Allowed

Dhanbir Jha v. the State of Jharkhand through Secretary Water Resources Department

Jharkhand HC13 Mar 2019WPC/824/2018

Case brief

AI extract

What is this about?

In this writ application, the High Court quashed an order directing retention of 10% pension for five years. The court held that the recovery proceeding initiated under Rule 43(b) of the Jharkhand Pension Rules was barred by the four-year limitation period as the alleged misconduct occurred over four years prior to initiation.

What did the court decide?

The impugned order dated 01.11.2017 directing stoppage of 10% pension is quashed and set aside; the writ application is allowed.

Dhanbir Jha Vs the State of Jharkhand… — Pension and Retirement Benefits | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P(S) No. 824 of 2018

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Dhanbir Jha …. …. Petitioner(s).

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Versus

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State of Jharkhand through Secretary, Water Resources Department having its office at Project Bhawan PO PS Dhurwa Dist. Ranchi

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Joint Secretary, Water Resources Department, Govt. of Jharkhand having its office at Project Bhawan PO PS Dhurwa Dist. Ranchi

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Additional Secretary, Water Resources Department, Govt. of Jharkhand having its office at Project Bhawan PO PS Dhurwa Dist. Ranchi

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Chief Engineer, Minor Irrigation Department, Medninagar Palamau havint its office at PO PS Medninagar Dist. Daltonganj, Palamau

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Superintending Engineer, Minor Irrigation Cell, Medninagar Palamau having its office at PO PS Medninagar Dist. Daltonganj, Palamau

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…. …. Respondent(s)

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

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FOR THE PETITIONER(S) : Mr. Shresth Gautam, Advocate FOR THE RESPONDENT(S) : AC to GP -I

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06/13.03.2019

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In this writ application, petitioner has challenged the order contained in Memo No. 4640 dated 01.11.2017, by which, in a proceeding under Rule 43 (b) of the Jharkhand Pension Rule, it has been decided that amount equivalent to 10% pension payable to the petitioner be deducted for a period of five years.

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Counsel for the petitioner submits that admittedly petitioner superannuated from the post of Assistant Engineer on 31.8.2011. He submits that at the time of his superannuation, no criminal case or departmental proceeding was pending against him. He submits that as retiral benefits was not disbursed to him, he approached this Court by filing W.P (S) No.4359 of 2012. The said writ application was allowed with a direction to the respondents to take steps in the matter so that Gratuity, Leave Encashment and remaining balance 10% pension be released to the petitioner immediately. Thereafter, Government of Jharkhand disbursed the said amount but initiated a proceeding under Rule 43 (b) of the Jharkhand Pension Rules against him and passed the impugned order, directing stoppage of 10% pension for a period of five years.

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Counsel for the petitioner submits that order impugned passed under Rule 43(b) of the Jharkhand Pension Rules is absolutely bad and cannot be sustained in the eyes of law. He submits that there is a period of limitation prescribed in

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proviso (a) (ii) of the Jharkhand Pension Rules which prohibits initiation of any proceeding after four years of the event in which misconduct has been committed. He submits that admittedly the alleged misconduct or alleged defalcation was of the year 2007-2008 for which the proceeding has been initiated on 26.2.2014 vide Memo No. 1823. He claims that period for more than four years has elapsed, that too after retirement thus, the entire proceeding under Rule 43(b) is vitiated. He submits that in view of the aforesaid provision of law, the impugned order is liable to be set aside.

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Counsel for the respondents-State by referring to paragraph no. 13 of the counter-affidavit submits that petitioner was asked to give a reply to the showcause which the petitioner furnished. After finding the reply to the show-cause notice to be not satisfactory, proceeding under Rule 43(b) of the Jharkhand Pension Rules was initiated vide resolution as contained in Memo No. 1823 dated 26.2.2104. He admits that amount of defalcation is huge for which the petitioner is liable to be proceeded against. He admits that period of alleged defalcation was of the year 2007-2008, while the petitioner was posted as Assistant Engineer under Minor Irrigation Division Hussainanabad.

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After hearing the parties, I find that the fact that petitioner has superannuated with effect from 31.8.2011 is admitted. It is also admitted that proceeding under Rule 43(b) of the Jharkhand Pension Rules was initiated vide Memo No. 1823 dated 26.2.2014. It is also admitted that period of alleged defalcation is of the year 2007-2008.

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The order impugned, is an order passed under provision of Rule 43(b) of the Jharkhand Pension Rules. By virtue of the said rules, the State Government has a right to withhold or withdraw full pension or part of pension, permanently or for specified period. There is a right of recovery also given to the State to recover the whole or part of any pecuniary loss which occurred at the instance of the government servant. There are three proviso of the said Rule. Relevant would be proviso (a) (ii) in this case. The said proviso prescribes a limitation period for initiating a proceeding under Rule 43(b) of the Jharkhand Pension Rules. It specifies that these proceeding can be initiated in respect of an event which had taken place not more than four years before institution of such proceeding. Thus,

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in terms of said proviso a proceeding under Rule 43(b) has to be initiated within four years from the event. Any proceeding which is initiated beyond the period of

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four years will render the proceeding invalid by virtue of this proviso. It is statutory provision, the same has to be strictly followed.

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Hon’ble Supreme Court in the case of State of Bihar and others Vrs. Mohd. Idris Ansari in Para-10 has held that the recovery provision of Rule 43(b) has to be complied with when such proceedings could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of such proceeding against him. In this case, admittedly the alleged event had taken place in the year 2007-2008. Admittedly, the proceeding under Rule 43(b) was initiated on 26.2.2014. Though there are some notice on record prior to that i.e Anneuxre-2 to the writ application which is dated 21.2.2011 but the same cannot be said to be a notice under Rule 43(b) of the Jharkhand Pension Rules nor those notices can be said to be initiation of proceeding under Rule 43(b) of the Jharkhand Pension Rules. For all practical purpose the initiation of proceeding under Rule 43(b) is vide notice dated 26.2.2014 which is admitted.

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Taking into consideration the aforesaid date i.e 26.2.2014, I find that the incident for which the proceeding has been initiated is more than 4 years old. This proceeding is thus barred by period of limitation prescribed under Proviso (a) (ii) of Rule 43 (b) of the Jharkhand Pension Rules. 9. Since the proceeding initiated is beyond the period of limitation, the entire proceeding initiated under Rule 43(b) as against the petitioner, pursuant to notice dated 21.2.2011 including the impugned order dated 01.11.2017 bad and is liable to be quashed.

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The impugned order dated 01.11.2017 is quashed and set aside. The writ application stands allowed.

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(ANANDA SEN , J)

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anjali/ C.P 2

Dhanbir Jha v. the State of Jharkhand through Secretary Water Resources Department

Case brief

What is this about?

What did the court decide?

Dhanbir Jha v. the State of Jharkhand through Secretary Water Resources Department

Case brief

What is this about?

What did the court decide?

What the court decided

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