Dismissed

The State of Jharkhand through the Pr Secretary Human Resources Development Department v. Laknu Sahu

Jharkhand HC15 Mar 2021LPA/224/2018

Case brief

AI extract

What is this about?

The appeal, filed by the State, challenged a Single Judge's order quashing a departmental order that denied salary minus subsistence allowance to a retired employee. The High Court held that Rule 43(b) applies to grave misconduct regardless of pecuniary loss, but the specific punishment of withholding suspension salary cannot be imposed post-superannuation under that rule.

What did the court decide?

The appeal fails and is dismissed; the Single Judge's order quashing the departmental order stands confirmed.

The State of Jharkhand through the Pr… — Pension and Retirement Benefits | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No.224 of 2018

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With

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I.A. No.269 of 2021

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The State of Jharkhand through the Principal Secretary, Human Resources Development Department, Dhurwa, P.O.-Dhurwa, P.S.Jagarnathpur, District-Ranchi.

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The Director, Secondary Education, Jharkhand, Human Resources Development Department, Dhurwa, P.O.-Dhurwa, P.S.-Jagarnathpur, District-Ranchi.

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The Regional Deputy Director of Education, South Chotanagpur Division, Ranchi, P.O. Court Compound, P.S. Kotwali, DistrictRanchi.

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District Education Officer, Ranchi, P.O. Court Compound, P.S. Kotwali, Distrit-Ranchi.

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. … Respondents/Appellants

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Versus

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Laknu Shahu, Son of Late Kamta Prasad Shahu, Resident of Village Kumhari, P.O.-Kumhariaap, S. Basia, P.S.-Basia, District Gumla.

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… Petitioner/Respondent

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CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants : Mrs. Vandana Singh, Sr. SC-III --------------------------

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ORAL JUDGMENT

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08 / Dated 15^th March, 2021

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I.A. No. 269 of 2021:

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The matter has been heard through video conferencing.

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The instant interlocutory application is under Section 5 of the Limitation Act for condoning the delay of 320 days in preferring the instant appeal.

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[2]

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This Court, after taking into consideration the reason assigned in the instant application as also considering the fact that instead of dismissing the appeal on the ground of limitation it would be appropriate in the ends of justice to decide the appeal on its merit, accordingly, the delay of 320 days in filing the appeal, is condoned.

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In the result, the instant interlocutory application is disposed of.

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L.P.A. No.224 of 2018:

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This is an appeal under Clause 10 of the Letters Patent directed against the order/judgment dated 16.05.2017 passed in W.P.(S) No.5146 of 2011 whereby and whereunder by allowing the writ petition the part of the order dated 22.10.2009, by which the salary for suspension period (minus subsistence allowance) has been denied, has been quashed and set aside and further the respondents have been directed to pay salary for the period of suspension i.e., w.e.f. 30.05.2007 to 28.02.2009 and also to pay arrears of difference of salary on account of two increments for the period from 01.02.2007 to 29.02.2009 and also for a direction to pay difference of arrears of salary on account of revision of his pay for the period from 01.01.2006 to 30.05.2007.

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The brief facts of the case which requires to be enumerated read as under:

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The writ-petitioner was appointed initially in the year 1982 in the Government recognized High School at Gumla district where he joined on 21.07.1982. He was transferred to National High School, Bantahazam, Silli Block of Ranchi District where he

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joined in the month of August, 1996 and on attaining the age of 60 years, got superannuated from service w.e.f. 28.02.2009.

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The writ petitioner, while in service, was made in-charge headmaster in the month of November, 2005 on account of retirement of permanent headmaster and while he was working as such, was put under suspension vide Memo No.1338 dated 30.05.2007 which was communicated by the District Education Officer, Ranchi vide Letter dated 07.06.2007. The writ petitioner, thereafter, was served with a memo of charge vide Memo No.2401 dated 29.08.2007 by the Director Secondary Education, Jharkhand, Ranchi and the Regional Deputy Director of Education, South Chotanagpur Division, Ranchi was made conducting officer.

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The writ petitioner, after receipt of the memorandum of charge, had submitted his explanation before the enquiry officer on 18.09.2007 denying the charges levelled against him stating inter alia therein that the balance of students’ fund was of Rs.9211/- but in the memo of charge the allegation was made against the writ petitioner that the balance was of Rs.9,021,100/-. So far as the allegation regarding realization of excess examination fee from the students by the writ petitioner is concerned, the same is baseless since the writ petitioner never realized the said amount rather the clerk of the writ petitioner’s school had realized the said amount of Rs.15/- per student to meet the expense towards making bank draft and also travelling allowance for submission of fee forms in the Examination Board. However, at the writ petitioner’s instance, the said amount was returned to all the students by the said clerk.

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[4]

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The enquiry could not be concluded while the writ petitioner was in service. The writ petitioner superannuated from service on attaining the age of superannuation w.e.f. 28.02.2009. The respondent authorities, after superannuation of the writ petitioner, had issued an order on 13.05.2009 whereby and whereunder the writ petitioner has been put under suspension w.e.f. 30.05.2007. However, the order of suspension was revoked and the departmental proceeding had continued under the deemed conversion thereof under the provision of Rule 43(b) of the Jharkhand Pension Rules, subsequently the enquiry report has been submitted.

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It is the grievance of the writ petitioner that the moment the writ petitioner superannuated from service the order of suspension has merged with the order of superannuation, therefore, he is entitled for disbursement of full salary for the suspension period excluding the subsistence allowance already paid. The respondent authorities, however, has issued the second show cause notice asking explanation from the writ petitioner regarding the proposed punishment for deduction of 05 per cent of his pension.

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The due explanation was submitted before the Director, Secondary Education, Jharkhand clarifying and denying the charges levelled against him. The writ petitioner, however, has been paid 90 per cent of his pension, full gratuity, amount of leave encashment, amount of group insurance, amount of G.P.F., etc. but the salary for the period of suspension since has not been paid, save and except, the subsistence allowance that too without any notice in

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[5]

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this regard, therefore, he has approached to this Court by filing a writ petition being W.P.(S) No.5146 of 2011 for grant of following reliefs:

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“(i) issuance of appropriate writ/order or direction in the nature of certiorari for quashing of only that part of order by which salary for suspension period (minus subsistence allowance) has been denied vide order dated 22.10.2009, issued by the Director, Secondary Education, Jharkhand (Respondent No.2) vide memo No.3211 as the master and servant relationship comes to an end from the date of his retirement as well as also the impugned order has been passed without application of mind;

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(ii) a direction to the respondents concerned to make payment of salary for the period of suspension i.e., with effect from 30^th May, 2007 to 28.02.2009 (minus subsistence allowance already paid) and also to pay arrears of difference of salary on account of two increments for the period from 1.2.2007 to 29.2.2009 as the increment of the petitioner was fall on 1.7.2007 and 1.7.2008, which was not given during suspension period and also for payment of difference of arrears of salary on account of revision of his pay for the period from 1.1.2006 to 30.5.2007;”

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The writ petition was contested by the respondent-State

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by filing counter affidavit inter alia therein the stand was taken that the salary for the said period has not been paid since the charges levelled against the writ petitioner were found to be established, thereafter, a decision was taken on 22.10.2009 to the effect that the writ petitioner will get only subsistence allowance for the period of suspension.

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The learned Single Judge has allowed the writ petition by directing the authority to realize the entire salary excluding the subsistence allowance, however, holding therein that the proceeding under Rule 43(b) of the Jharkhand Pension Rules will not attract in the facts and circumstances of the instant case because there is no allegation

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of pecuniary loss. The said order is under question in the instant intra-court appeal.

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Mrs. Vandana Singh, learned Sr. SC-III appearing for the appellants-State of Jharkhand has fairly submitted that after conversion of the proceeding under Rule 43(b) of the Jharkhand Pension Rules, there cannot be an order for not making payment of the salary, save and except, subsistence allowance for the period of suspension. However, she submits that the proceeding of Rule 43(b) of the Jharkhand Pension Rules will also be applicable even though other misconduct is proved as would be evident from the provision of Rule 43(b) of the Jharkhand Pension Rules.

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This Court has heard the learned counsel for the appellants, gone across the materials available on record appended as annexures and the finding recorded by the learned Single Judge.

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The admitted fact herein is that while the writ petitioner was in service a departmental proceeding was initiated. He was suspended in contemplation of the departmental proceeding and has been paid subsistence allowance for the suspension period.

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It is further admitted that in course of pendency of the departmental proceeding initiated under the Civil Services (Classification, Control & Appeal) Rules, the writ petitioner superannuated from service w.e.f. 28.02.2009 and as such, the proceeding initiated under the Discipline and Appeal Rules deemed to have been converted under the provision of Rule 43(b) of the Jharkhand Pension Rules.

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[7]

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The writ petitioner participated in the enquiry and defended his case. The enquiry officer has found the charges proved against the writ petitioner and passed the order imposing punishment of withholding the salary for the suspension period (minus subsistence allowance).

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The learned Single Judge has recorded a finding by dealing with the scope of Rule 43(b) of the Jharkhand Pension Rules and came to the conclusion that since no charge is levelled against the writ petitioner pertaining to pecuniary loss caused to the State Government, therefore, the provision of Rule 43(b) of the Jharkhand Pension Rules will not be applicable and accordingly, quashed the impugned order dated 22.10.2009.

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The issue which requires to be considered herein, are :

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(i) whether the provision of Rule 43(b) of the Jharkhand Pension Rules will be attracted in absence of any pecuniary loss caused to the Government even if other misconduct has been found to be proved?

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(ii) whether the order of punishment to the effect of withholding the salary for the period of suspension can be passed against the superannuated employee by resorting to the provision of Rule 43(b) of the Jharkhand Pension Rules?

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Issue No.1: This Court in order to answer this issue has considered the provision of Rule 43(b) of the Jharkhand Pension Rules. For ready reference, the same is being reproduced hereinbelow:

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“ 43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension of any part of it,

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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 cause to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have cause pecuniary loss to Government by misconduct or negligence, during the service including service rendered on re-employment after retirement:

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Provided that –

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(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment;

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(i) shall not be instituted save with the sanction of the State Government;

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(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

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(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;

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(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment, shall have been instituted in accordance with subclause (ii) of clause (a); and

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(c) the Bihar Public Service Commission, shall be consulted before final orders are passed. ”

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It is evident from the provision of Rule 43(b) of the Jharkhand Pension Rules which empowers the State Government to withhold or withdraw a pension of 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 cause to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have cause pecuniary loss to Government by misconduct or

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negligence, during the service including service rendered on reemployment after retirement subject to certain conditions provided therein.

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Thus, it is evident that the provision of Rule 43(b) can be resorted to by the State Government even in case of grave misconduct or if found involved in pecuniary loss to the Government, therefore, it is not that in absence of allegation of causing pecuniary loss to the Government, the provision of Rule 43(b) will not be resorted to by the Government rather the consideration to resort the provision of Rule 43(b) will come if any grave misconduct has been found to be proved against the concerned pensioner.

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The matter with respect to the provision of Rule 9 of the CCS (Pension) Rules fell for consideration before the Hon’ble Apex Court in Union of India and Ors. vs. B. Dev, (1998) 7 SCC 691 which is pari materia provision to that of Rule 43(b) of the Jharkhand Pension Rules. The Hon’ble Apex Court has held at paragraph-11 thereof that the power can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension, in a case where any pecuniary loss is caused to the Government. This is an independent power in addition to the power of withdrawing or withholding pension. The contention of the respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable.

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A co-ordinate Division Bench of this Court in The State

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of Jharkhand through its Chief Secretary, Ranchi and Ors. vs. Jitendra Prasad Sharma, [2014 (4) JCR 718 (JHR)] had also come to the same view as under paragraph-13 relying upon the judgment rendered by Hon’ble Apex Court in Union of India and Ors. vs. B. Dev (supra). Paragraph-13 of the judgment rendered by the coordinate Division Bench of this Court is being reproduced hereinbelow:

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“ 13. We accordingly hold that applicability of Rule 43(b) of the Jharkhand Pension Rules cannot be restricted only to the cases in which pecuniary loss has been suffered by the Government.”

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This Court, therefore, is of the view that the finding recorded by the learned Single Judge to the effect that the provision of Rule 43(b) will only be applicable if there is any pecuniary loss to the State Government, cannot be said to be a correct finding, therefore, the finding recorded to that effect by the learned Single Judge is hereby held to be contrary to the statutory provision as contained under Rule 43(b) of the Jharkhand Pension Rules as also contrary to the ratio laid down by the Hon’ble Apex Court in Union of India and Ors. vs. B. Dev (supra).

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Issue No.2: So far as the this issue is concerned pertaining to order of punishment by which the salary for suspension period (minus subsistence allowance) has been denied, according to our considered view, if the proceeding initiated against the government employee while in service under the Discipline and Appeal Rules the punishment can be imposed as per the list of punishment but once the government employee gets superannuated from service,

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the proceeding initiated against the said employee under the Discipline and Appeal Rules will be deemed to have converted under the applicable Pension Rules as has been done in the instant case but the question is that whether under the Pension Rules the punishment pertaining to withholding of salary for the period of suspension can be imposed, the answer of this Court would be in negative because once the proceeding initiated under the Discipline and Appeal Rules has been converted to the provision of Jharkhand Pension Rules, the only punishment under the provision of Rule 43(b) of the Jharkhand Pension Rules is to withhold the pension or part of it in case of having found guilty of grave misconduct or if pecuniary loss caused to the Government, hence, save and except, withholding of pension no other punishment can be imposed.

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Here, in the instant case, the respondent authorities have converted the proceeding initiated under the provision of Rule 43(b) of the Pension Rules after superannuation of the writ petitioner from service but imposed the punishment presuming the writ petitioner in service making applicability of the provision of Discipline and Appeal Rules by withholding the salary for the suspension period which is not provided under the provision of Rule 43(b) of the Jharkhand Pension Rules, therefore, the order of punishment dated 22.10.2009 withholding salary for the period of suspension (minus subsistence allowance) passed in exercise of power conferred under Rule 43(b) cannot be said to be within the jurisdiction of the

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authority, therefore, the same is held to be without jurisdiction and contrary to the provision of Rule 43(b).

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Accordingly, the order passed by the learned Single Judge by quashing the order dated 22.10.2009 cannot be said to be improper, however, one of the grounds upon which the order dated 22.10.2009 has been quashed, i.e., non-applicability of the provision of Rule 43(b) since there is no allegation of pecuniary loss caused to the Government, cannot be said to be a correct finding as has been answered by us while dealing with issue No.1. The result would be under the provision of Rule 43(b) that there cannot be a punishment for withholding the salary for the suspension period. In that view of the matter, the final outcome of the decision of the learned Single Judge to the effect of quashing the order dated 22.10.2009, requires no interference by this Court.

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