IMPORTANT POINT
A retired government servant's pension cannot be deducted without initiating proper departmental proceedings within the stipulated time frame as per the Pension Rules, specifically Rule 43(b).

JUDGMENT :

HON'BLE MR. JUSTICE DEEPAK ROSHAN

Heard learned counsel for the parties.

2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order dated 12.09.2017 (Annexure-6) issued under Memo No. 3912 by respondent no.5; whereby an order for deduction of pension to the tune of 15% of the payable pension for 5 years has been passed for the alleged irregularity for the year 2003-2004 in Micro Lift Project under Water Resources Departent, Bokaro for which the preliminary enquiry and show cause were completed in 2007 but no order was passed till the date of retirement of the petitioner on 31.12.2016.

3. The brief facts of the case is that while the petitioner was serving as Junior Engineer in Minor Irrigation Department and was posted at Chas, Bokaro and was incharge as Junior Engineer for Jaridih Area within the District of Bokaro, a tender for Micro Lift Project Work was floated and M/s Jai Mahalaxmi Construction was selected for completion of the work.

The fact further reveals that in connection with the aforesaid project a file was created and a direction was isused for preliminary enquiry and pursuant to the said direction vide letter no. 171 dated 09.04.2007, a detail report was sought from the office of Executive Engineer, Minor Irrigation Department, Bokaro. Since the then Executive Engineer did not respond to the letter, hence the department constituted a Four Men Committee for enquiry over the matter for spot verification and to find out the correctness of the news item and to submit the report between 14.05.2007 to 18.05.2007. Purusuant thereto; the investigating team reached Bokaro and inquired into the matter, however the enquiry team could not get the file concerned like measurement book etc.

It is the case of the petitioner that enquiry team could visit only Chakulia, Diwan Ganj and Gidhtand Micro Lift Works and the petitioner was given work of Jaridih in Bokaro district and the said investigating team never reached Jaridih Micro Lift Works. Subseqeunty, enquiry team observed that the works taken by M/s Jai Mahalaxmi Construction were substandard and not upto the mark and hence it was blacklisted.

The allegation against this petitioner is that he prepared abstract of measurement book of other works which were not allotted to him and thus he was responsible for the excessive withdrawal. Pursuant to the enquiry report, a show casue was issued to the petitioner on 17.07.2015 (Annexure-2). The petitioner replied to the aforesaid show cause vide its reply dated 08.08.2015 (Annexure-3). Subsequently, the petitioner retired from service on 31.12.2016.

4. It is a specific case of the petitioner that till the date of retirement, no proceeding, whatsoever, was initiated against him and only on the basis of enquiry report a show cause was issued to him for which he duly replied. Subsequently, the respondents issued a second show cause on 02.05.2017 i.e. after the retirement of service and the said second show cause was also replied by the petitioner vide its reply dated 14.05.2017 and finally the impugned order of deduction in the amount of pension by 15% has been issued vide memo no. 3912 dated 12.09.2017.

5. Mr. Dhananjay Kr. Pathak, learned counsel for the petitioner submits that neither Section 43 (b) of Bihar/Jharkhand Pension Rules (hereinafter to be referred as Pension Rules) has been adopted in this case nor action under Rule 139 of Pension Rules empowers the respondents to pass the order of deduction from pension.

He contended that the respondents were very much empowered to convert the proceeding from preliminary enquiry to departmental proceeding after following the principles and procedure under Section 43 (b) of Pension Rules. However, they did not resorted to the provision of 43 (b) instead they pass an order under Rule 139 of the Pension Rules. He further submits that the issue as to when the order under Rule 139 can be resorted has been decided by the Hon’ble Apex Court