Ranjeet Kumar Rana v. The State of Jharkhand & Ors

bills/vouchers to the then Assistant Engineer namely Sri Rameshwer Saha on 12.12.2006 but perhaps said Mr. Saha did not submit the documents in the Divisional Accounts Office, as such a query was made from the petitioner. In response to the query vide Letter No. 70 dated 25.1.2008 by the Executive Engineer, Minor Irrigation Division, Dumka as well as vide Letter No. 52 dated 25.1.2008 by the Superintending Engineer, Minor Irrigation Circle, Dumka, the petitioner submitted his detailed representation on 31.1.2008 mentioning therein that the petitioner has submitted the entire 33 Measurement Books as well as bills/vouchers to the then Assistant Engineer and the said Assistant Engineer had intimated him that the entire Measurement Book, as well as bills/vouchers submitted by the petitioner, have been submitted in Divisional Office adjustment of accounts and as such the petitioner requested for account adjustment. Further, in response to the query of the Assistant Engineer Minor Irrigation Sub Division, Gopikandar, Dumka (Resp. No. 8) vide Letter No. 155 dated 29.9.2008, the petitioner submitted his detailed representation on 27.11.2008 mentioning therein that the petitioner has submitted the entire 33 Measurement Books as well as bills/vouchers to the then Assistant Engineer, Minor Irrigation Sub Division, Gopikandar Dumka time to time and lastly on 12.12.2006 enclosing the 4 token of receipt issued by the said Assistant Engineer on

12.12.2006 and as such the petitioner requested for account adjustment. Consequently, pursuant to the Order dated 29.4.2015 passed in W.P.S. No. 1765/2015 Rameshwar Saha Vrs. The State of Jharkhand, the then Assistant Engineer, Minor Irrigation Sub Division, Gopikandar, Dumka submitted his representation the Chief Engineer, Water Resources Department (Minor Irrigation), Dumka on 11.5.2015 and the said authority fixed 3 dates calling the petitioner as well as Sri Rameshwar Saha (petitioner of W.P.S. No. 1765/2015) and the petitioner appeared and submitted all the relevant documents and correspondences showing that the petitioner had submitted the entire 33 Measurement Books as well as bills/vouchers to the then Assistant Engineer, Minor Irrigation Sub Division, Gopikandar, Dumka time to time and lastly on 12.12.2006 enclosing the token of receipt issued by the said Assistant Engineer on 12.12.2006 but said Assistant Engineer namely Sri Rameshwar Saha (petitioner of W.P.S. No. 1765/2015) did not choose to appear on any date as such the Chief Engineer, Water Resources Department (Minor Irrigation), Dumka vide his Memo No.999 dated 9.10.2015 sent a report to the parent department with his opinion that in the matter the departmental proceeding against the erring officers is required giving reasonable opportunity of hearing to them. 5

#6. The petitioner pursuant to the query made by the office of the Accountant General, Jharkhand (Resp. No. 9) vide Memo No. 1258 dated 30.9.2015 sent a detailed representation to the Accountant General, Jharkhand (Resp. No. 9) on 4.5.2016 and requested for payment of Pension and Gratuity after fixation of final pension, but to no effect. The office of the Accountant General, Jharkhand (Resp. No. 9) vide Memo No. 10308 dated

11.8.2016 fixed the provisional pension of the petitioner @ Rs. 16,380/- per month w.e.f. 1.3.2014 to 31.5.2016 amounting to Rs. 9,43,323/- and adjusted Rs. 23,81,151/- and the copy of the same was sent to the petitioner. Further, the Office of the Accountant General, Bihar (Resp. No. 10) vide Memo No. 879 dated 12.9.2016, returned the aforesaid Authority Slip issued vide Memo No. 10308 dated

11.8.2016 issued from the office of the Accountant General, Jharkhand (Resp. No. 9) with a query that in the Authority Letter, it has not been directed that how the so-called adjustment of Rs.23,81,151/- is to be done. Thereafter, the office of the Accountant General, Jharkhand (Resp. No. 9) vide Memo No. 1222 datd 18.11.2016 requested the Executive Engineer, Ganga Pump Canal Division, Sahebganj (Resp. No. 6) to intimate the decision taken by the department regarding unadjusted amount of Rs. 23,81,151/- and whether the said amount is to be recovered from the petitioner or not. Thereafter, the office of the Accountant General, Jharkhand (Resp. No. 9) vide Memo No. 1611 dated 2.1.2017 6 again sent the Authority Letter to the Office of the Accountant General, Bihar (Resp. No. 10) mentioning therein that the provisional pension has been sanctioned as per Resolution No. 3014 dated 31.7.1980 issued by Bihar Govt., Finance Department and for recovery of unadjusted amount of Rs. 23,81,151/- the correspondences is being done with Finance Department and Irrigation Department. Upon which, vide Memo dated 28.2.2017 issued by the Office of the Accountant General, Bihar (Resp. No. 10), however the provisional pension was fixed in favour of the petitioner @ Rs. 16,380/- p.m. w.e.f. 1.3.2014; however, till date final pension and other retiral benefirs have not been paid to him, instead a show-cause notice under Rule- 139 of Jharkhand Pension Rules has been issued to the petitioner under Memo No. 3048 dated 17.07.2018 (Annexure- 14) with regards the proposed recovery amount of Rs.23,81,151/-.

#7. Mr. Anjani Kr. Verma, learned counsel for the petitioner submits that only with a view to put a rubber stamp on the illegal action of withholding the amount of Gratuity of the petitioner and adjusting an amount of Rs. 23,81,151/-towards the payment of due retrial benefits including Gratuity and by not fixing the final pension of the petitioner even after a lapse of more than 4 years from the date of retirement on 28.2.2014; the Respondent No. 3 vide his Memo No. 3048 dated 17.7.2018 has issued a show cause notice under Rule 139 of Jharkhand Pension Rules alleging therein that in the year 2006 during the 7 posting of the petitioner in Dumka District, the bills/vouchers for the amount of Rs. 23,81,151/- has not been submitted by the petitioner and as such it has been shown as an unadjusted amount. This Notice issued under Rule-139 is void ab-initio as the cause of action for which the chargesheet has been issued, is hit by proviso (ii) to Rule 43 (b) as no action can be taken under this Rule if the event took place beyond four years from the date of issuance of charge sheet. He contended that from bare perusal of the aforesaid show cause notice issued under Rule 139 of Jharkhand Pension Rules vide Memo No. 3048 dated 17.7.2018 (Annexure-14), it is evident that the petitioner retired on 28.2.2014 and the show cause notice under Rule 139 of Jharkhand Pension Rules has been issued on 17.7.2018 on the so-called charges of grave misconduct for the alleged offence of 2006 and not on the ground that service record of the petitioner was not thoroughly satisfactory as such it had, therefore, to be read with Rule 43 (b). Accordingly, such notice therefore, could cover any misconduct if committed within 4 years from the date on which the show cause notice was issued but as the show cause notice dated 17.7.2018 (Annexure-14) is related with the alleged misconduct of the year 2006, much prior to 4 years from the date on which the show cause notice has been issued, the respondent authority has no power to invoke Rule 139 against the petitioner as such the proceeding under Rule 139 is wholly 8 incompetent because as per the provisions as contained in the Bihar (Now Jharkhand Pension Rules), the aforesaid show cause notice issued vide Memo No. 3048 dated 17.7.2018 (Annexure-14) under Rule 139 in respect of the so called charges committed prior to the time limit under Rule 43 (b) proviso (a) (ii) (4 years prior to the date of issuance of the notice) is incompetent as the authority has no power to invoke Rule 139 against the petitioner as per the settled principles of law laid down by the Hon’ble Supreme Court of India in case of State of Bihar and Others Vrs. Mohd. Idris Ansari reported in 1995 Supp(3) SCC 56. He further submits that due to the latches of the respondents, the petitioner has been deprived of the regular pension and also an illegal recovery of Rs.23,81,151/- has been made from his gratuity and other amount. Relying upon the aforesaid grounds, Mr. Verma submits that the writ application may be allowed and consequential benefit may be given to the petitioner.

#8. Mr. M.K.Roy, learned counsel for the respondent submits that during the period 2006-08, while the petitioner was posted as Junior Engineer, Minor Irrigation Subdivision, Gopikander under Minor Irrigation Division, Dumka, there was outstanding Temporary Advance, amounting Rs.27,20,042/- in the name of Rameshwar Saha, Assistant Engineer in the divisional cash book which was further re- advanced to the petitioner and Sri Rameshwar Sharma, Junior 9 Engineer under administrative control of Assistant Engineer, Minor Irrigation Sub Division, Gopikandar. He further submits that the then Assistant Engineer, Sri Rameshwar Saha get transferred from Minor Irrigation Sub Division, Gopikandar to Master Plan, Investigating and Hydrology Circle No.02, Deoghar in the same capacity vide notification no. 2602 dated 29.06.2007 through Sl. No. 70 and the records reveal that Sri Rameshwar Saha has handed over charge of the said sub-division to his predecessor Sri Mithilesh Kumar Sinha on 12.07.2007 with following closing balance of cash book under Minor Irrigation Sub Dvision, Gopikandar. He further submits that the direction was issued to the petitioner vide letter bearing memo no.143 dated 11.02.2008 under the signature of the then Executing Engineer, Minor Irrigation Division, Dumka to explain about the whereabout of the outstanding advance Rs.23,81,151/- whether work has been executed against the said advance or not, and about the status of vouchers against the advances. The same has also been explained in the letter dated

29.02.2008 of Sri Rameshwar Saha the then Assistant Engineer that during his posting period, different schemes were executed by giving temporary advances to the concern Jr. Engineers. In this regard, disclosing the name of the petitioner, he submitted that on repeated reminders the voucher connected with work against the advances under the petitioner was not submitted before him till his posting under that division. The statement 10 goes to show that temporary advances in the name of the petitioner amounting to Rs.23,81,151/- is the effect of dereliction of duty of both the then Assistant Engineer, Sri Rameshwar Saha as well as the petitioner himself. The aforesaid advances were made to the petitioner by Sri Rameshwar Saha the then Assistant Engineer during 2006-07, but both failed to keep the standards of financial propriety as laid down in Rule-9 (1) of Bihar/Jharkhand Finance Rule incorporation of such huge advances in the divisional accounts for adjustment. He lastly submits that in view of the aforesaid facts, the instant writ application be dismissed.

#9. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits and also the specific argument of the petitioner that Notice issued to him under Rule-139 of the Rules is void ab-initio as the cause of action for which the chargesheet has been issued, is hit by proviso (ii) to Rule 43 (b) as no action can be taken under this Rule if the event took place beyond four years from the date of issuance of charge sheet.

#10. The issue with regard to the time limit for issuance of a Show-Cause Notice to a retired employee under Rule 139 of Pension Rules was dealt in detail by the Hon’ble Apex Court in the case of Mohd. Idris Ansari (supra). To decide the lis involved in this case it is necessary to refer the aforesaid judgment. For brevity Para- 6 to 10 is quoted herein below: 11 “6. Having given our anxious considerations to these rival contentions, we find that the decision of the High Court on the facts of the present case is unexceptionable. The earlier notice dated 17-7-1993 by which fresh departmental proceedings were sought to be initiated was rightly quashed by the High Court as it was based on the alleged misconduct of the respondent during 1986-87 which was more than four years prior to the issue of the said notice. Such a notice seeking to initiate fresh departmental proceedings after the retirement of the respondent, was clearly hit by the proviso to sub-rule (b) of Rule 43 of the Rules. Rule 43(b) reads as under: “(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 judicial is found Government 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: in departmental or if the pensioner Provided that — (a) such departmental proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at 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;”

#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 servant, it must be shown that in departmental 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 initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it 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.

#8. There remains the question whether any assistance can be derived by the appellant authorities from Rule 139 of the Rules. The said Rule 139 reads as under: 12 “139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. (c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed.”

#9. So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired government servant or not in the circumstances contemplated by the rule. The first circumstance is that if the service of the government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of the government servant concerned while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revisional power has to be exercised in consonance with the principles of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first time. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture:

#1. A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory.

#2. Even if the service record of the officer concerned is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct of the officer concerned during his service tenure, the State Government can exercise revisional power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond that period.

#10. So far as the second type of cases are concerned the proof of grave misconduct on the part of the government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such 13 departmental proceedings against him. In the present case, the respondent retired on 31-1-1993 and the show-cause notice was issued on the ground of grave misconduct on 27-9-1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore, to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27-9-1993 meaning thereby it should have been committed during the period from 26-9-1989 up to 31-1-1993 when the respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139(a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27-9-1993 invoking powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show-cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13-12- 1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after the expiry of four years from 1986-87, as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the show-cause notice dated 27-9-1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed. There is no order as to costs.”

#11. Thus, from the aforesaid judgment it is clear that even in the proceedings under 139 of the Rules, provision of Rule-43(b) has to be complied with. Admittedly, in the instant case the charge sheet has been served to the petitioner on 17.07.2018 though the petitioner retired from service on 28.02.2014. From bare perusal of the charge-sheet it appears that the allegation is with respect to the incident of 2006, as such, admittedly the charge sheet has not been issued as per proviso to Rule 43 B of Jharkhand Pension Rules. 14

#12. Further, from bare reading of Rule-43(b)it is crystal clear that initiation of departmental proceedings is from the date when the charge sheet has been served to the petitioner and proviso to Rule 43 B stipulates that no charge sheet can be issued after a period of four years from the date of retirement.

#13. As a matter of fact in the case of Delhi Development Authority Versus H.C. Khurana reported in (1993) 3 SCC 196 the Hon’ble Apex Court has decided the question as to what is the stage when it can be said that a departmental proceeding has been initiated. Paragraph 9 of the aforesaid judgment is quoted hereinbelow: “9. The question now, is: What is the stage, when it can be said, that „a decision has been taken to initiate disciplinary proceedings”? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him. By service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings.” Even otherwise, the explanation given in Rule 43 (b) of the Jharkhand Pension Rules clearly stipulates that departmental proceeding shall be deemed to have been instituted when the charges framed against the petitioner are 15 issued to him or, if the government servant has been placed under suspension from an earlier date, on such date. At the cost of repetition, admittedly; the petitioner was neither suspended nor was any proceeding pending, inasmuch as, Annexure 9, which is the decision of the government to initiate proceeding under 43(b), does not speak so.

#14. In view of the aforesaid admitted facts and the settled proposition of the law the impugned order as contained in Memo No. 3048 dated 17.07.2018 issued by respondent no.3 is quashed and set aside.

#15. It goes without saying that since the petitioner is a senior citizen, as such the respondents are directed to calculate the amount that will accrue since the impugned order of punishment has been quashed and set aside, and pay to the petitioner. The entire exercise shall be completed within a period of eight weeks from the date of receipt/production of a copy of this order.

#16. With the aforesaid terms, the instant writ application stands allowed. (Deepak Roshan, J.) Amardeep/ 16