- (1.) C.A.V. On 27.01.2014 Pronounced on 31.01.2014 In this Letters Patent Appeal challenged to order dated 19.09.2012 passed in W.P.(S) No. 3019 of 2011 is confined to the interpretation given by the learned Single Judge to Rule 43 (b) of Jharkhand Pension Rules which reads as under : 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 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-2 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 3 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."
(2.) The respondent herein (writ petitioner) was inducted in the State Police Service and he was posted as Deputy Superintendent of Police. On 29.07.2003, he was transferred to Transport Department and by order dated 31.12.2005 his service was returned to his parent department. A departmental proceeding was decided to be initiated against the respondent and consequently, Resolution dated 22.05.2009 was issued. The inquiry officer submitted the report in which four charges out of five charges, i.e. except charge no. 4, were found proved. A second show-cause notice was issued to the writ petitioner and the final order withholding his 50% pension was passed on 31.12.2010. In the meantime, the respondent had superannuated from service w.e.f. 30.11.2009. Aggrieved, the respondent moved this Court in W.P.(S) No. 3019 of 2011 which was allowed by order dated 19.09.2012 holding that sub-Rule (b) of Rule 43 of the Jharkhand Pension Rules can be pressed in service for withholding in full or in part, pension of an 4 employee only when the Government has "suffered pecuniary loss on account of misconduct, negligence or omission on his/her part" and since no pecuniary loss was suffered by the Government on account of alleged misconduct of the writ petitioner, order dated 19.09.2012 was liable to be quashed.
(3.) Mr. Rajesh Kumar, the learned Government Advocate has contended that, by the impugned order dated 19.09.2012, the scope of Rule 43 (b) of Jharkhand Pension Rules has been restricted in as much as, it has been held that it can be invoked only in cases of pecuniary loss suffered by the Government, which on a plain reading of Rule 43(b) of the Jharkhand Pension Rules was not intended by the framers of the Rules. Stressing on explanation to Rule 43 (b), the learned counsel contends that the situations contemplated under Rule 43 (b) includes, judicial proceeding which can either be a criminal proceeding or a civil proceeding, as also departmental proceeding in which a delinquent employee has been found guilty of grave misconduct. Referring to Rule 139 of Jharkhand Pension Rules, the learned counsel for the respondent-State of Jharkhand contended that the State Government is competent to revise an order of pension, if the service of the pensioner was not thoroughly satisfactory or if there was proof of grave misconduct on his part, while in service.5;