The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1025 of 2019 --------- Sumitra Devi, aged about 66 years, w/o Sri Shyam Lal Yadav, resident of Mohalla-Nagma, Chatra, P.O. & P.S.-Chatra, District Chatra ..… Petitioner Versus of through Jharkhand The State 1. the Secretary/Principal Secretary, School Education and Literacy Department, having office at Project Building, Dhurwa, P.O. & P.S.-Dhurwa, Town and District- Ranchi 2. The Director, Secondary Education, School Education and Literacy Department , having office near Project Building, Dhurwa, P.O. & P.S.-Dhurwa, Town and District-Ranchi The District Superintendent of Education, 3. Hazaribagh, P.O. & P.S.-Hazaribagh, District- Hazaribagh CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD ….. Respondents ---------- For the Petitioner : Mr. Manoj Tandon, Advocate Ms. Neha Bhardwaj, Advocate For the Respondents : Mr. Nawal Kishore Pandey, A.C. to S.C.(L & C)-I --------- C.A.V. on 18.09.2024 Pronounced on 07.12.2024 This writ petition has been filed on behalf of the petitioner praying for the following reliefs: (i) To quash and set aside the order dated 30.10.2018 (i.e. Annexure-2) by Respondent No. 2, whereby the cent percent pension of the petitioner has been ordered to be withheld. 1 (ii) To direct the respondents to pay the pension to the petitioner regularly as was being paid to the petitioner before passing the impugned penalty order dated 30.10.2018 and for other ancillary reliefs:- 2. Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Nawal Kishore Pandey, learned A.C. to S.C.(L & C)-I on behalf of the State. 3. Learned counsel for the petitioner submits that the impugned order dated 30.10.2018 (i.e. Annexure-2) passed by Respondent No. 2 - The Director, Secondary Education, School Education and Literacy Department is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the impugned order is in the teeth of Rule 43 (b) of the Jharkhand Pension Rules as there is no misconduct proved and no pecuniary loss caused to the government. Further copy of the enquiry report has not been served upon the petitioner by the Disciplinary Authority. It is further submitted that the withholding the pension of the petitioner by the impugned order is barred by limitation as the pension of the petitioner was sanctioned on 27.12.2013 and the same has been withheld on 30.10.2018. 2 It is submitted that the petitioner had retired on 31.07.2013 during the Departmental proceeding and the Departmental Proceeding was converted into proceeding u/s 43(b) of the Jharkhand Pension Rules without any formal order and Notice to the petitioner. It is submitted that no show-cause Notice has been given before forfeiting 100% Pension and therefore, the impugned order is illegal, arbitrary, unconstitutional and in colourable exercise of power and, hence, the same may be set aside. 4. On the other hand, learned counsel for the State has submitted that the writ petition is not maintainable and the impugned order is fit and proper and requires no interference. It is submitted that the petitioner was initially appointed on the post of Assistant Teacher in Government High School, Chatra (Hazaribagh) by the District Inspectress of School, Hazaribagh-cum-Giridih vide Memo No. 879-82 dated 03.02.1982 without following the process of appointment. The aforesaid appointment of the petitioner was made on purely temporary basis. It is submitted that neither the District Inspectress of School advertised the post in the Local News Paper nor the name of the petitioner was forwarded by the employment exchange, nor recommended by the Select Committee and the then District Inspectress, Hazaribagh-cum-Giridih, in her 3 individual capacity appointed the petitioner as Assistant Teacher against the post of Matric Trained in Lower Subordinate Education Service. In the meantime, the teachers working in the Lower Subordinate Education Service were given promotion to Subordinate Education Service vide notification no. 445 dated 09.07.1990 and the notification clearly mentions that the salary of the promoted post of Subordinate Education Services will be given only after the approval of the Finance Department. Due to the aforesaid condition in the notification no. 445 dated 09.07.1990, delay was caused in fixation of pay by the Finance Department. Consequently the promoted teachers of the cadre of Lower Subordinate Education Service promoted to Subordinate Education Service filed a writ petition in C.W.J.C. No. 1690 of 1997 (Sushma Kumari Gope and Others Vs. The State of Bihar and Others), in which a counter affidavit was filed by the Director, Primary Education, Bihar stating therein that in between the year 1980-88, a number of female teachers have been appointed and granted illegal promotion in Subordinate Education Service Cadre
Legal Reasoning
Post and then Hon’ble Patna High Court passed order to enquire the matter by the Ministerial Vigilance Department and as such the Department of Secondary Education, Bihar, Patna handed over the enquiry of around 300 illegal and irregular appointment of 4 teacher working in Lower Education Service and promoted to Subordinate Education Service. It is submitted that a similar writ petition, being C.W.J.C. No. 9847/1998 (Barjesh Kumar and others -Vs- State of Bihar and Others) was filed before the Hon’ble Patna High Court challenging the appointment of the teachers in Government Girls Middle School and the Hon’ble Patna High Court passed order for C.B.I. Enquiry into the matter. After completion of investigation, the C.B.I. submitted investigation report in the year 2005 to the Department of Home, Government of Bihar vide letter no. 3371 dated 12.04.2005 and in the said report a list of 304 teachers were submitted. It is submitted that during the aforesaid period the services of 48 illegally appointed teachers came under the territorial jurisdiction of the Jharkhand State, after its creation in the year 2000. On receipt of the report submitted by the C.B.I. (Annexure-A to the Counter Affidavit dated 07.10.2020), it was communicated by the Director, Secondary Education, Bihar, Patna to the Director Secondary Education, Jharkhand vide letter no. 2688 dated 18.12.2007 along with the list of name of 48 illegally appointed teachers. As per the finding of the C.B.I. Enquiry, the appointment of the petitioner was found completely irregular as she was over-aged by nine months at the 5 time of her appointment by the District Inspectress of Schools, Hazaribagh-cum-Giridih. The said report clearly mentions that the petitioner was appointed without following the procedure for appointment. It also mentions that her appointment was made without Select Committee proceeding and without any interview or Test. It is also pointed out that the post of the petitioner was not advertised in any local news papers and District Inspectress was not competent to appoint teachers as it was State Cadre Post and further no roster clearance of the vacancies was advertised and obtained and reservation rules were also not followed. It is further submitted that on receipt of the aforesaid report, departmental proceeding was initiated and notices were issued to the petitioner vide Memo No. 1173 dated 30.04.2011 (i.e. Annexure-B). On the basis of the investigation report of C.B.I., enquiry was conducted and vide Memo No.1197 dated 30.04.2011 (i.e. Annexure-C), the petitioner was put under departmental proceeding and the Regional Deputy Director of Education, North Chhotanagpur Division was made the Enquiry Officer. It is submitted that the petitioner submitted her reply to the charges before the Enquiry Officer-cum-Regional Deputy Director of Education, Chhotanagpur Division, Hazaribag and on completion of enquiry the charges made against the petitioner 6 were found true and a report to this effect was submitted vide Letter No. 1147 dated 19.08.2011 (i.e. Annexure-D) to the Director of Education Jharkhand, Ranchi. Since the show-cause reply of the petitioner was found to be unsatisfactory, a second show cause notice was also issued to her vide memo no. 1139 dated 03.05.2012 but the same was also found unsatisfactory and consequently the same was rejected. It is submitted that considering the aforesaid facts including the C.B.I. Investigation Report, show cause reply of the petitioner and the Departmental Enquiry Report submitted by the Regional Deputy Directory of Education, North Chhotanagpur Division, it has been found that the petitioner was appointed not by a competent authority, no advertisement was published in the local news paper, no roster clearance was obtained, the Reservation policy was also not followed and she was over-aged and as such her appointment was ab-intio illegal and wrong. It is submitted that on the basis of aforesaid facts arising out of the appointment, the petitioner has rightly been awarded punishment of withholding of cent percent pension in terms of the provision made in Rule 43(a) and 43(b) of the 7 Jharkhand Pension Rules vide memo no. 2990 dated 30.10.2018. It is submitted with regard to statement made in the writ petition that the pension of the petitioner was sanctioned way back in the year 2013 and it was in the year 2018 that the impugned order dated 30.10.2018 was passed withholding 100% Pension, that the pension of the petitioner was sanctioned without taking into consideration the report submitted by the C.B.I. in which the
Decision
appointment of the writ petitioner was found ab-initio illegal and therefore by the impugned order dated 30.10.2018, cent percent of pension was withheld in exercise of Rule 43 (a) and 43(b) of the Jharkhand Pension Rules. It is submitted that the impugned order is just and proper and has been passed in the light of the C.B.I. enquiry made in compliance of the order passed by the Hon’ble High Court of Patna, hence this Writ Petition may be dismissed. 5. Perused the record and considered the submission of both the sides. 6. It transpires that the petitioner was appointed on the post of Assistant Teacher on 03.04.1982 and was posted in Government Girls Middle School, Chatra. The appointment was made in the pay scale of Rs. 580-860 by office order contained in Memo. No.879/82 dated 03.04.1982, issued under 8 the pen and signature of the then District School Inspectress. The petitioner was granted promotion also by notification dated 17.05.1990 to the scale of Rs. 1500-2750. The name of the petitioner appears at Sr. No.88. The petitioner was then posted as Lecturer in Women Teachers Training Collage, Hazaribag, after grant of such promotion to Sub-ordinate Education Services (Female Branch). 7. It transpires that the petitioner thereafter, retired from the post of Lecturer, Women Teachers Training Collage, Hazaribag on 31.07.2013 and the pension of the petitioner was sanctioned on 27.12.2013 (i.e. Annexure-1), which is evident from the Pension Memo No.PR-4/ 2081312506/ R/1600/2013-14/23622 and the petitioner started receiving the same. 8. However, by the impugned order contained in memo no.06/R.V.01-17/2018/2990 dated 30.10.2018 (i.e. Annexure-2 to the writ petition), the entire pension of the petitioner has been withheld in purported exercise of power under Rule 43(a) and 43(b) of the Jharkhand Pension Rules, as would be evident from the order dated 30.10.2018 passed by Respondent No.2. 9. It further transpires that the facts which are mentioned in the enquiry report are that the CBI submitted report in the year 2005 against 304 teachers, out of which 48 Assistant Teachers were 9 working under the jurisdiction of the Jharkhand State and the Director, Secondary Education, Patna, Bihar, by Letter No. 2688 dated 18.07.2007 provided the list of teachers to the Respondent No.2. 10. It further transpires that the petitioner was put under departmental proceeding by Memo No.1197 dated 30.04.2011 and a report was submitted by letter No.1147 dated 19.08.2011 and the petitioner retired on 31.07.2013. 11. It is evident from the Pension Intimation Memo dated 27.12.2013 (i.e. Annexure-1) issued from the Office of the Principal Accountant General (A&E), Jharkhand, Ranchi, addressed to the District Treasury Officer, Chatra, that vide the said Pension Intimation memo, the Pension Payment Order, i.e. P.P.O. No. 111319800 issued in favour of the petitioner was forwarded to the District Treasury Officer with a request for payment of pension to the petitioner. 12. It further transpires that a second show-cause notice was issued to the petitioner vide memo No. 1139 dated 03.05.2012 which was received by her on 23.07.2012; and thereafter cent percent pension of the petitioner was withheld vide the impugned order dated 30.10.2018. 13. Learned counsel for the petitioner has submitted that the petitioner has not been served the C.B.I. enquiry report, departmental enquiry report and 10 the documents, which are the basis of the C.B.I. enquiry report and departmental enquiry report with respect to the allegations made and although the learned counsel for the respondents contended that the C.B.I. report etc. have been served upon the petitioner, but this contention cannot be believed as the respondents have to prove the actual service of enquiry report and C.B.I. report and the related documents upon the petitioner and in absence of proof of service of C.B.I. report and Enquiry report by the State it can be presumed that C.B.I. report has not been served upon the petitioner by the respondents and therefore, it is evident that the impugned order dated 30.10.2018 has been passed in violation of the well settled law laid down in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 that the decision in a Departmental Proceeding is not good without supplying the delinquent the material which are the basis for such decision. 14. It has been held by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727, at Para 61, 62 and 63 as follows: “Para 61:- It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled 11 law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both. Para 62:- Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee’s recommendations and it is not a material unless is used by the disciplinary authority. Therefore, the need for its supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had it 12 strong reliance on Suresh (L&S) 374] and Union of opportunity at the inquiry. In support thereof he Koshy placed George v. University of Kerala [(1969) 1 SCR 317 : AIR 1969 SC 198] ; Shadi Lal Gupta v. State of Punjab [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] ; Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi [(1973) 1 SCC 805 : AIR 1973 SC 1260] ; Satyavir Singh v. Union of India [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ; Secretary, Central Board of Excise & Customs v. K.S. Mahalingam [(1986) 3 SCC 35 : 1986 SCC India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed they are controverted and acceptable unless vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] renders inquiry against no assistance. malpractice at an examination conducted by the University under executive instruction. Therein the students were given an opportunity of hearing and they were supplied with all the material, the foundation for the report. The observations of the Bench of two Judges with regard to the theory of two stages in the Inquiry under Article 311 also bears little importance for the foregoing consideration in this case. It is already seen that this Court held that the inquiry from the stage of charge-sheet till the stage of punishment is a continuous one and cannot be split into in Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380 : (1973) 3 SCR 22] is also of no avail. Therein it was pointed out that under Section 18-A of the I.D.R. Act there was no is only an two. The reliance It 13 scope of enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken. In Shadi Lal case [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules did not provide for the supply of copy of the report of an inquiry conducted by the fact finding authority before inquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a strait-jacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation of the principles of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance on S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] in Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio renders no assistance in the light of the above discussion. Since Mahalingam case [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] which was after the Forty- second Amendment Act, the need to supply second show-cause notice was dispensed with, regarding punishment and therefore, that ratio renders no assistance to the case. Hira Nath Misra case [(1973) 1 SCC 805 : AIR 1973 SC 1260] also is of no avail since to inquiry was conducted misbehaviour with the girl students by the erring boys. The security of the girls was of paramount consideration and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardise their safety and so was withheld. Accordingly this Court on the fact situation relating the 14 inquiry upheld the action of the Medical College. Satyavir Singh [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ratio also is of no assistance as the action was taken under proviso to Article 311(2) and into Rule 199 of the CCA Rules. The insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [(1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311(2) and unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice. Para 63: The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which Forty- second Amendment Act had advisedly avoided. So while interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the Forty- second Amendment Act the delinquent had no right of hearing before disciplinary authority either on proof of charge or penalty. So after Forty-second Amendment Act it would not be put on higher pedestal. The Gujarat High Court’s decision is, therefore, not good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave 15 to graded power and authority to the disciplinary the penalties impose either of authority enumerated in the relevant provisions. It is not necessarily the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the impose pros and cons, consider the case and appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as its parameters of court of appeal, but within supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him.” 15. It further transpires that apart from the fact that the petitioner was not provided the documents, such as C.B.I. report and the documents which are the basis of the departmental enquiry, it is very much evident on perusal of the departmental enquiry report itself that the competent authority with respect to the appointment was never examined in the so-called departmental proceeding and the impugned order has been passed mainly on the basis of the C.B.I. report, which is in contravention of the law settled in the case of Roop Singh 16 Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570 and State of Jharkhand and Ors. Versus Amar Kumar Sinha (vide order dated 13.03.2023 passed in L.P.A. No. 212 of 2021 by the Hon’ble Division Bench of this Court). 16. It has been held in the case of Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 570, at Para No. 14 and 15 as follows:- “Para 14:- Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. Para 15:- We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on 17 record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.” 17. It has been held in the case of State of Jharkhand and Ors. Versus Amar Kumar Sinha passed in L.P.A. No. 212 of 2021 vide order dated 13.03.2023 passed by the Hon’ble Division Bench of this Court, at para- 8 and 9 as follows:- “Para-8:- In the case of Roop Singh Negi Vs Punjab National Bank and another, (2009) 2 SCC 570, the Hon’ble Supreme Court has also examined a similar question and held that indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the documents. Reliance, inter alia, was placed by the enquiry officer on the F.I.R. which could not have been treated as evidence. 18 Para-9:- In the aforesaid reported judgment, the Hon’ble Supreme Court also intervened in the matter. In the present case, it is seen that no witness was examined, only certain documents purported to be a report, prepared by the Chief Engineer, CDO, was produced before the enquiry officer, he accepted the same and passed the final order. The enquiry made by an officer of the department, prior to the initiation of a departmental enquiry is in the nature of a preliminary enquiry. In such cases, a copy of the preliminary enquiry should be handed over to the petitioner and the evidence that led to preparation of the preliminary enquiry and the conclusion arrived thereon, has to be produced before the enquiring officer, who should apply his mind and come to the conclusion, whether such conclusion of the preliminary enquiry report is correct or not. While doing so, he should also afford a reasonable opportunity of cross-examining the witnesses, produced before the enquiring officer to prove the charges and also allow him to pass rebuttal evidence. In this case, nothing has been done, thus, there has been a clear violation of the principles of natural justice.” 18. The above judgment reported in Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570 has been followed by the Hon’ble Supreme Court in the case of United Bank of India Versus Biswanath Bhattacharjee reported in (2022) 13 SCC 329 and also in Delhi Transport Corporation Versus Ashok Kumar Sharma reported in (2024) SCC OnLine SC 1871. 19 19. It has been held in Delhi Transport Corporation Versus Ashok Kumar Sharma reported in (2024) SCC OnLine SC 1871 at Paragraph No. 20 as follows:- “Para 20:- This Court in the case of Roop Singh Negi Versus Punjab National Bank categorically held that even in a case of ex parte enquiry, it is essential that the department must lead evidence of witnesses to bring home the charges levelled against the delinquent employee.” 20. It is evident on perusal of the impugned order that there is no misconduct alleged against this petitioner. This petitioner has discharged more than 31 years of her services and it is not even alleged that this petitioner has caused any pecuniary loss to the government of a single penny and therefore, the impugned penalty order cannot be sustained at all in the eye of law as neither there is any misconduct proved nor there is any pecuniary loss caused to the Government. 21. It further transpires that the impugned order is in the teeth of and absolutely without jurisdiction in terms of Rule 43(b) of the Jharkhand Pension Rules, which provides the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period if the petitioner is found in departmental or judicial proceedings to have been guilty of grave misconduct; or to have 20 caused pecuniary loss to Government by misconduct or negligence, during his service and therefore, in view of the fact that in the present case the petitioner have never been found guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service admittedly as per the impugned order itself and therefore, the impugned order passed under the provisions enshrined in Rules 43 (a) and 43 (b) cannot be sustained in the eye of law. 22. Moreover, even no Notice was issued to the petitioner for forfeiting 100% pension before passing the impugned order dated 30.10.2018 by the Respondent Authorities and it is further evident that in the case of the petitioner, the proceeding under Rule 43(b) of Jharkhand Pension Rules was neither instituted with the sanction of the State Government, which are in contravention of the Rule 43 (b) of the Jharkhand Pension Rules. 23. For the sake of convenience, Rule 43 (a), 43 (b) of the Jharkhand Pension Rules is quoted as follows: “Rule 43 (a):- Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve 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 21 withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. Rule 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 the Government if the petitioner is found in departmental or judicial 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: 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 22 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 petitioner 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 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 civil court.” 24. Rule 43 (c) of the Jharkhand Pension (Amendment) Rules, 2018 notified vide notification dated 23.07.2018 reads as follows: >kj[k.M isa’ku fu;ekoyh&2000 ds fu;e&43 ds vUrxZr fuEufyf[kr dks mi&fu;e …x‰ ds :i esa var%LFkkfir fd;k tkrk gS%& 23 ^^…x‰ foHkkxh; vFkok U;kf;d dk;Zokgh] tks fdlh ljdkjh lsod vFkok tks vfuok;Z lsokfuo‘f(cid:217)k dh mez izkIr dj pqds lsokfuo‘r ljdkjh lsod ij ’kq: gS vFkok pykbZ tk jgh gks] mlds lsokfuo‘f(cid:217)k frfFk ls foHkkxh;@U;kf;d dk;Zokgh ds vkyksd esa vkns’k fuxZr gksus dh frfFk rd] vkSicaf/kd isa’ku dk Hkqxrku fd;k tk,xk] tks lsokfuo`fÙk ds le; vuqekU; vf/kdre isa’ku vFkok ;fn ljdkjh lsod lsokfuo`fÙk ds le; fuyacu ij gks rks fuyacu ds iwoZ vuqekU; vf/kdre isa’ku ls vf/kd ugha gksA foHkkxh;@U;kf;d dk;Zokgh ds vkyksd esa vafre vkns’k fuxZr gksus rd minku ;k e‘R;q lg lsokfuo‘f(cid:217)k minku dk Hkqxrku ugha fd;k tk,xkA** 25. Further, It is well settled in the case of State of Bihar v. Mohd. Idris Ansari, reported in 1995 Supp (3) SCC 56 that power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant only when it is shown in departmental proceedings that 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 26. It has been held in the case of State of Bihar v. Mohd. Idris Ansari, reported in 1995 Supp (3) SCC 56 at Para 6 and 7 as follows:- Para 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 24 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: further reserve “(b) The State Government 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 proceedings to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service re- employment after retirement: Provided that — including service rendered on (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;” it must be shown Para 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, 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 that 25 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.” 27. It further transpires that withholding /revising the pension of the petitioner by the impugned order is barred by limitation as the pension of the petitioner was sanctioned on 27.12.2013 but the same has been revised / withheld on 30.10.2018 without giving her any Notice to show cause before withholding it, which is in contravention of the provisions of Rule 139 (c) of the Jharkhand Pension Rules. 28. As per Rule 139 (c), though The State Government reserve to themselves the power of revising an order relating to pension passed by subordinate authorities under their control, but no such power shall be exercised without giving the 26 pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension and after the expiry of three years from the date of the order sanctioning the pension was first passed and in the present case pension of the petitioner was sanctioned in the year 2013, which was withheld in the year 2018 vide the impugned order, i.e. after almost five years, that too 100 % of her pension was withheld without giving her a Notice, which is bad in law. 29. For the sake of brevity, Rule 139 of the Jharkhand Pension Rules is quoted as follows: “139 (a) The full pension admissible under the rules is not to be given as a matter of course, of 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 power 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 27 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.” 30. It has been held in the case of State of Bihar v. Mohd. Idris Ansari, reported in 1995 Supp (3) SCC 56 at Paragraph No.s 8, 9 and10 as follows:- “Para 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: “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.” Para 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 28 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. ” 31. Further, it transpires that even while passing the impugned Order dated 30.10.2018, no formal order was drawn for converting the Departmental Proceeding into a proceeding under Section 43 (b) of the Jharkhand Pension Rules and as the petitioner has already superannuated on 29 31.07.2017 and now there is no relationship of Employer and Employee between the Department and the petitioner and hence, it was incumbent upon the Respondent Authorities to convert the Departmental proceedings under Section 43 (b) of the Jharkhand Pension Rules before passing the order of punishment by issuing a formal order and in absence of which the entire proceeding stands vitiated. 32. It has been held in the case of State Bank of India & Ors. Versus Navin Kumar Sinha reported in (2024) SCC OnLine SC 3369 at Para 31 and 32 as follows:- “Para 31:- As has been held by this Court on more than one occasion, a subsisting disciplinary proceeding i.e. one initiated before superannuation of the delinquent officer may be continued post superannuation by creating a legal fiction of continuance of service of the delinquent officer for the purpose of conclusion of the disciplinary proceeding (I this case as per Rule 19(3) of the Service Rules). But no disciplinary proceeding can be initiated after the delinquent employee or officer retires from service on attaining the age of superannuation or after the extended period of service. Para 32:- Even in the case of C.B. Dhall (supra) relied upon by the appellants, this Court while considering the purport of Rule 20B of the State Bank of India (Supervising Staff) Service Rules, 1975 held that under Rule 20B disciplinary proceeding, if initiated against an employee before he retires from service, could be continued and concluded even after his retirement and for the purpose of 30 conclusion of the disciplinary proceeding, the employee is deemed to have continued in service but for no other purpose.” 33. It has been held in the case of Jagdish Prasad Singh versus State of Bihar and Others reported in (2024) SCC OnLine SC 1909, at Para- 20,23,24,25 and 26 as follows:- “Para-20:- Without prejudice to the above findings, we are of the view that no departmental action could have been initiated by the State against the appellant after eight years following his superannuation because the employer employee relationship had come to an end after the appellant’s superannuation. The order directing reduction in pay scale and recovery from the appellant was manifestly not preceded by any show cause notice and was thus, passed in gross violation of the principles of natural justice. Pursuant to the order dated 20th July, 2009 passed in the Writ Petition No. 6714 of 2009 filed by the appellant, he submitted a representation to the Secretary, Food and Consumer Protection Department, Government of Bihar, which vide order dated 8th October, 2009 was rejected, preceded by a personal hearing. A perusal of the said order would indicate that the Secretary took a view that as per paragraph 11 (supra) of the Government Resolution, the first/second time bound promotion of the appellant had come to an end automatically w.e.f. on 1st January, 1996 and thus, the appellant was required to be redesignated to the post of Marketing Officer and would be entitled to the revised pay of Rs. 5500-9000 w.e.f. 1st January, 1996 as 31 recommended by the Fitment Committee. Thus, even in this order, the promotion conferred to the appellant to the post of ADSO on 10th March, 1991 is not doubted. Para-23:- In the case of State of Punjab v. Rafiq Masih (White Washer)3, this Court held as under : - “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v.) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, 32 as would far outweigh the equitable balance of the employer's right to recover.” (emphasis supplied) Para-24:- Recently, this Court in Thomas Daniel v. State of Kerala4, held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years. Para-25:- The Government Resolution dated 8th February, 1999 to be specific, the highlighted portion supra is amenable to the interpretation that it protects the status and pay of those employees who had received their time bound promotions prior to 31st December, 1995. As a consequence, the Secretary concerned, while rejecting the representation clearly misinterpreted and misapplied the said Resolution to the detriment of the appellant. Para-26:- The learned Single Judge as well as the Division Bench of the High Court of Patna also seem to have fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularly, because he had been promoted as an ADSO, while drawing the pay scale of Rs. 6500-10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of the excess amount is grossly 33 arbitrary and illegal and also suffers from the vice of non- adherence to the principles of natural justice and hence, the same cannot be sustained. 34. Even the Patna High Court has decided in Kamini Kumari versus The State of Bihar and Others, vide Order dated 27.02.2024, passed in LPA 1219 of 2023 and others in favour of the cases of those persons, who are similarly situated with the writ petitioners and who were also appointed by the District Inspectress of School some time in the year 1988-89 and who had also faced enquiry in the light of the Order dated 18.12.1998 passed in C.W.J.C. No. 9847 of 1998 (Brajesh Kumar Singh Versus State of Bihar and Ors.) 35. It has been held in the case of Kamini Kumari versus The State of Bihar and Others in LPA No. 1219 of 2023 and others, which was allowed on 27.02.2024, at Para-16, 17, 19, 20, 21, 23, 30, 31, 40, 41, 42, 43, 44, 45 and 46 as follows:- “Para-16:- One of the main grounds raised against the aforesaid proceedings, is violation of Rule 43 (b) of Bihar Pension Rules, 1950. Rule 43(b) reserves the right of the State Government to withhold or withdraw the pension or any part of it, whether permanently or for a specified period along with right of ordering the recovery from a pension, of any pecuniary loss caused to the Government. When the pensioner is found to be guilty of grave misconduct or caused pecuniary loss to the Government by misconduct or negligence, the proviso to the rule kicks in. The proviso prescribes that if proceedings are not instituted when the government servant is on duty, then it shall not be instituted without the sanction of the State Government. It is also provided that such inquiry shall 34 only be in respect of an event which took place not more than four years before the institution of such proceedings. Both these mandatory requirements, one of sanction, and the other, of an absolution for any incident prior to four years prior to retirement, are not complied with, is the compelling argument. illegal. The allegation Para-17:- Admittedly, there is no sanction issued by the State Government and the illegal appointments alleged are far prior to the retirement; more than three decades before retirement, which recruitment and appointment are termed the individual teachers, is of the appointment itself being vitiated for illegality. In this context, we have to notice that earlier there was a proceeding initiated before retirement which culminated, in this Court interfering with the penalty imposed at least in the case of certain teachers against whom the CBI adversely reported. raised against Para-19:- The appointment by Annexure-5 was confirmed by the Inspectoress of Schools-cum-Deputy Director of Education, Bihar as per Annexure-6 dated 20.10.1981. The extracts of the service book of the petitioner produced as Annexure-7, Annexure-8 and Annexure-9 evidences her promotion to the Subordinate Education Services as Lecturer with effect from 17.05.1990, her pay fixation thereat and her further promotion to the Bihar Education Services on 11.04.2013. Annexure-10 and 11 are again the orders granting her the first financial progression in service and her pay fixation. Para-20:- Annexure-12 indicates her retirement on 31.01.2016, later to which, Annexure-13 show-cause notice dated 29.05.2019 was issued. In the show-cause, a memo of charges dated 13.10.2016 and a reminder to show-cause notice dated 17.01.2017 were referred to; which the petitioner/appellant submits was never issued to her. Immediately, we also have to notice that the memo of charges, in any event, was after the retirement, almost 10 months after superannuation. Even after the issuance of notice under Annexure-13, the Department kept mum till Annexure-17 reminder was issued on 26.02.2021, wherein the memo of charges (Annexure-18) and the CBI 35 report (Annexure-19) based on which the accusation was raised, was issued to the petitioner. Annexure-21, is the final order withholding 100% of the pension under Rule 139 (c) of the Bihar Pension Rules. Para-21:- It is on the above facts that the grounds raised of violation of Rule 43(b) has to be considered. We have already noticed rule 43(b) which goes to the root of initiation of proceedings since the grounds raised are that, no sanction was obtained from the Government and further that the incident on which the allegation is raised occurred at the initial appointment of the petitioner, that is more than 3 ‰ decades back. Para-23:- In understanding the rigor of Rule 43(b) & 139(c) we need only refer to the decision of the Hon’ble Supreme Court in State of Bihar v. Md. Idris Ansari 1995 Supp 3 SCC 6. Paragraph 7 of the said judgment is extracted herein below:- that it must be shown Para-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, 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 is 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 36 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. The above extract clearly interprets the provision under Rule 43(a) and (b) succinctly. In the present case, there is clear violation of Rule 43(b); in that no sanction is produced on the part of the Government for the inquiry initiated after retirement. The incident based on which the allegation is raised also relates back to the year 1980, when even the memo of charges, deemed as the first initiation of proceedings was dated 13.10.2016. In this context, we also have to reiterate that the CBI inquiry in 1998, the report was before the was ordered Government in 2004, and proceedings were taken far later to that. Again, the action was based on a direction issued by this Court in a public interest litigation, which specifically directed that any proceedings taken would be in accordance with law. It was made clear that no termination of teachers shall take place pursuant to the notice of the CBI inquiry and without following due process of law, hence there cannot be a digression from the procedure stipulated under the Bihar Pension Rules to proceed against the retired employees of the Government. Para-30:- Initiation of proceedings occurred by memo of charges dated 27.10.2018 against the two petitioners produced respectively as Annexure-19 and 20. The orders of the Deputy Regional Director, Munger Division, under Rule 43(b) and 139(c) of the Bihar Pension Rules issued, subsequent to the disposal of the writ petition are produced respectively as Annexure-P4 and P5 both dated 21.11.2023. The interpretation of Rules 43(b) and 139 of the Bihar Pension Rules squarely applies in the above case also. 37 Para-31:- We have to notice the Explanation to Rule 43 which saves the application of the requirement, as per the proviso to the Rules for sanction or for the misconduct to be one committed within four years prior to retirement. The Explanation deems valid, any disciplinary proceeding instituted by framing of charges or by putting the Government servant under suspension, from an earlier date, as properly instituted from that earlier date. The appellants were not suspended before retirement. Though, disciplinary proceedings were initiated prior to retirement, the punishment imposed was set aside. De novo proceedings were permitted but despite opportunity so to do prior to retirement was available, no such proceedings were initiated till their retirement. The subsequent proceedings initiated hence, had to comply with the proviso to Rule 43(b). The proceedings are found to be the order of initiated and hence, punishment also is liable to be set aside. illegally Para-40:- Now, we come to LPA No. 1249 of 2023 arising out of CWJC No. 20610 of 2021. The petitioner was appointed as an Assistant Teacher on 07.02.1981 and retired on 13.11.2019. The allegation against her in the CBI report produced as Annexure-20, was that she was only having a diploma in teaching course, the course period being two months; in the place of BTC of two years duration; which later qualification was the minimum required. It was also alleged that she was not appointed after a proper procedure and that her appointment was without roster clearance and without following the reservation protocol. The first memo of charge was issued on 28.08.2017. The petitioner retired on 30.09.2019 and even after that the departmental proceeding initiated against her was continued and the inquiry report at Annexure-32 was forwarded to the petitioner for her explanation by Annexure-33 which was submitted by Annexure-34. By Annexure-35 the petitioner’s 100 per cent pension was withheld. In her case there was no requirement of a sanction since the inquiry was initiated prior to retirement, but continuance of the same is not permissible since the appointment, which was the basis 38 of the allegation was three decades back. There is also no valid ground to invoke Section 139(c). Para-41:- We cannot but deprecate the manner in which the inquiry proceedings were initiated by the State Government. True there was a CBI inquiry initiated in the PIL, in the course of which the petitioners were not at all examined or given an opportunity to put up their defence. The report of the CBI was filed in the year 2004 when all the petitioners were in service. Even then if a disciplinary proceeding had been taken, it would have been grossly delayed since the appointments were made in 1980’s. We cannot but refer to the decisions of the Hon’ble Supreme Court passed in Civil Appeal No. 1328 of 1995 Union of India Vs. Kishori Lal Bablanireported in AIR 1999 SC 517 and P. V. Mahadevan Vs. M.D. Tamilnadu Housing Board reported in AIR 2006 SC 207. In Kishori Lal Bablani (supra), the ground raised by the appellants that in a writ petition filed in the year 1985, appointments made as far back as in the year 1974 ought not to have been disturbed was accepted. In the case of P. V. Mahadevan (supra) there was delay of 12 years initiating disciplinary proceedings, upon which the charge memo itself was set aside. Here, the appointments made in the CBI were continued for long and even after a CBI report was submitted to the Court; the further action took another 14 years, i.e. commenced in 2016. With respect to the appeals first considered, it was again much later. We also have to observe that in the inquiry conducted, no witnesses were examined. The CBI report relied on was also not marked and proved through an officer who conducted the investigation. in reports submitted Para-42:- At the risk of repetition, it has to be stated that the appointments made in the year 1981, 1988 and 1989 were subjected to a CBI inquiry, the report of which was filed in the year 2004. Apparently no FIR was lodged and the State the Government, without any further action. It was long after, in the year 2016 that a Public Interest Litigation motivated the State Government into taking action. The order in the PIL only directed the State Government to take proceedings in accordance with law. We have found remained with 39 that the State Government had flouted all principles of fairness in disciplinary inquiry and also violated the specific rules of procedure as brought out under Article 309 of the Constitution of India. Para-43:- Less said the better about the manner in which the inquiry was conducted. The memo of charges only contained the extract of the CBI report pointing out the alleged irregularity, as against the appointment of the individual petitioners. There was none examined at the inquiry nor documents marked. The extract of the CBI report could have been marked and proved only by the person who prepared the report or another officer of the CBI, who could depose on the basis of the records. This procedure was not followed and the inquiry officer did not independently consider the irregularity in appointment alleged. Para-44:- On how a valid disciplinary inquiry, a quasi- judicial proceeding is to be conducted, we have to refer to Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 270. We extract para 14 of the said decision, which applied on all fours:- Para-14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. Para-45:- We have also noticed that the irregularity of roster clearance having not been obtained and the reservation rules not being followed were not treated as a ground to find irregularity in the appointments, in many 40 individual cases. Insofar as the contention of over age is concerned, the petitioner who was accused with that, has demonstrated that it is otherwise. Para-46:- On the reasoning above, we reverse the judgment of the learned Single Judge by allowing the appeals and allow the writ petitions setting aside the impugned orders. The orders set aside are those in which the punishments have been imposed, produced in the writ petition or by way of interlocutory application. These produced in the appeals, passed while they were pending also are set aside.” 36. From perusal of the impugned order dated 30.10.2018, it appears that the appointment of petitioner was held irregular vide said impugned order on the ground that the petitioner could not produce any evidence with respect to fulfilment of the pre- conditions of such appointment, i.e. advertisement in the newspapers, roster clearance, reservation policy etc. at the time of her appointment, which is in contravention of the law laid down in Tajvir Singh Sodhi v. State (UT of J&K), reported in 2023 SCC OnLine SC 344, in which it is held that the burden of establishing mala fides is heavily on the person who alleges it and the allegations of mala fides are more than often easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility, and in the present case it was the respondents who made allegations against the petitioner regarding such non-fulfilment of aforesaid pre-conditions for appointment at time of her 41 appointment, but they not only have not produced any evidence to prove such allegation, but also demanded such evidence from the petitioner. 37. It has been held in the case of Tajvir Singh Sodhi v. State (UT of J&K), reported in 2023 SCC OnLine SC 344 at Para 25 as follows:- “Para 25:- It was contended that this Court in the context of non-availability of any part of selection records has, in Trivedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corporation, (2007) 8 SCC 644 (Trivedi Himanshu Ghanshyambhai) held that only because the records could not be produced in view of the fact that they were not available, no inference as to mala fides can be drawn against the members of a Selection Committee and the selection cannot be cancelled. In this regard it was submitted that the impugned judgment and the judgment of the Single Judge, setting aside the entire selection of the appellants herein due to the non-availability of individual award rolls, despite, signed approval of the final Select List by the Board, is contrary to law. That the burden of establishing mala fides is heavily on the person who alleges it and the allegations of mala fides are more than often easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility, vide Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579; State of Bihar v. P.P. Sharma, (1992 Supp (1) SCC 222); Ajit Kumar Nag v. Indian Oil Corporation Ltd., (2005) 7 SCC 764; Union of India v. Ashok Kumar, (2005) 8 SCC 760.” 42 38. From record it appears that the petitioner was appointed long back, i.e. on 03.04.1982 and the departmental proceeding was initiated against him on 30.04.2011, i.e. after a lapse of almost 29 years, which is in contravention of the law laid down by the Hon’ble Supreme Court in Buddhi Nath Chaudhary v. Abahi Kumar, reported in (2001) 3 SCC 328, whereby, the Hon’ble Supreme Court has held that the appointment made long back pursuant to a selection need not be disturbed. 39. It has been held by the Hon’ble Supreme Court in Buddhi Nath Chaudhary v. Abahi Kumar, reported in (2001) 3 SCC 328, at Paragraph 6 as follows:- “Para 6:- The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results. Since we are disposing of these matters on equitable consideration, the learned counsel for the contesting respondents submitted that their cases for appointment should also be considered. It is not clear whether there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the selected candidates are displaced, the cases of the contesting respondents cannot be considered. We think that such 43 adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for a long period, but the contesting respondents do not come in that class. The effect of our conclusion is that appointments made long back pursuant to a selection need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup v. State of Haryana; District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Deviand H.C. Puttaswamy v. Hon’ble Chief Justice of Karnataka High Court, Bangalore. Therefore, we must let the matters lie where they are.” (Emphasis supplied) 40. It is pertinent to mention here that this Court finds that recovery, if made from the retiral benefits etc. including pension, if already paid to the petitioner, will be iniquitous and harsh in view of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334. 41. It has been held by the Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334 at Para 18 as follows: Para 18:- It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein 44 recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” (Emphasis supplied) 42. It further appears that before passing the impugned order dated 30.10.2018 in the present case the matter was never referred to the Jharkhand Public Service Commission as per proviso (c) of Rule 43 (B) of the Jharkhand Pension Rules, which requires that the Bihar (Jharkhand) Public Service Commission, 45 shall be consulted before final order of stoppage are passed. 43. Therefore, the impugned order dated 30.10.2018 is illegal and arbitrary as concurrence of the Public Service Commission is a condition precedent before passing the final order in a disciplinary proceeding after retirement of the Government servant and in the present case Jharkhand Public Service Commission was neither consulted nor its opinion has been sought for which makes the impugned order invalid and non- sustainable in the eye of law. 44. In view of the law laid down by the Hon’ble Supreme Court, the Hon’ble Patna High Court and the Jharkhand High Court and on the facts and in the circumstances mentioned above, Order dated 30.10.2018 (i.e. Annexure-2) passed by the Director, Secondary Education, School Education and Literacy Department (i.e. Respondent No. 2) is quashed and set aside. Consequently, the Respondents are directed to release forthwith the pension of the writ petitioner and also the arrears of pension with all consequential benefits within a period of Eight (08) weeks from the date of receipt/production of a copy of this order. 45. This writ petition is allowed with the aforesaid directions and observations indicated above. Jharkhand High Court, Ranchi Judgment pronounced on 7th December, 2024 N.A.F.R./s.m. (Sanjay Prasad, J.) 46