Braj Shankar Prasad Sinha …. … v. through the Principal Secretary, General The State of Jharkhand through the Chief Secretary, Ranchi
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5001 of 2015 Braj Shankar Prasad Sinha …. …. Petitioner 1. 2. 3. 4. 5. Versus through the Principal Secretary, General The State of Jharkhand through the Chief Secretary, Ranchi. The State of Bihar Administration Department, Govt. of Bihar, Patna. The Deputy Secretary, Department of Personnel Administrative Reforms and Rajbhasha, Ranchi. The Commissioner, South Chhotanagpur Division, Ranchi. The Deputy Commissioner, Ranchi. …. … Respondents
Legal Reasoning
------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : : Mr. Ashish Kumar Shekhar, AC to SC(L&C)-II ----- For the Petitioner For the Respondents Mr. Sanjay Kumar Pandey No.2, Advocate 5/ 02.03.2023 Heard the parties. 2. The petitioner has challenged the order contained in Memo No. 10928 dated 13.11.2014, whereby 5% pension of the petitioner has been withheld for a period of five years under the garb of Section 139 of the Jharkhand Pension Rules. Petitioner has also prayed for payment of salary for the suspension period from 27.8.1997 to 23.7.1999, though the said period was regularized by the authority for the purpose of pension. Appellate order dated 10.6.2015 is also under challenge. 3. The brief facts, as pleaded in the writ petition, are that the petitioner was appointed as Deputy Collector at Arrah (Bhojpur) on 16.7.1991 in the unified State of Bihar. While the petitioner was posted as Block Development Officer, Ratu, a memo of charge was framed containing altogether 13 charges, with allegation of irregularity in Indira Awas Schemes and other financial irregularities. Thereafter, departmental proceeding was started and when the same was not concluded even after a long time, the petitioner moved before the Patna High Court in CWJC No. 4581 of 1998 and thereafter again in CWJC No. 1317 of 1999. Thereafter, the proceeding was culminated into punishment of censure with further direction that no other benefits except subsistence allowance will be given. Aggrieved thereby, petitioner challenged the said order before Division Bench in L.P.A. No. 168 of 2011, which was allowed by order dated 5.5.2011. However liberty was there with the respondent authorities to decide the matter afresh, if they wanted, but the proceeding should be concluded preferably within 2 nine months. Pursuant to such direction, the matter was remitted back to the State of Jharkhand, since the petitioner was finally allocated to the Successor State of Jharkhand for passing fresh order. The petitioner also represented to the State of Jharkhand on 14.5.2011 pursuant to direction of the Division Bench of Patna High Court, but no decision was taken. In the meantime, petitioner retired on 31.1.2014 and thereafter the Department vide order contained in Memo No. 10928 dated 13.11.2014 passed the penalty order withholding of 5% pension for a period of five years under the garb of provisions under Rule 139(b) of Jharkhand Pension Rules. By this impugned order, it was held that the petitioner shall not be entitled for anything than what he has been paid as subsistence allowance. Aggrieved thereby, the petitioner has knocked the door of this Court. 4. Mr. Sanjay Kumar Pandey No.2, learned counsel appearing for the petitioner vociferously argues that the impugned order dated 13.11.2011 is not sustainable in the eyes of law, inasmuch as, the order has been passed in complete disregard of the order passed by the Patna High Court in L.P.A. No. 168 of 2011. Learned counsel further adds that though it is true that the respondents were given opportunity to proceed afresh in the matter, but, it is equally true that the respondents were directed to conclude it within nine months. Further learned counsel submits that once the Patna High Court after hearing the parties quashed and set aside the minor punishment of censure, it was not open for the respondents to proceed under Rule 139(b) of Pension Rules. He further submits that Rule 139(b) comes into play only when the service of employee was not found thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount, as it thinks proper. In the present case, the ingredient of Rule 139(b) is totally misplaced. Learned counsel submits that when the minor punishment of censure was quashed, the petitioner was entitled for salary for the period of suspension, except what has already been paid. Learned counsel further submits that the order of deduction of 5% pension in garb of Rule 139(b) is not sustainable in law and as such, the same deserves to be quashed and set aside. 5. Mr. Ashish Kumar Shekhar, learned counsel representing the respondent State submits that the impugned order is fully justified. It was open for the respondents to proceed afresh pursuant to direction of the Patna 3 High Court passed in LPA No. 168 of 2011 and in compliance thereof, the respondents have proceeded under Rule 139(b) of Pension Rules after retirement and that was the only recourse available with the respondents. Since the petitioner was given punishment of censure, it cannot be said that the entire service of the petitioner was satisfactory and therefore, the respondents have proceeded under Rule 139(b) and have passed the order of deduction of 5% pension for a period of five years, with further stipulation that he shall not be entitled to get anything what he has been paid as subsistence allowance during the period of suspension. 6. Be that as it may, having heard the learned counsel for the parties and having gone through the records, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:- (i) Admittedly, the minor punishment of censure was quashed and set aside by the Patna High Court in LPA No. 168 of 2011. (ii) The Patna High Court while setting aside the order of censure had observed as under:- “Considering the nature of the charge, we grant liberty to the competent authority to decide afresh whether appellant should be subjected to any proceeding or not and if yes, whether the major punishment or minor punishment. If the competent authority opts for future proceeding against the appellant, it should be concluded without any delay and in accordance with law at an early date preferably within nine months from the date of production / communication of this order before the competent authority.” (iii) The respondents did not abide by the specific direction of the Court. The respondents as per their aspiration have proceeded after three years, that too, after retirement of the petitioner and have passed the order on 13.11.2014 under the garb of provisions under Rule 139(b) of the Pension Rules. It is not open for the respondents to follow the direction of the Patna High Court in piecemeal. It has to be followed in its true letter and spirit. What is suited to the respondents have been followed and what is against them have been discarded. The orders of the Court are always binding on both the parties. If they are aggrieved, they can move before the higher Court. But in the present case, the respondents having failed to 4 comply the direction of the Patna High Court in conclusion of proceeding within stipulated time, they punished the petitioner under the garb of Rule 139(b). (iv) When the order of the punishment of censure was quashed and set aside, it was not open for the respondents to pass a fresh order without initiation of any proceeding under Rule 55 of the Government Servant (Classification, Control and Appeal) Rules, or under Rule 43(b) of the Jharkhand Pension Rules. Without initiation of proceedings under the aforesaid Rules, the punishment of withholding of pension under Rule 139(b) is not permissible in the eyes of law. (v) The Respondents have clarified, rather, justified their order by saying that as the service of the petitioner was not found thoroughly satisfactory, it was open for the respondents to proceed under Rule 139(b). This stand of the respondents is totally misconceived, as the Patna High Court after considering every aspects of the matter has already quashed and set aside the minor punishment of censure and therefore, it can comfortably be inferred that the service of the petitioner was totally blemish free. 7. As a sequitur to the aforesaid rules, regulations, guidelines and juridical pronouncements, the impugned order dated 13.11.2014 and the appellant order dated 10.6.2015 are hereby quashed and set aside. The petitioner is entitled for consequential benefits as accrued to him i.e. the salary for suspension period. Since the petitioner is retired, the entire pensionery amount shall be extended to him within a period eight weeks from the date of receipt / production of a copy of this order. 8. With these observations and directions, this writ petition stands allowed. R.Kr. (Dr. S. N. Pathak, J.)