Jharkhand HC upholds punishment of deduction of pension for govt employee found guilty of misconduct

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2021 SCC OnLine Jhar 834
In the High Court of Jharkhand at Ranchi

(BEFORE SHREE CHANDRASHEKHAR, J.)
Bivash Chandra Thakur … Petitioner;

Versus
State of Jharkhand through the Secretary, Co-operative
Department, Government of Jharkhand and Others …
Respondents.
W.P. (S) No. 67 of 2012
Decided on December 23, 2021
Advocates who appeared in this case:
For the Petitioner : Mr. Abhay Kumar Mishra, Advocate
For the Respondents : Mr. Om Prakash Tiwari, GP-III
The Order of the Court was delivered by
SHREE CHANDRASHEKHAR, J.:— This is an assigned matter by virtue of order dated
30th November 2017 passed on the administrative side by Hon'ble the Acting Chief
Justice, High Court of Jharkhand.
2. In the writ petition, the petitioner has made a prayer for direction upon the
respondents to make payment of post-retiral benefits to him.
3. The learned counsel for the petitioner submits that the aforesaid prayer has been
made placing reliance upon a decision of the Hon'ble Supreme Court in “State of
Jharkhand v. Jitendra Kumar Srivastava” (2013) 12 SCC 210.
4. The petitioner who was posted as Block Co-operative Development Officer and
was in-charge of Kuru LAMPS Project as Member Secretary was placed under
suspension vide memo dated 16th September 2003 - he retired from the service on
30th June 2008. A departmental proceeding was initiated against him vide memo
dated 24th February 2003 and memorandum of charges was served upon him in Form
“K” dated 18th October 2003.
5. The charge-memo contained the following charges:
Charge No. (i)- The delinquent employee defalcated Rs. 12,58,048/- in different
development projects within Kuru Blocks.
Charge No. (ii)- The delinquent employee defalcated Rs. 77,000/- from the
amount deposited in the recurring deposit scheme under Kuru LAMPS.
6. A supplementary charge-memo was served upon the petitioner on an allegation
that he defalcated Rs. 11,22,125/- and destroyed relevant records with a view to
cause disappearance of the evidence.
7. In the departmental proceeding, the petitioner asked for some records which
were not provided to him and presumably for that reason he did not co-operate in the
departmental proceeding.
8. The inquiring officer submitted the inquiry reports in which the charges
contained in memorandum dated 18th October 2003 and the supplementary charge
dated 18th August 2006 are held proved. A second show-cause notice was issued to
the petitioner vide memorandum dated 28th March 2007 to which he responded and
again denied the charges. The disciplinary authority considered the materials on record
and accepted the findings recorded by the inquiring officer.
9. By an order dated 23rd July 2012, the following punishments are awarded to the
petitioner:
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(i) The delinquent employee shall not be entitled for any payment except
subsistence allowance during the period of suspension.
(ii) Recovery of Rs. 24,57,173/- from post-retiral dues payable to the delinquent
employee, and
(iii) Deduction of 10% pension.
10. Mr. Abhay Kumar Mishra, the learned counsel for the petitioner, has raised two
fold submissions; (i) the departmental proceeding against the petitioner was
conducted in complete breach of the rules of natural justice inasmuch as neither a
show-cause notice was issued to the petitioner nor a copy of the inquiry report was
furnished to him, and (ii) the right of appeal under Jharkhand Pension Rules has been
taken away because the punishment order dated 23rd July 2012 was approved by the
Secretary, Co-operative Department.
11. Rule 43 of the Jharkhand Pension Rules are extracted below:
“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 withdrawing the whole or any part of a pension
under this rule, shall be final and conclusive.
(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 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:
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
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 pensioner 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
(ii) 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 a civil Court.”
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12. A mere glance at Rule 43 would disclose that the appellate authority under Rule
43 is the State Government and not the departmental secretary.
13. The departmental proceeding which was initiated against the petitioner by
serving a charge-memo under Prapatra “Ka” was not conducted in violation of the
principles of natural justice. The materials on record clearly indicate that the petitioner
was afforded opportunity to defend himself but on a specious plea that he was not
provided some documents so as to prepare his defence he did not participate in the
departmental proceeding. Even in the present writ proceeding, the petitioner has not
shown that the documents sought by him were so important that in absence of the
same he could not have effectively defended himself. By now it is well-settled that a
charged employee has no unfettered right to ask for any document on which the
department does not intend to place reliance - in many cases the procedure adopted
by the department is that the charge officer is permitted to inspect the records.
14. In “U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi” (2005) 8 SCC 211, the
Hon'ble Supreme Court has observed that in absence of showing how the alleged non-
supply of documents caused prejudice to workman, the same cannot by itself vitiate
the enquiry.
15. In “SBI v. Bidyut Kumar Mitra” (2011) 2 SCC 316, the Hon'ble Supreme Court
has observed as under:
“40.…. By now, the legal position is well settled and defined. It was incumbent
on the respondent to plead and prove the prejudice caused by the non-supply of
the documents. The respondent has failed to place on record any facts or material
to prove what prejudice has been caused to him.”
16. In my opinion, in a departmental proceeding in which the delinquent employee
refused to co-operate, it was lawful for the departmental authority to proceed in the
matter and take a final decision [refer, “Major U.R. Bhatt v. Union of India” AIR 1962
SC 1344].
17. The charges framed against the petitioner were definitely very serious. The
professed pretension of the petitioner that he was not offered sufficient opportunity to
defend himself is not substantiated by any independent material on record, rather
there is a host of materials on record which would show that to delay the departmental
proceeding the petitioner did not co-operate. In exercise of the powers under Article
226 of the Constitution of India, the writ Court would issue a certiorari if it is
established that the order was passed contrary to the service rules or in breach of the
rules of natural justice. The writ Court may also interfere in the matter where it is
shown that the punishment order is so outrageous that no reasonable employee would
have taken such a decision or that it shocks the conscience of the Court [refer, “Ranjit
Thakur v. Union of India” (1987) 4 SCC 611]. The order of punishment is definitely not
outrageous or disproportionate to the charges framed and found proved against the
petitioner. It is also well-settled that the quantum of punishment is within the
exclusive domain of the departmental authority and the writ Court would not interfere
with the same.
18. In “SBI v. Ajai Kumar Srivastava” (2021) 2 SCC 612, the Hon'ble Supreme
Court has observed as under:
“22. The power of judicial review in the matters of disciplinary inquiries,
exercised by the departmental/appellate authorities discharged by constitutional
courts under Article 226 or Article 32 or Article 136 of the Constitution of India is
circumscribed by limits of correcting errors of law or procedural errors leading to
manifest injustice or violation of principles of natural justice and it is not akin to
adjudication of the case on merits as an appellate authority which has been earlier
examined by this Court in State of T.N. v. T.V. Venugopalan and later in State of
T.N. v. A. Rajapandian and further examined by the three-Judge Bench of this Court
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in B.C. Chaturvedi v. Union of India wherein it has been held as under : (B.C.
Chaturvedi case, SCC pp. 759-60, para 13)
“13. The disciplinary authority is the sole judge of facts. Where appeal is
presented, the appellate authority has coextensive power to reappreciate the
evidence or the nature of punishment. In a disciplinary enquiry, the strict proof
of legal evidence and findings on that evidence are not relevant. Adequacy of
evidence or reliability of evidence cannot be permitted to be canvassed before
the court/tribunal. In Union of India v. H.C. Goel this Court held at SCR p. 728
(AIR p. 369, para 20) that if the conclusion, upon consideration of the evidence
reached by the disciplinary authority, is perverse or suffers from patent error on
the face of the record or based on no evidence at all, a writ of certiorari could be
issued.”
19. For the aforesaid reasons, I do not find any merit in the challenge to the
punishment order dated 23rd July 2012 and, accordingly, W.P. (S) No. 67 of 2012 is
dismissed.
———
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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Friday, February 18, 2022

2021 SCC OnLine Jhar 834

In the High Court of Jharkhand at Ranchi

Bivash Chandra Thakur … Petitioner;

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