment at time of her appointment, but they not only have not produced any evidence to prove such allegation, but also demanded such evidence from the petitioner. 42. It has been held in the case of Tajvir Singh Sodhi v. State (UT of J&K), reported in 2023 SCC OnLine SC 344 at Para 25 as follows:- “Para 25:- It was contended that this Court in the context of non-availability of any part of selection records has, in Trivedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corporation, (2007) 8 SCC 644 (Trivedi Himanshu Ghanshyambhai) held that only because the records could not be produced in view of the fact that they were not available, no inference as to mala fides can be drawn against the members of a Selection Committee and the selection cannot be cancelled. In this regard it was submitted that the impugned judgment and the judgment of the Single Judge, setting aside the entire selection of the appellants herein due to the non-availability of 44 individual award rolls, despite, signed approval of the final Select List by the Board, is contrary to law. That the burden of establishing mala fides is heavily on the person who alleges it and the allegations of mala fides are more than often easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility, vide Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579; State of Bihar v. P.P. Sharma, (1992 Supp (1) SCC 222); Ajit Kumar Nag v. Indian Oil Corporation Ltd., (2005) 7 SCC 764; Union of India v. Ashok Kumar, (2005) 8 SCC 760.” 43. It has been held by the Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334 at Para 18 as follows: Para 18:- It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. 45 (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” (Emphasis supplied) 44. It further appears that before passing the impugned order dated 04.09.2019 in the present case the matter was never referred to the Jharkhand Public Service Commission as per proviso (c) of Rule 43 (B) of the Jharkhand Pension Rules, which requires that the Bihar (Jharkhand) Public Service Commission, shall be consulted before final order of stoppage of pension is passed. Therefore, the impugned Order dated 04.09.2019 (i.e. Annexure-6) is illegal and arbitrary as concurrence of the Public Service Commission is a condition precedent, before passing the final order in a disciplinary proceeding after retirement of the Government servant and in the present case Jharkhand Public Service Commission was neither consulted nor its 46 opinion has been sought for which makes the impugned order invalid and non-sustainable in the eye of law. 45. In view of the law laid down by the Hon’ble Supreme Court, Hon’ble High Court of Patna and the Jharkhand High Court and on the facts and in the circumstances mentioned above, Order dated 04.09.2019 (i.e. Annexure-6) passed by Respondent No.5 is quashed and set aside. Consequently, the Respondents are directed to release forthwith entire retiral benefits and the pension of the petitioner and also her arrears of pension and all other consequential benefits within a period of Eight (08) weeks from the date of receipt/production of a copy of this order. 46. Thus, this writ petition is allowed with the aforesaid direction and observations indicated above. Jharkhand High Court, Ranchi Judgment pronounced on 7th December, 2024 N.A.F.R./s.m. (Sanjay Prasad, J.) 47