Binod Kumar Jha … v. 1. The State of Jharkhand. 2. Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2243 of 2021 Binod Kumar Jha … … Petitioner Versus 1. The State of Jharkhand. 2. Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi. Joint Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi. 3. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : For the Petitioner Mr. Ajit Kumar, Sr. Advocate Mr. Sanjeev Thakur, Advocate Ms. Aprajita Bhardwaj, Advocate For the Respondent-State : Mr. Shubham Mishra, AC to SC(M)-II ----- CAV On : 07.12.2023 PRONOUNCED On : 23.02.2024 ------ Dr. S.N. Pathak, J. Heard Mr. Ajit Kumar, learned senior counsel assisted by Mr. Sanjeev Thakur and Ms. Aprajita Bhardwaj, learned counsel appearing for the petitioner and Mr. Shubham Mishra, learned counsel representing the respondents. Prayer 2. The petitioner has approached this Court with a prayer for quashing of the resolution contained in Memo No. 3520 dated 29.7.2021 (Annexure-6/A) whereby full pension and gratuity of the petitioner has been withheld under the purported exercise of power under Rule 43(a) of the Jharkhand Pension Rules. Upon quashment, the petitioner has prayed for a direction upon the respondents to pay full pension and gratuity, as the petitioner stood retired on 29.02.2020. The Facts. 3. Sans unnecessary details, as pleaded in the writ petition, the case of the petitioner is that he was appointed as Block Development Officer in the erstwhile State of Bihar on 14.09.1990. In course of time, Vigilance P.S. Case No. 16/2013 was lodged against the petitioner and others and he was convicted by Special Judge, ACB, Ranchi by judgment
Legal Reasoning
dated 4.9.2018. The petitioner challenged his conviction before this Court in Criminal Appeal No. 1402 of 2018, wherein he was granted bail and the criminal appeal was admitted for hearing and is still pending. In view of his 2 conviction, the petitioner was suspended vide order dated 10.12.2018 and he was directed to report at Headquarter i.e. office of Commissioner, Chhota Nagpur Division, Ranchi. Thereafter, the petitioner handed over the charge to another officer and joined at Headquarter on 14.12.2018. A show cause notice was issued to the petitioner under Rule 14(xi) of the Jharkhand Government Servant (Classification, Control & Appeal) Rules, 2016 on 13.12.2018. The petitioner replied the same on 13.12.2018 claiming his innocence. Thereafter, nothing was done and finally on 29.02.2020 the petitioner was allowed to retire. After retirement, the petitioner was not paid anything except provident fund and group insurance. A show cause notice dated 21.7.2020 was issued to the petitioner under the provisions of Rule 43(a) of the Jharkhand Pension Rules. This show cause was duly replied by the petitioner on 20.1.2021 explaining his innocence in the criminal case. Again the petitioner submitted various representations requesting to release the pension including gratuity, but no heed was paid.
Decision
Finally, during pendency of the writ petition, the respondents have issued a resolution contained in Memo no. 3520 dated 29.7.2021 by which full pension of the petitioner has been withheld. By way of I.A. No.10275 of 2022, the petitioner has challenged the impugned order and the same was allowed on 10.02.2023 treating the same as part of the main writ petition. 4. A counter affidavit has been filed stating therein that with the allegation of taking illegal gratification from his subordinate employees for disbursement of provisional gratuity, Vigilance P.S. Case No. 16/2013 was lodged against the petitioner. The Government has granted sanction against the petitioner and thereafter, he was taken into custody from 28.1.2014. The petitioner was put under suspension during the custody period i.e. from 28.1.2014 to 22.2.2014. After the petitioner was convicted for the offence under section 7 of the P.C. Act and sentenced for one year rigorous imprisonment along with fine vide judgment dated 6.9.2018, a show cause notice under the Jharkhand Government Servants (Classification Control and Appeal) Rules, 2016 was issued on 13.12.2018. Since the petitioner did not respond to the same, several reminders were issued by the department. In such circumstances, the department proceeded to take ex-parte proceeding and for this, concurrence of the Jharkhand Public Service Commission was sought for vide memo no. 456 dated 19.2.2020. It is 3 further pleaded that though all procedural steps have been taken for passing a final order in the departmental proceeding, except for issuance of a formal order, but the petitioner in the meantime superannuated. Thereafter, a show cause notice under Rule 43(a) of the Jharkhand Pension Rules has been issued and after finding the reply of the petitioner unsatisfactory, the impugned order dated 29.7.2021 has been passed. Argument advanced by Learned Senior Counsel for Petitioner. 5. Mr. Ajit Kumar, learned senior counsel assisted by Ms. Aprajita Bhardwaj and Mr. Sanjeev Kumar Thakur, submits that the very initiation of proceeding under Rule 43(a) of the Jharkhand Pension Rules and thereby forfeiting the full pension of the petitioner by the impugned order dated 29.2.2020 is not applicable in the present facts and circumstances of the case. Referring to the very ingredients of Rule 43(a), learned senior counsel submits that this Rule starts with the words ‘Future Good Conduct’ as condition for grant of pension. He further submits that this Rule infers that if a Government servant after retirement is found to be involved in any grave misconduct or serious crime then, the Government under the said Rules can take a decision of withholding or withdrawing the pension or any part of it. Learned senior counsel submits that the impugned order dated 29.2.2020 is totally in contravention of the Rule 43(a), inasmuch as, this Rule provides that after retirement, if the Government servant is found to be involved in any grave misconduct, the Government can take a decision of withholding the pension, but in the present case, admittedly the petitioner was convicted on 4.9.2018 while the petitioner was in service. The offence / misconduct had taken place before the date of retirement, rather, even the petitioner was convicted much before the date of retirement and hence, in any case, the offence or misconduct of the petitioner shall not fall within the ambit of ‘future conduct”. Referring to the use of words “if the pensioner is convicted of serious crime or be guilty of grave misconduct”, learned senior counsel submits that in order to fulfil the ingredients of the said Rule, the Government employee has to be a pensioner, meaning thereby he/she must have retired from service and would be receiving pension from the Government and then he/she is found to have committed any grave misconduct or serious crime, the Government can forfeit his/her pension following the procedure. Admittedly, in the 4 present case, neither the petitioner is a pensioner nor he had committed the offence for which his pension had been withheld after his retirement. The offence / misconduct occurred while he was in service and even he was convicted in service period and not after retirement. In this very scenario, learned senior counsel refers the judgment delivered by the Division Bench of this Court in the case of Sharat Chandra Singh Vs. State of Jharkhand & Ors., reported in 2019 SCC OnLine Jhar 1974 to contend that the Division Bench has clearly held that for a case which was instituted against the petitioner while he was in service cannot bring him under the scope of Rule 43(a) of the Jharkhand Pension Rules, even though the order of conviction was passed after the retirement. Placing the said citation, learned counsel submits that the case at hand is on better footing. Herein the offence as well as conviction was passed while the petitioner was in service. Therefore, in no manner, the case of the petitioner fall within the ambit of ‘future conduct’ as mandated in Rule 43(a) of the said Rules. 6. Mr. Ajit Kumar, learned senior counsel further refers the judgment in the case of Nityanand Kumar Singh Vs. State of Bihar & Ors., reported in 2016 (2) PLJR 315, wherein the Division Bench of the Patna High Court while dealing with the imposition of Rule 43(a) of Bihar Pension Rules held that Rule 43(a) is not related to a conduct of the pensioner during service period and / or service rendered on re- employment, rather, it is the conduct expected from the pensioner after his retirement and after he has been granted pension. 7. In addition to that, learned senior counsel further submits that there was sufficient time for the respondents to conclude the regular departmental proceeding after the conviction of the petitioner on 4.9.2018 and to punish him under the provisions of Jharkhand Government Servant (Classification, Control and Appeal) Rules 2016 and even the second show cause notice was issued on 13.12.2018 under the provisions of said Rules, 2016. Learned senior counsel submits that though the petitioner was subjected to a disciplinary proceedings while he was in service by issuance of show cause notice, but instead of either conducting the regular proceeding or converting it into Rule 43(b) of the Jharkhand Pension Rules, the respondents adopted a shortcut method for imposing the penalty under the provisions of Rule 43(a) of Jharkhand Pension Rules, which itself is 5 otherwise not applicable in the present facts and circumstances of the case. 8. Taking another aspect of the matter, learned senior counsel submits that even in absence of passing of any final order against the petitioner after his conviction, it cannot be considered to be deemed dismissal of petitioner from service and there is liberty with the respondents to forfeit the entire pension under the provisions of Rule 43(a). Learned senior counsel submits that it is a settled position of law that conviction does not lead to automatic dismissal from service. A formal order is required to be passed by the Department showing application of mind with respect to dismissing a person from service. Even if the disciplinary authority chooses to dispense with the requirement of conducting a formal enquiry before dismissing any person, they can only do so after recording reasons for the same. Admittedly, in the present case, no formal order has been issued by the respondents either dismissing him from service or any other order remotely mentioning that they do not chose to conduct or conclude the departmental proceeding against him. To strengthen his argument, learned senior counsel places heavy reliance upon the decision in the case of Union of India & Ors. Vs. Tulsiram Patel, reported in (1995) 3 SCC 398. 9. In furtherance of his arguments, learned senior counsel submits that there are four provisions enumerated in the Bihar / Jharkhand Pension Rules with regard to imposition of punishment to the Government employee after retirement. Rule 43(b) deals with an employee having in a departmental or judicial proceeding to have been found guilty of grave misconduct subject to the fulfilment of conditions as contained in the said Rules. Rule 43(a) provides for conditions of future conduct of a pensioner that is to say that if the ex-employee is found to be involved in any criminal case or serious misconduct after retirement. In the instant case, since the respondents have failed to take action as per law within the prescribed limitation period by following the legal procedure under Rule 43(b) or Rule 139 of the Pension Rules, they cannot take shelter of Rule 43(a) of the said Rules to punish the petitioner, which is even otherwise not applicable in the facts of the case. Therefore, the impugned order is fit to the quashed and set aside and the respondents may be directed to extend all the pensionery benefits to the petitioner. 6 Argument advanced by Respondents. 10. On the other hand, Mr. Shubham Mishra, learned counsel representing the respondents opposes the contention of learned senior counsel for the petitioner and submits that the respondents have rightly punished the petitioner under the provisions of Rule 43(a) of the Jharkhand Pension Rules. He further submits that the petitioner has been made accused with the allegation of taking bribe from his subordinate employees for disbursement of gratuity amount. Thereafter, he was made accused in Vigilance P.S. Case No. 16 of 2013 and was convicted by the competent Court of criminal jurisdiction on 6.9.2018. Thereafter a show cause notice was issued on 13.12.2018. Since the petitioner did not respond to the second show cause notice followed by other reminders, ex-parte proceeding was initiated. In the way of conclusion of the departmental proceeding, the petitioner stood retired and thereafter taking concurrence from the Jharkhand Public Service Commission, notice was issued to him under the provisions of Rule 43(a) and considering the reply of the petitioner, impugned order was passed. There is no illegality or irregularity in punishing the petitioner under the provisions of Rule 43(a) of the Pension Rules. Findings of the Court. 11. Before delving deep into the matter, it would be apposite to extract the legal provisions of Rule 43(a) and 43(b) of the Jharkhand Pension Rules, which are as follows:- “43. (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (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 in if loss caused to Government departmental or judicial proceeding 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- the pensioner found is 7 (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 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 pensioner 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 (ii) In the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court.” 12. Having heard the learned counsel for the parties and having gone through the materials on record, this Court is of the view that no ground for interference is made out in the present writ petition for the following facts and reasons:- (i) The facts which are not in dispute are that the petitioner was appointed as Block Development Officer on 14.9.1990 and he was convicted by judgment dated 4.9.2018 passed by Special Judge, ACB, Ranchi in Vigilance P.S. Case No. 16/2013. It is also not in dispute that he was convicted for the offence under Section 7 of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year. The conviction under Section 7 of the Prevention of Corruption Act, 1988 is a grave misconduct. It is also 8 not in dispute that this conviction was during the service of the petitioner, as he reached the age of superannuation on 29.02.2020. An employee who committed such grave misconduct and the finding to this effect was recorded by a competent criminal Court; such employee cannot be held entitled for pensionery benefits. The misconduct is related to discharge of his official duty with respect to taking gratification other than legal remuneration in respect of an official act. (ii) The argument advanced by learned senior counsel for the petitioner that Rule 43(a) of Jharkhand Pension Rules cannot be invoked in the present case, has some substance. Rule 43(a) shall be applicable in a case where the person is receiving pension and during such period, he is convicted for a serious crime or found guilty of grave misconduct. In the present case, since the conviction was before the date of retirement, there is no question of application of Rule 43(a) of the Jharkhand Pension Rules. But then mere mentioning of a wrong provision in the impugned order would not give any right to the petitioner to claim pension. This is so because Rule 43(b) can be safely applied in such a case. Moreover, the impugned order withholding the entire pensionery benefits has been passed after consultation with the Jharkhand Public Service Commission. Therefore, the impugned order is inconformity with the proviso (c) of Rule 43(b) of the Jharkhand Pension Rules. (iii) It is true that after the conviction, the respondent-authorities ought to have taken a decision. Merely because of inaction on the part of the respondents would not be sufficient to make the petitioner entitled for pensionery benefits. Admittedly, a show cause notice was issued to the petitioner under the provisions of Jharkhand Government Servant (Classification, Control & Appeal) Rules, 2016 after the conviction and before his retirement. In fact, the petitioner was suspended also on 10.12.2018. The show cause notice is dated 13.12.2018 itself. In this view of the matter, merely because the respondents did not act upon on time to impose the penalty before his retirement would also not give any right for grant of pensionery benefit in favour of the petitioner. 9 (iv) Even otherwise, the respondents have a power under the law to impose the adequate punishment to the petitioner under the provisions of Pension Rules after retirement. Though the respondents have taken recourse under Rule 43(a) of Pension Rules, but the same is not attracted in the present facts and situation of the case. However, law is well settled that if the authority has a power under the law and mere citation of a wrong provision of law will not render the order illegal. In this context, the Hon’ble Supreme Court in the case of N. Mani v. Sangeetha Theatre, reported in (2004) 12 SCC 278 ; 9. “It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law”. (v) Similar issue fell for consideration before this Court in W.P.(S) No. 3159 of 2001 (Ram Dayal Rai Vs. Jharkhand State Electricity Board & Ors), wherein punishment for withholding of 5% pension was passed under the provision of Rule 43(b) of Pension Rules for not vacating the official accommodation after retirement. However, the Court has held that Rule 43 (b) is not applicable in the case. It has also been held that mere citation of a wrong provision of law, the order will not be rendered illegal, as in the facts of the case; Rule 43(a) is fully applicable. This judgment of the writ court has been affirmed upto the Hon’ble Supreme Court with some modification in the case of Ram Dayal Rai Vs. Jharkhand State Electricity Board & Ors, reported in (2005) 3 SCC 501. The relevant portion of the judgment of the writ court reads thus:- "It is true that the action as alleged against the petitioner does not relate to any misconduct while the petitioner was in service. Therefore, Rule 43(b) of the Bihar Pension Rules, 1950 is not applicable in the case. However, as 'future good conduct' is an implied condition for every grant of pension under Rule 43(a) of the Bihar Pension Rules, 1950, the competent authority has a right to withhold or withdraw a pension or any part of it, if the pensioner is found guilty of serious and grave misconduct. The impugned order dated 15th June, 2001, thus can be saved under the 10 aforesaid Rule 43(a) of the Bihar Pension Rules, 1950. Mere citation of a wrong provision of law will not render the order illegal.” (vi) Admittedly, Criminal Appeal (SJ) No. 108 of 2018 against the judgment of conviction and sentence is pending before this Court and the petitioner has been granted bail during the pendency of the appeal. Therefore, merely because of granting of bail, it would not be treated as suspension of the conviction. It is only the sentence which has been suspended during the pendency of the appeal. So long the conviction, it is stated that the conviction is operational and only the sentence has been suspended by this Court. Therefore, the petitioner cannot be made entitled to pensionery benefits. (vii) The judgments relied upon by the learned senior counsel for the petitioners are of no help to the petitioner. The judgment relied in the case of Tulsiram Patel (supra) is also of no help to the petitioner. This Court could not have considered the probability aspect to commensurate to the nature of misconduct. However, in the present case, in view of serious nature of charge and the conviction order rendered against the petitioner, this Court holds that withholding of entire pensionery benefits is commensurate to the nature of misconduct. The petitioner has been convicted under Section 7 of the Prevention of Corruption Act. The misconduct of taking bribe during the course of discharge of his duty has been proved in a full fledged criminal trial. In this view of the matter, the petitioner cannot be held entitled for pensionery benefits. (viii) The further argument of learned senior counsel for the petitioner that the proceeding which was initiated before retirement of the petitioner was never converted into a proceeding under Rule 43(b) of the Jharkhand Pension Rules has no legs to stand. It has been held by the Full Bench of the Patna High Court in the case of Shambhu Saran Vs. State of Bihar & Ors., reported in (2000) 1 PLJR 665 (FB) that there is no specific order of conversion required once departmental proceeding was initiated and the employee retires, the same is automatically converted into a proceeding under the Jharkhand Pension Rules. It has also been held by the Division Bench of Patna High Court that departmental proceeding will be said to be initiated 11 the day when the memorandum of charge is being issued against the concerned employee. The relevant paragraph-13(i) runs thus:- if the person concerned attains “(i) In a case where a disciplinary proceeding has already been started, even the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such the said Rule even after such action as provided under superannuation and for that purpose no specific or express order of the Government is necessary.” Therefore, this Court is of the view that no formal order to this effect is required to be passed. 13. However, before parting with this order, this Court is of the view that in the present case, the respondent-State has acted very casually. Such a high ranking officer of the State, who was involved in the case of illegal gratification, was required to be imposed the adequate penalty in accordance with the rules on time. This Court deprecates the callous attitude of the respondent-authorities in the present case. When there is specific provision enshrined in Rule 43(b) of the Jharkhand Pension Rules, the respondents should have mentioned the correct provisions of law in the notice as well as in the impugned order. However, action under the proviso (c) of Rule 43(b) of the Jharkhand Pension Rules for taking approval from the Jharkhand Public Service Commission was taken. 14. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, this Court hold that no interference is called for in the impugned order. This Court is in full agreement with the view of the respondent-State in withholding the pensionery benefits. 15. The writ petition lacks merit and the same is, hereby, dismissed. 16. However, in case, the judgment of conviction and order of sentence passed against the petitioner is set aside in future, the petitioner is at liberty to claim the pensionery benefits, which may be considered by the respondents in accordance with law. R.Kr. (Dr. S. N. Pathak, J.)