Allowed¶36

Bishnu Kumar v. Personnel And Adminis Reform

Jharkhand HC12 Aug 2024WPC/7208/2016

Case brief

AI extract

What is this about?

Post-retirement departmental proceeding; pension deduction 20% in equal installments for 10 years; Rule 43(b) Jharkhand Pension Rules four-year limitation; State of Bihar v Mohd Idris Ansari 1995 Supp (3) SCC 56 relied on; show cause dated 02.07.2013 versus initiation of proceeding by memorandum of charge 09.05.2016; Sikh riot victims compensation committee; grave misconduct; pecuniary loss recovery from pension; writ petition allowed, punishment quashed, consequential benefits; High Court of Jharkhand at Ranchi; Justice Ambuj Nath; 12.08.2024.

What did the court decide?

Writ petition allowed; impugned punishment order (Memo No. 6901 dated 12.12.2023, deduction of 20% of pension in equal installments over 10 years) quashed; petitioner declared entitled to consequential benefits; pending I.A., if any, disposed of. ¶36

Bishnu Kumar Vs Personnel And Adminis Reform — Jharkhand HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the departmental proceeding initiated on 09.05.2016, and the punishment order founded on it, was barred by limitation under Rule 43(b) of the Jharkhand Pension Rules, the alleged misconduct having taken place on 29.03.2007. +1 more

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Court's answer

On a bare reading of Rule 43(b) of the Jharkhand Pension Rules, a departmental proceeding against an employee of the State Government cannot be initiated more than four years after the misconduct took place.

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Ratio / Principle

Here the alleged misconduct took place on 29.03.2007, the petitioner retired on 31.07.2011, and the departmental proceeding was initiated on 09.05.2016, i.e. after nine years from the alleged misconduct and more than four years from the date of retirement.

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Key takeaways

The departmental proceeding was therefore time barred by limitation.ratio¶32
The impugned order imposing punishment by deduction of 20 percent of the petitioner's pension, to be realised in equal installments within 10 years, is quashed.ratio¶35

Detailed headnote1 paragraphs

High Court of Jharkhand (Ambuj Nath, J.; decided 12.08.2024) allowed W.P.(S) No. 7208 of 2016 filed by Bishnu Kumar, a retired State Government servant (retired 31.07.2011), quashing the punishment order vide Memo No. 6901 dated 12.12.2023 issued by respondent no. 3 (Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha Department) deducting 20% of his pension in equal installments over 10 years. The punishment rested on a departmental proceeding initiated by memorandum of charge on 09.05.2016 concerning recommendations made, as member of a committee on compensation to Sikh riot victims, to two ineligible persons (committee report dated 31.03.2007; alleged event 29.03.2007). Relying on Rule 43(b) of the Jharkhand Pension Rules and on State of Bihar and others v. Mohd Idris Ansari, 1995 Supp (3) SCC 56, the court held that such a proceeding cannot be instituted for an event older than four years; initiation came after nine years from the alleged event and more than four years after retirement, hence the proceeding was time barred. Petitioner entitled to consequential benefits.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (S) No. 7208 of 2016

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Bishnu Kumar, S/o Late Mahadeo Ram, R/o Village, P.O & P.S. Bhawnathpur, District- Garhwa (Jharkhand) at present residing at Rashmi Niwas, West End Park, P.O & P.S. Hehal, Ranchi, District Ranchi, Jharkhand-834005

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The State of Jharkhand

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The Principal Secretary, Personnel, Administrative Reforms and Rajbhasa Department, Govt. of Jharkhand Ranchi, at + P. 0+ P.SDhurwa, District- Ranchi.

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The Deputy Secretary, Personnel, Administrative Reforms and Rajbhasa Department, Govt. of Jharkhand, Ranchi, at + P.O. + P.S.-Dhurwa, District-Ranchi.

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The Deputy Commissioner, Bokaro, At + P.O. + P.S. + DistrictBokaro, Jharkhand.

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The Additional Collector, Bokaro, At + P. O. + P. S. +DistrictBokaro, Jharkhand.

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Sri Binod Chandra Jha, Departmental, Enquiry Officer, Golchakar, Dhurwa, At + P.O. + P.S.-Dhurwa, District-Ranchi834004 ... … Respondent(s)

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CORAM: - HON’BLE MR. JUSTICE AMBUJ NATH

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For the Petitioner : M/s. Krishna Murari, Advocate For the Resp-State : M/s. Rohit, AC to A.A.G.-I

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13/12.08.2024 Heard the parties.

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The petitioner has filed this writ petition for quashing of order of punishment issued vide Memo No. 6901 dated 12.12.2023, issued by respondent no. 3, The Deputy Secretary, Personnel, Administrative Reforms and Rajbhasa Department, Govt. of Jharkhand, Ranchi, whereby and wherein punishment was imposed by the Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha Govt. of Jharkhand for deduction of 20

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percent of the pension amount of the petitioner in equal installments for 10 years.

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A departmental proceeding was initiated against the petitioner on 09.05.2016 when memorandum of charge was issued. It is alleged that the petitioner was a member of committee to recommend for giving compensation to the victims of Sikh riots. He had recommended for giving compensation to two persons who were not found to be eligible. The report of the committee was submitted on 31.03.2007. The petitioner subsequently retired on 31.07.2011.

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Learned lawyer appearing on behalf of the petitioner submitted that as per the provisions of Rule 43 (b) of the Jharkhand Pension Rules, the initiation of departmental proceeding was time barred.

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Rule 43 (b) of Jharkhand Pension Rules reads as

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under:-

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“ 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 Government if the pensioner is found in departmental or judicial proceeding 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: -

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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 ”. Reliance has been placed upon a decision of the

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Supreme Court reported in 1995 Supp (3) SCC 56 in the case of State of Bihar and others Vs Mohd Idris Ansari in which the Hon’ble Supreme Court has held:-

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“ So far as the second type of cases are concerned the proof of grave misconduct on the part of the Government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 31.1.1993 and the show cause notice was issued on the ground of grave misconduct on 27.09.1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27.09.1993 meaning thereby it should have been committed during the period from 26.09.1989 upto 31.01.1993 when respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139(a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27.09.1993 invoking

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powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which show cause notice dated 27.09.1993 was issued, the appellant authority had no power to invoke Rule 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13.12.1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after expiry of four years from 198687 as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the show cause notice dated 27.09.1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed. There is no order as to costs ”

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From a bare reading of the provisions of Rule 43 (b) of the Jharkhand Pension Rules, it is evident that a departmental proceeding against the employee of the state government cannot be initiated after more than four years after the misconduct has taken place. It is alleged that misconduct took place on 29.03.2007, whereas the petitioner retired on 31.07.2011 and the departmental proceeding was initiated on 9.05.2016. It is evident that the departmental proceeding was initiated after 9 years from the date when the misconduct is alleged to have

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taken place and after more than four years from the date of retirement of the petitioner.

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From the aforesaid facts, is evident that the departmental proceeding was time barred by limitation.

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Learned lawyer appearing on behalf of the respondentstate submitted that show cause was issued to the petitioner on 2.07.2013 itself but issuance of show cause will not amount to initiation of departmental proceeding against the petitioner, as per the ratio laid down in the case of State of Bihar and others Vs. Mohd Idris Ansari (Supra).

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The departmental proceeding was initiated after four years from the alleged misconduct and after nine years from the date of retirement of the petitioner.

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Accordingly, the impugned order imposing punishment upon the petitioner for deduction of 20 percent of the pension amount which was to be realized in equal installments within 10 years is hereby quashed.

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This writ petition is allowed.

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The petitioner will be entitled for consequential

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benefits

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Pending I.A., if any, also stands disposed of.

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(Ambuj Nath, J.)

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Saurabh