IMPORTANT POINT
Departmental proceedings can be deemed initiated prior to retirement if the charge memo is served while the employee is still in service, regardless of when the formal initiation occurs.

JUDGMENT :

HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

1. Heard the learned counsel for the parties.

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

“a. For issuance of an appropriate writ(s)/order(s)/direction(s), in the nature of certiorari, for quashing of the Memo No. 3165 dated 01.06.2023, as contained in Annexure-3, whereby the decision has been taken against the petitioner for initiation of the departmental proceeding under Rule 43 (b) of the Jharkhand Pension Rules which is bad in law and not sustainable in the eye of law in view of Rule 43(b) proviso (a) (ii) of the Jharkhand Pension Rules as well as the decision rendered by the Hon'ble High Court in W.P. (S) No. 5065 of 2014 dated 30.01.2015 approved in L.P.A. No. 580 of 2015 dated 18.06.2020 and other judicial pronouncement on the same point passed in W.P. (S) No. 3503 of 2010 dated 08.05.2015, W.P. (S) No. 4049 of 2014 dated 07.04.2016;

b. For issuance of an appropriate writ(s) /order(s) /direction(s), for quashing of the memo of charge issued by the Deputy Commissioner, Chatra vide his Letter No. 772 dated 19.12.2017 and also Letter No. 397 dated 19.01.2018, as contained in Annexures-4 and 5, issued by the Special Secretary, Urban Development and Housing Department, Jharkhand which is bad in law as well as on facts of the case;

c. During the pendency of the writ application, the Hon'ble Court may further be pleased to stay the operation of Annexure-3 in view of Rule 43 (b) proviso (a) (ii) of the Jharkhand Pension Rules as well as the judgment pronounced by this Hon'ble High Court;

d. For any other relief or reliefs for which the petitioner is very much entitled under the law in the facts and circumstances of the case.”

3. The petitioner was appointed as Deputy Collector pursuant to advertisement and selection and joined the said post on 17.05.1992 and was transferred from one place to another from time to time. On 31.12.2010, the petitioner was transferred to Chatra district as District Land Acquisition Officer and joined on 31.01.2011 and on 19.04.2012, he was transferred from Chatra to Chaibasa district as Sub-Divisional Officer, Sadar and he took charge at Chaibasa on 20.04.2012.

4. The allegation against the petitioner in this case relates to the period from 31.01.2011 to 19.04.2012 during which the petitioner was posted as Land Acquisition Officer in the district of Chatra.

5. The records of this case reveal that petitioner was served with memo No. 3065 dated 10.05.2018 by which he was asked to explain with regard to one letter No.397 dated 19.01.2018 enclosing another letter No.772 dated 19.12.2017 being the charge framed and forwarded for further action in Prapatra “ka” by the Deputy Commissioner, Chatra.

6. The petitioner vide letter dated 25.07.2018 submitted his explanation and denied the allegations and before the petitioner could hear anything further from the respondents, the petitioner had attained the age of superannuation on 31.12.2018. Thereafter the disciplinary proceedings were initiated by invoking rule 43(b) of Jharkhand Pension Rules which is under challenge in this case by submitting that the proceedings are barred by proviso (a) (ii) of rule 43(b) of Jharkhand Pension Rules which prohibit initiation of any disciplinary proceedings after retirement for allegations relating to a period beyond 4 years. It is the case of the petitioner that the disciplinary proceedings were not initiated prior to his retirement as no charge memo was served while the petitioner was in service.

7. It is the case of the petitioner that at no point of time any resolution was issued indicating initiation of department proceeding against the petitioner, rather the letter dated 10.05.2018 was only seeking an explanation from the petitioner and it does not indicate any single word that the departmental proceeding was being initiated against the petitioner, to which the reply was already filed on 25.07.2018 and after much delay, the impugned resolution dated 01.