Rule 43(a) of the Pension Rules is not applicable to cases where the misconduct in question occurred while the petitioner was in service and departmental proceedings had already been initiated against him.

JUDGMENT :

1. Heard the Learned counsel for the parties.

2. This writ petition has been filed for the following reliefs: -

“(a) Quashing the order of the Finance Secretary, Government of Jharkhand as contained in memo no. 2069 dated 27.09.2012 (Annexure-7) holding the same as arbitrary, illegal, violative of Principles of Natural Justice, unwarranted, without jurisdiction and unconstitutional.

(aa) Quashing/setting aside the order dated 24.5.2014 purportedly passed under Rule 43(b) & 139 of the Jharkhand Pension Rules by the Deputy Commissioner, Ranchi (as contained in Annexure-14);

(ab) direct the respondents to pay pensionary dues for the period of 21 months (March 2009 to 28th November, 2010) prior to the conviction in criminal case;

(b) Directing the respondents to pay full pension and gratuity to the petitioner alongwith interest @ 18% P.A. over and above the unpaid part of it with effect from the date of petitioner’s superannuation;

(c) saddling the respondents with exemplary cost to be paid to the petitioner.”

Arguments of the Petitioner on various dates

3. On 25.02.2021, the learned counsel for the petitioner had submitted that following questions of law are involved in this case: -

(i) Whether an order under Rule 43 (a) of Bihar Pension Rules (herein after to be referred as Pension Rule) can be passed without notice to the petitioner?

(ii) Whether the impugned order passed under Rule 43(a) of the Pension Rules transpires non application of mind as it has been passed without ascertaining and without coming to a definite decision with respect to forfeiture etc.?

(iii) Whether denial of pension to this petitioner prior to his conviction is arbitrary?

(iv) Whether the order passed under Rule 43(b) of the Pension Rule is sustainable in the eye of law when an order under Rule 43(a) was in existence?

(v) Whether the Order under Rule 43 (b) of the Pension Rules passed by the Deputy Commissioner, Ranchi is legal?

(vi) Whether the respondents are justified in adopting pick and choose method in giving pension to the similarly situated employees who are also convicted in the AHD Scam cases like this petitioner and denial of the same to this petitioner?

4. On 25.02.2021 itself, the learned counsel for the respondents was directed to file reply on the aforesaid issues. Pursuant thereto, a counter affidavit dated 26.10.2021 has been filed in the present case.

5. On 12.09.2022, learned counsel for the petitioner had submitted that there are two impugned orders passed in this case, one is under Rule 43 (a) and other is under Rule 43(b) of Jharkhand Pension Rules. From perusal of Annexure-14, order passed under Rule 43(b), it appeared that charge sheet was issued to the petitioner in Prapatra-ka prior to his retirement and the proceeding was continued after his retirement by purported exercise of power under Rule 43(b) of the Jharkhand Pension Rules. It was observed that Prapatra-ka was not on record and it was not clear from the records as to whether the petitioner was forwarded a copy of the enquiry report for his comments by way of second show cause prior to passing the impugned order dated 24.05.2014. From the averments made in the writ petition, it was stated that the petitioner obtained a copy of the enquiry report through Right to Information. There were other material facts also which were required to be seen which touched upon the manner of exercise of power in the present case by the respondents in the matter of passing the order under Rule 43(a) and Rule 43(b). Accordingly, learned counsel for the respondents was directed to produce the entire records of the case including the record of the enquiry officer which culminated in passing of the aforesaid two impugned orders in the present case. Consequently, another supplementary counter affidavit was filed on 12.10.2022.

6. On 14.10.2022, learned counsel for the petitioner has advanced his argument on the point of alleged procedural irregularity in the impugned proceedings which