Baidyanath Jha … v. 1. State of Jharkhand through Secretary, Water Resource Department, Ranchi. Under Secretary, Water Resource
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4473 of 2023 Baidyanath Jha … … Petitioner Versus 1. State of Jharkhand through Secretary, Water Resource Department, Ranchi. Under Secretary, Water Resource Department, Government of Jharkhand, Ranchi. Principal Accountant General (A&E), Jharkhand, Ranchi. State of Bihar through Additional Chief Secretary, Water Resource Department, Patna. The Additional Secretary, Water Resource Department, Govt. of Bihar, Patna. Principal Accountant General (A&E), Bihar, Patna. 2. 3. 4. 5. 6. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : Mr. Rahul Kamlesh, Advocate For the Petitioner For the Respondent-State : Mr. Devesh Krishna, SC(M)-III : For the Resp. No. 3 For the Resp. Nos. 4 to 6 : -----
Legal Reasoning
this Court in Cri. Appeal (SJ) No. 192 of 2017 on I.A. No. 2 of 2020 whereby the judgment of sentence dated 12.12.2016 passed in Special Case No. 104 of 2002 arising out of Vigilance Case No. 24 of 1987 was kept in abeyance, again a show cause notice was issued to the petitioner on 23.12.2021. Though the petitioner filed his reply, but the respondent-State of Jharkhand has issued the punishment order dated 21.10.2022 stopping 50% of pension under the garb of provisions enshrined under Rule 43(a) of the Jharkhand Pension Rules. The appeal preferred by the petitioner was also rejected vide order dated 2.6.2023 and hence, the petitioner having no efficacious and alternative remedy, has knocked the door of this Court. Arguments advanced by learned counsel for the Petitioner. 4. Mr. Rahul Kamlesh, learned counsel appearing for the petitioner submits that the very initiation of proceeding under Rule 43(a) of the Jharkhand Pension Rules and thereby forfeiting 50% of pension of the petitioner by the impugned order dated 21.10.2022, affirmed by the appellate order dated 02.06.2023, is not applicable in the present facts and circumstances of the case. Referring to the very ingredients of Rule 43(a), learned counsel submits that this Rule starts with the words ‘Future Good Conduct’ as condition for grant of pension. Learned counsel submits that the impugned order dated 21.10.2022 is totally in contravention of the Rule 43(a), inasmuch as, this Rule provides that 2 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, the offence / misconduct occurred while he was in service and not after retirement. Relying on the judgment rendered by the Patna High Court in the case of Nityanand Kumar Singh Vs. The State of Bihar & Ors. reported in 2016 (2) PLJR 315, learned counsel submits that Rule 43(a) has nothing to do with the past service or any misconduct during the course of his services, rather, it is with respect to future conduct of the pensioner. Admittedly, the petitioner has been held guilty after his retirement in a case which was already instituted during the period of his service. Hence, the provision of Rule 43(a) is not all applicable in the present facts and situation of the case. Learned counsel further 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 employee 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. Relying on this judgment, learned counsel submits that the present case is squarely covered by the judgment rendered by the Division Bench of this Court in Sharat Chandra Singh (supra). 5. Relying on the aforesaid judgment, learned counsel submits that in no case, the case of the petitioner falls within the ambit of ‘future conduct’ as mandated in Rule 43(a) of the said Rules and hence, the impugned orders withholding the 50% of pension is fit to be quashed and set aside and the respondents may be directed to extend all the pensionery benefits to the petitioner. Arguments advanced by learned counsel for the Respondents 6. Per contra, learned counsel representing the respondents opposes the contention of learned 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. Learned counsel submits that the petitioner has been made accused under the provisions of Prevention of Corruption Act in the year 3 1987. The petitioner made to retire on 31.05.2004 and after his retirement, he was convicted by the competent Court of criminal jurisdiction. Learned counsel further submits that still the appeal preferred against the judgment of conviction is pending before this Court and there is no stay order of his conviction. Learned counsel further submits that after following the due procedure of the Jharkhand Pension Rules, he was punished under the provisions of Rule 43(a) thereof. The ingredient of Rule 43(a) is very well applied in the present case of the petitioner, as the said Rule starts from the words ‘Future good conduct’. Admittedly, the conduct / offence of the petitioner came to light only upon his conviction after retirement, when he was getting pension and as per Rule 43(a), which is an implied condition for grant of pension of ‘Future good conduct’ and if the pensioner is convicted of serious crime or found guilty of grave misconduct, the Government has every power to withhold the full or part of the pension of the pensioner. 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. 7. The undisputed facts, as revealed from perusal of the entire records and after hearing the learned counsel for the parties, are that Vigilance P.S. Case No. 24/87 was registered against the petitioner while he was in service. The petitioner retired on 31.05.2004 and entire retirement benefits have been extended to him. The vigilance case was tried and the petitioner was convicted by the Criminal Court of competent jurisdiction vide judgment dated 12.12.2016. The petitioner challenged the same before this Court in Cr. Appeal (SJ) No. 192 of 2017 and he was also granted bail during pendency of the said appeal. It is also an admitted fact that the judgment of sentence was kept in abeyance by this Court, as it appears from the operative portion of the order dated 14.02.2020 passed in I.A. No. 2 of 2020 in Cr. Appeal (SJ) No. 192 of 2017. Thereafter, following the due procedure, the respondent-State awarded the impugned penalty withholding of 50% of pension to the petitioner under the provisions of Rule 43(a) of the Jharkhand Pension Rules. 8. At this juncture, the issue arises for adjudication of the case is as to whether the provision of Rule 43(a) of the Jharkhand Pension Rules is applicable in the present facts and circumstances of the case or not. It would be 4 more profitable to quote herein-below the provisions of Rule 43(a) of Jharkhand Pension Rules:- “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.” 9. From perusal of the aforesaid Rules, it is as clear as day that a pensioner who has been granted pension is expected to maintain a good conduct in future and in case a pensioner is convicted of serious crime or held guilty of grave misconduct, the Government has the power under Rule 43(a) to withhold or withdraw the pension or any part of it and its decision has been made final and conclusive. In the present case, admittedly the petitioner was convicted after retirement while he was getting pension, but for the offence committed while he was in service. 10. The issue involved in the present case fell for consideration before the Division Bench of the Patna High Court in the case of Nityanand Kumar Singh vs. State of Bihar reported in 2016 (2) PLJR 315 (Pat.), wherein in that case, petitioner Nityanand Kumar Singh was convicted after retirement for the offence committed while he was in service. It was held that Rule 43(a) of Bihar Pension Rules is not related to conduct of an employee during service or service rendered on re-employment. It has also been held that the opening sentence of Rule 43(a) provides that future good conduct will be implied condition of every grant of pension which would mean that a pensioner who has been granted pension is expected to maintain a good conduct in future and in case a pensioner is convicted of serious crime or held guilty of grave misconduct, the Government has the power under Rule 43(a) to withhold or withdraw the pension or any part of it and its decision has been made final and conclusive. It would be more profitable to quote the relevant paragraphs of the said judgment:- “Before coming to the proviso which consists of three clauses (a), (b) and (c) along with an explanation provided after clause (c), it 5 is obvious from a comparison of Rule 43(a) with Rule 43(b) that the former relates to future good conduct of a pensioner and the same may be invoked if he is convicted of serious crime or is held guilty of grave misconduct. The serious crime or grave misconduct under this provision, i.e. rule 43(a) is not related to his conduct during service and/or service rendered on reemployment. It is a conduct expected of a pensioner in future after he is granted a pension. Thus, there is clear distinction between the aim and object of Rule 43(a) and that of Rule 43(b). Both the provisions operate in different areas having different connotations. The decision under rule 43(a) is not on account of any departmental proceeding or judicial proceeding instituted when the government servant was in service or instituted later in respect of an event which related to his service rendered before retirement or on re-employment. On the other hand, the purpose of Rule 43(b) is clearly to enable the State government to continue or initiate a departmental or judicial proceeding in respect of omissions or commissions by a government servant done while he was in service. Such provision in the rules governing pension vests the State Government with necessary powers to maintain action against a retired government employee for his conduct while in service but subject to some restrictions mentioned in the proviso. The purpose of proviso is to safeguard pensioners or superannuated employees from loss of pension on account of belated disciplinary proceedings or judicial proceedings. On the other hand, the future good conduct mentioned in Rule 43(a) is good conduct expected of every government servant even after superannuation. Such future conduct is not related to his service period at all. Hence, the requirement of proviso (a) (ii) cannot apply to Rule 43(a). Such provision in the proviso puts a restriction upon the power of the State government to initiate a departmental proceeding if not instituted while the government servant was in service, either before retirement or during re- employment. Such departmental proceeding, by virtue of the provision under consideration cannot be in respect of an event which took place more than four years before the institution of such proceeding. Rule 43 (a) comes into play after retirement and applies till pensioner breathes his last. There can be no question of time limitation for exercise of such power because this Rule is not at all connected with any departmental proceeding. Rule 43(a) nowhere refers to any departmental proceeding instituted earlier or to be instituted later. Hence, it cannot be governed by proviso (a) (ii) to Rule 43(b) as it can apply only to initiation of departmental proceeding by the Government after an employee has retired.” 11. The view expressed by the Patna High Court in the case of Nityanand Kumar Singh (supra) has been reiterated before the Division Bench of this 6 Court in the case of Sharat Chandra Singh versus State of Jharkhand and others, decided in L.P.A. No. 281 of 2018. In the said case also, the employee Sharat Chandra Singh was made an accused in a vigilance case and after retirement, he was convicted. The writ petition preferred by the employee Sharat Chandra Singh was dismissed by the Writ Court on the ground since the petitioner was convicted in a criminal case, he was not entitled for pensionery benefits, as Rule 43(a) of Jharkhand Pension Rules come into play of future
Arguments
Mr. Faisal Alam, AC to SC(M)-III Mr. Sudarshan Shrivastava, Advocate Mr. Diwakar Upadhyay, Advocate 9 / 19.07.2024 Heard the learned counsel for the parties. 2. Feeling aggrieved by the order contained in Memo No. 5502 dated 21.10.2022, by which the respondent No. 2 (Under Secretary, Water Resource Department, Govt. of Jharkhand) under the purported exercise of power conferred under Rule 43(a) of the Jharkhand Pension Rules, has withheld 50% of pension, as also the order contained in Memo No. 3155 dated 2.6.2023 affirming the order of punishment by the appellate authority, the petitioner has preferred this writ petition. The Facts. 3. Briefly stated, at the relevant point of time, when the petitioner was posted as Assistant Engineer, Triveni Nahar Awar Pramandal, Narkatiyaganj in the erstwhile State of Bihar, a Vigilance P.S. Case No. 24/87 was registered on 12.08.1987 against the petitioner and others for the offence under Section 13(1) (d) and 13(2) of the Prevention of Corruption Act. The petitioner was put under suspension vide letter dated 8.4.1991 and remained under suspension till 13.10.1994. In the month of August, 1995, he was transferred to the office of 1 Chief Engineer, Water Resource Department, Ranchi where he continued to work till the date of his superannuation on 31.05.2004. After retirement, the entire benefits including pension has been extended to the petitioner. It is further case of the petitioner that the criminal case registered against the petitioner in the year 1987 was finally decided by the judgment dated 12.12.2016 and the petitioner was convicted for the said offence and sentenced to undergo rigorous imprisonment for two years with fine of Rs. 2000/-. In Cr. Appeal (SJ) No. 192 of 2017 challenging the order of conviction and sentence dated 12.12.2016, the provisional bail granted by the trial court was confirmed by order dated 06.02.2017. Thereafter, a show cause notice was issued to the petitioner on 10.12.2019 asking the petitioner as to why his entire pension be not forfeited under the provisions of Rule 43(a) of the Jharkhand Pension Rules. It is further and specific case of the petitioner that despite the order passed by
Decision
good conduct and conviction of the writ petitioner in a criminal case is a proof in itself that conduct of the writ petitioner was not good during his service tenure. However, the matter went to the Division Bench, wherein, it has been held that the petitioner has been held to be guilty after his retirement in a case which was instituted during the period of his service, Rule 43(a) does not come to play in getting the pension gratuity and other retiral benefits to the petitioner. The relevant paragraph of the said judgment is quoted as under:- “ It would be apparent from the perusal of the aforesaid judgment that the Division Bench of Patna High Court has held that Rule 43(a) has nothing to do with the past service or any misconduct of the pensioner during the course of his service, rather it is with respect to future conduct of the concerned employee and admittedly, though the petitioner has been held to be guilty after his retirement in a case which was instituted during the period of his service but the same was with respect to his conduct during the said period. Thus, we are also in respectful agreement with the decision of the Division Bench of the Patna High Court on the issue in Nityanand Kumar Singh (Supra) and thus, we hold that the Pension, Gratuity or other retiral benefits could not have been withheld by the State authorities and that too without assigning any reason, under Rule 43(a).” 12. In view of the aforesaid judgments quoted herein above, it can comfortably be held that the case of the petitioner is squarely covered by the ratios laid down as above. Herein also, the petitioner was convicted for an offence which was instituted when he was serving the Department and hence, Rule 43(a) does not apply to the present facts and circumstances of the case. 13. Resultantly, the impugned order contained in Memo No. 5502 of 21.10.2022 is hereby quashed and set aside. Consequently, the appellate order 7 contained in Memo No. 3155 dated 2.6.2023 also stands quashed. The respondents are directed to refund the recovered amount, if any, to the petitioner at the earliest, preferably within a period of eight weeks from the date of receipt of a copy of this order. 14. The writ petition stands allowed. R.Kr. (Dr. S. N. Pathak, J.) 8