The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 424 of 2024 Ravindra Kumar Singh, aged about 66 years, Son of Durga Dayal Singh, Resident of D-2, Moon City, Dimna Road, Mango, P.O. Mango, P.S. Mango, Jamshedpur, District- East Singhbhum, State-Jharkhand Versus ..… Appellant 1. The State of Jharkhand 2. The Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, having its office at Project Bhawan, P.O. Dhurwa, P.S. Dhurwa, District- Ranchi 3. The Joint Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, having its office at Project Bhawan, P.O. Dhurwa, P.S. Dhurwa, District- Ranchi 4. The Special Secretary, Urban Development and Housing Department, having its office at Project Bhawan, P.O. Dhurwa, P.S. Dhurwa, District- Ranchi 5. The Deputy Commissioner, Chatra, P.O.- Chatra, P.S. Chatra, District Chatra ..... Respondents --------- CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI --------- For the Appellant For the Respondent s : Mr. Dhananjay Kr. Dubey, Advocate : Mr. Indranil Bhaduri, Advocate --------- 02/ Dated: 26.07.2024 I.A. No. 7049 of 2024 The instant interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 16 days in preferring the instant appeal. 2. Considering the reason assigned in the interlocutory application and taking into consideration the purport of Section 5 of the Limitation Act, the delay of 16 days in preferring the instant appeal is hereby condoned. 3. Accordingly, the I.A. No. 7049 of 2024 stands allowed. L.P.A. No. 424 of 2024 Prayer 4. The instant Letters Patent Appeal is directed against the order dated 12th April 2024 passed by the learned Single Judge in W.P.(S) No. 3315 of 2023 whereby and whereunder writ petition has been dismissed by refusing to interfere with the Memo no. 3165 dated 01.06.2023 by which decision has been taken against the petitioner for initiation of departmental proceeding under Rule 43(b) of the Jharkhand Pension Rules. Factual Matrix of the Case 5. The brief fact of the case, as per the pleading made in the writ petition, required to be enumerated, which reads as under: The petitioner was appointed as Deputy Collector pursuant to advertisement and selection and joined the said post on 17.05.1992. On 31.12.2010, the petitioner was transferred to Chatra district as District Land Acquisition Officer and joined on 31.01.2011 and on 19.04.2012, he was transferred from Chatra to Chaibasa district as Sub-Divisional Officer, Sadar. The allegation against the petitioner in this case relates to the period from 31.01.2011 to 19.04.2012 during which the petitioner was posted as Land Acquisition Officer in the district of Chatra. The petitioner was served with memo No. 3065 dated 10.05.2018 by which he was asked to explain with regard to one letter No.397 dated 19.01.2018 enclosing another letter No.772 dated 19.12.2017 being the charge framed and forwarded for further action in Prapatra “ka” by the Deputy Commissioner, Chatra for the irregularities. The petitioner vide letter dated 25.07.2018 submitted his explanation and denied the allegations and before the petitioner could hear anything further from the respondents, the petitioner had attained the age of superannuation on 31.12.2018. 2 Thereafter the disciplinary proceedings were initiated by invoking rule 43 (b) of Jharkhand Pension Rules against the petitioner. Petitioner being aggrieved from the aforesaid has preferred writ petition being W. P. (S) 3315 of 2023.The petitioner has taken the ground before the learned single Judge that the said proceedings are barred by proviso (a) (ii) of rule 43(b) of Jharkhand Pension Rules which prohibit initiation of any disciplinary proceedings after retirement for allegations relating to a period beyond 4 years. Further grounds has been taken by the petitioner that at no point of time any resolution was issued indicating initiation of department proceeding against him, rather the letter dated 10.05.2018 was only seeking an explanation from the petitioner and it does not indicate any single word that the departmental proceeding was being initiated against the petitioner, to which the reply was already filed on 25.07.2018 and after much delay, the impugned resolution dated 01.06.2023 has been issued for initiation of departmental proceeding under Rule 43(b) of the Jharkhand Pension Rules. The learned Single Judge had refused to interfere with the impugned resolution dated 01.06.2023 by dismissing the writ petition on the ground that the charge memo was served upon the petitioner prior to his retirement to which the petitioner duly responded, but it was only the resolution of initiating departmental proceeding which was passed after his retirement therefore, the proceedings cannot be said to be hit by proviso (a) to Rule 43 (b) of Jharkhand Pension Rules considering the provisions of Explanation (a) to Rule 43 (b) of Jharkhand Pension Rules and the disciplinary proceeding is deemed to have been initiated prior to the retirement of the 3 petitioner by issuance of charge memo. Being aggrieved from the aforesaid order the instant intra Court appeal has been preferred by the petitioner/appellant. 6. It is evident from the factual aspect that the writ petitioner while working as Land Acquisition Officer in the district of Chatra, is alleged to have committed some irregularity during his posting from 31.01.2011 to 19.04.2012. Thereafter, he was transferred from the aforesaid place and has been served with the memo of charge being Memo no. 3065 dated 10.05.2018, by which he was asked to explain with regard to one letter No.397 dated 19.01.2018 enclosing another letter No.772 dated 19.12.2017 being the charge framed and forwarded for further action in Prapatra “ka” by the Deputy Commissioner, Chatra. 7. In pursuant the petitioner/appellant has submitted his reply on 25.07.2018 and denied the allegations but no final order was passed. Thereafter, on 31.12.2018, the appellant superannuated from the service. 8. The respondent State has issued another memorandum of initiation of proceeding under Rule 43 (b) of Jharkhand Pension Rules on 01.06.2023. The appellant being aggrieved has approached to this Court by filing writ petition being W.P.(S) No. 3315 of 2023 by challenging the memo No. 3165 dated 01.06.2023 by which the proceeding under Rule 43 (b) of the Jharkhand Pension Rules has been initiated. 9. The ground has been taken that the proceeding under Rule 43 (b) the Jharkhand Pension Rules cannot be initiated in view of the rider of limitation of 4 years from the date of occurrence and the date of institution of the proceeding under Rule 43 (b) of the Jharkhand Pension Rules. 4 10. The learned Single Judge has appreciated the legal issue and has refused to interfere with the impugned memo no. 3165 dated 01.06.2023
Decision
by dismissing the writ petition, which is the matter of the present appeal. Arguments of the learned counsel for the appellant 11. Mr. Dhananjay Kumar Dubey, learned counsel appearing for the appellant has submitted that the learned writ Court has not appreciated the fact that at no point of time any resolution was issued indicating initiation of department proceeding against the petitioner, rather the letter dated 10.05.2018 was only seeking an explanation from the petitioner and it does not indicate any single word that the departmental proceeding was being initiated against the petitioner, to which the reply was already filed on 25.07.2018 and after much delay, the impugned resolution dated 01.06.2023 has been issued for initiation of departmental proceeding under Rule 43(b) of the Jharkhand Pension Rules which as per the submission of the petitioner is not permissible in law. 12. It has been submitted that instant proceeding caused to be initiated, the moment the appearance through reply has filed against the charge dated 10.05.2018, but no decision was taken by the authority and after lapse of more than 5 years from the date of superannuation, the present proceeding under Rule 43 (b) of the Jharkhand Pension Rules has been initiated. But, these two aspects of the matter have not been appreciated by the learned writ Court. Arguments of the learned counsel for the Respondent-State 13. Per contra, Mr. Indranil Bhaduri, learned counsel for the State while defending the impugned order has submitted that even though there is 5 delay in initiation of proceeding under Rule 43 (b) of the Jharkhand Pension Rules but that will not aid to the appellant, reason being that the provision as contained under Rule 43 (b) of the Jharkhand Pension Rules, wherein proceeding initiated during the period while the delinquent employee was in service and if the departmental proceeding initiated under the conduct rule has not been concluded then after superannuation, the said departmental proceeding initiated under the conduct rule is deemed to be converted under Rule 43 (b) of the Jharkhand Pension Rules. 14. It has also been submitted that the departmental proceeding will be said to be initiated while the appellant was in service, as the date of memorandum of charge has been issued i.e. on 10.05.2018 as also the reply to the said charge has been submitted dated 25.07.2018 but no final decision has been taken and in the meanwhile the appellant has superannuated from his service w.e.f. 31.12.2018. Therefore, the proceeding will be deemed to be converted under the provision of Rule 43 (b) the Jharkhand Pension Rules and hence it will be said that the day when the appellant has superannuated from service, the aforesaid proceeding will be deemed to be in continuation till the conclusion of the proceeding by passing a final order. 15. It has been submitted therefore that in view of the above, it has been contended that there is a delay which is immaterial since, the proceeding under Rule 43 (b) of the Jharkhand Pension Rules will be deemed to be in continuation, hence for the purpose of coming to the conclusion, the notice by way of memo has been issued against the pending proceeding under Rule 43 (b) of the Jharkhand Pension Rules. 6 16. The learned State counsel based upon the aforesaid ground has further submitted that the learned Single Judge has appreciated the aforesaid aspects of the matter based upon the legal position and hence the impugned order does not suffer from any error. Analysis 17. This Court has heard the learned counsel for the parties and gone across the finding recorded by the learned Single Judge in the impugned order. The issue which has been raised by learned counsel for the petitioner i.e. in two folds which reads as under: (i) Merely because the memorandum of charge has been issued, while the appellant was in service, it will not be said to be initiation of departmental proceeding. (ii) The memo has been issued after lapse of 5 years even though the reply has been submitted based upon the charge framed but no decision has been taken, then it will not say to be justified on the part of the State for not taking any decision for 5 years with respect to the aforesaid. 18. This Court in order to appreciate the said argument particularly the ground no. (ii), deemed it fit and proper to refer to the provision of Rule 43 (b) of the Jharkhand Pension Rules which reads as under: ―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 Government if the pensioner is found in 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 reemployment after retirement: 7 Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment; shall not be instituted save with the sanction of the State Government; (i) (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 6 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 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) instituted:- (i) judicial proceedings shall be deemed to have been 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 complaint is presented, or as the case may be, an application is made to a civil Court.‖ (ii) 19. It is evident from the provision of Rule 43 (b) of the Jharkhand Pension Rules that State has been conferred with the power to initiate the proceeding under Rule 43 (b) of the Rules in case the State suffers pecuniary loss on the findings of misconduct either on the departmental proceeding or judicial proceeding. The aforesaid provision to apply subject to certain conditions as provided in the explanation enumerated above. It has also been provided that on which date either the departmental proceeding or the judicial proceeding will be said to be set at motion. 20. The provision of Rule 43 (b) thus stipulates that the pension can be withheld, whole or part, in case of finding of misconduct either in the departmental or judicial proceeding. Rule 43 (b) contains certain 8 explanation wherein the date of initiation of departmental proceeding, the date of commencement of the proceeding along with a rider of limitation for initiation of proceeding under Rule 43 (b) for creating the period of limitation of four years in between the date of occurrence and date of institution then only the proceeding under rule 43 (b) can be initiated against the public servant who has superannuated. 21. It is evident that the departmental proceeding is said to be initiated the day when memorandum of charge will be issued while the judicial proceeding is said to be initiated from the day when the chargesheet has been submitted before the competent court having such jurisdiction. The issue of 4 years of limitation is also provided under explanation (i) of the Rule 43 (b) of the Jharkhand Pension Rules, wherein the rider has been put upon the cases where departmental proceeding has not been initiated while the public servant was not in service, then the departmental proceeding will not be initiated if the occurrence is beyond the period of 4 years from the date of occurrence to the date of institution departmental proceeding. But, the aforesaid rider is applicable only in the case of departmental proceeding has not been initiated against the delinquent employee who was in service. But the situation is the different if the delinquent employee has been superannuated and in such circumstances the proceeding under Rule 43 (b) of the Jharkhand Pension Rules is required to be initiated within the period of 4 years from the date of institution and the date of occurrence. 22. It is not available in the statutory provision as under Rule 43 (b) of the Jharkhand Pension Rules, neither the substantial provision nor the 9 explanation of the provision has been given that what would happen if the departmental proceeding has been initiated while the public servant is in service but remain inconclusive the day delinquent employee superannuated. 23. The aforesaid aspect of the matter has been considered by the Full Bench of Patna High Court in the case of Shambhu Saran versus State of Bihar reported in (2000) 1 PLJR 665 (FB) wherein it has been held that in the circumstances where the departmental proceeding remains inconclusive due to superannuation of the particular delinquent employee, the proceeding will be deemed to be converted under the provision of Rule 43 (b) of the Jharkhand Pension Rules. For ready reference relevant paragraph of the said judgment is being referred herein: if “13. In that view of the matter, we answer the reference by holding as follows: — (i) In a case where a disciplinary proceeding has already been the age of started, even superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary.‖ the person concerned attains 24. This Court in order to examine the factual aspects advanced on behalf of the appellant, the admitted fact is that the delinquent employee i.e. the appellant has superannuated from service on 31.12.2018. The memorandum of charge was issued on 10.05.2018 and the reply was also submitted while the appellant was in service. 25. The aforesaid admitted facts, therefore, corroborate that while the appellant was in service, the departmental proceeding was already set on motion by issuance of the memorandum of charge on 10.05.2018, although, the reply which was given by the appellant but the same has not 10 been decided. Conclusion 26. After superannuation of the appellant, the memorandum dated 01.06.2023 has been issued for initiation of proceeding under Rule 43 (b) of the Jharkhand Pension Rules, therefore, this Court is of the view that rider of 4 years limitation will not come into play in the facts of the present case, since, the departmental proceeding was already set at motion while the appellant was in service and hence the proceeding was pending under the Rule 43 (b) of the Jharkhand Pension Rules, when the appellant had superannuated from service i.e. on 31.12.2018. 27. Admittedly, there is delay by the respondents but the question which arises before this Court is that on the ground of the delay of 5 years, notice issued under Rule 43 (b) of the Jharkhand Pension Rules setting the proceeding which is set at motion can be interfered with. 28. The answer of this Court is negative, reason being that the proceeding was initiated while the appellant was in service by issuance of the memorandum of charge on 10.05.2018 and the reply of the same was given by the appellant i.e. delinquent employee, but the same has not been decided, then in such circumstances the proceeding will be said to be in continuation and as such, according to considered view of this Court, the said proceeding is to be given a conclusive end and for that reason the memo dated 01.06.2023 has been issued under Rule 43(b) of the Jharkhand Pension Rules. 29. This Court therefore is of the firm opinion that in the fact of the present case the rider of the limitation will not be applicable. 11 So far, as ground of delay of 5 years is concerned, the same is also not material reason being the proceeding itself in motion, for the purpose of logical end of the proceeding. 30. This Court after having discussed the aforesaid facts and after going through the order passed by the learned Single Judge, is of the view that legal proposition has rightly been appreciated based upon that the memo no. 3165 dated 01.06.2023 has not been interfere with. 31. Accordingly, the instant intra court appeal stands dismissed. 32. So far as the issue of delay is concerned, this Court is of the view that since the writ petitioner has retired from service w.e.f. 31.12.2018 but still the proceeding is going on and as such, this Court deemed it fit and proper to direct the State to conclude the aforesaid proceeding preferably within a period of three months from the date of this order, in accordance with law. 33. Accordingly, with the aforesaid direction and observation the instant letters patent appeal is disposed of. (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Pramanik/ A.F.R. 12