The Pr.Commissioner of Income Tax-1 vs. Aster Infratek Pvt.Ltd.,

IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 576 of 2016

1.The State of Jharkhand through Principal Secretary, Water Resources Department, Govt of Jharkhand, Nepal House, P.O. and P.S. Doranda, Dist Ranchi. 2.The Joint Secretary, Water Resources Department, Govt of Jharkhand, Nepal House, P.O. and P.S. Doranda, Dist Ranchi. 3.Accountant General, Jharkhand, P.O. & P.S. – Doranda, Ranchi, Jharkhand.

… … … Appellants Versus Baneshwar Rabidas Son of Late Binod Rabidas Resident of Village Kasam Burudih (Murpa) P.O. and P.S. Tamar Dist Ranchi.

.… … … Respondents ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE SUBHASH CHAND ------- For the Appellant : Mr. Manish Mishra, G.P V

Ms. Varsha Ramsisaria, AC to G.P.V For the Respondents : Mr. Siddhartha Ranjan, Advocate

Ms. Shipra Shalini, Advocate ------

Order No. 27/Dated 19th January, 2023

Per Sujit Narayan Prasad, J :

The instant intra-court appeal, under Clause 10 of the Letters Patent, has been preferred against judgment/order 16.05.2016 passed by learned Single Judge in W.P. (S) No. 1608 of 2014, whereby and whereunder the impugned order dated 20.03.2015, by which, 5 % pension of the petitioner has been decided to be withheld, has been quashed and set aside with a direction upon the respondents-authorities to pay the admissible pension to the petitioner forthwith and so far arrears of pension, on account of deduction of 5% pension is concerned, the respondents-authorities were directed to

pay the same within a period of 16 weeks from the date of receipt/production of copy of the order. 2. The brief facts of the case, as per pleadings made in the writ petition, read as hereunder:

The petitioner while posted as Executive Engineer, Water Ways Division, Hazaribagh, up-to the financial year 2006-07, construction of four buildings under Bhairwa Reservoir Scheme K-Building was sanctioned, for which the then Superintending Engineer, Water Ways Circle, Hazaribagh, and the then Chief Engineer, Water Resources Department, Ranchi granted technical sanction of the Estimate for construction of the said building. Consequent upon the departmental letter, the Chief Engineer, Water Resources Department directed the petitioner to get the said work executed departmentally.

Thereafter, in the light of direction given by the competent authority, the petitioner authorized the Assistant Engineer of the concerned Division to work as ‘departmental agency’. It is stated that pursuant to departmental order, he handed over the charge to new incumbent on 25.07.2007 related to the construction of those buildings, which was finally got completed by him.

After completion of work, the accounts were sent for audit to the office of Accountant General, Jharkhand, where a query was put forth by Accountant General (Audit),

Jharkhand to the State Government regarding actual execution of the work.

It is the case of the petitioner that in the garb of query made by the Accountant General (Audit), Jharkhand a departmental proceeding was initiated against him for the charges of grave irregularity, misconduct, indiscipline vide Memo No. 302 dated 24.01.2009, whereby and whereunder following charges were framed against the petitioner, as would appear from annexure 1 to the writ petition, which reads as under:

आरोप आरोप का वििरण वियम विरूद्ध कायय करिा] वित्तीय अवियवमतता बरतिा ।

जब श्री रविदास काययपालक अवियंता] जल पथ प्रमंडल] हजारीबाग के प्रिार में थे तो आपके द्वारा मार्य

8002

तक सहायक अवियंता] जल पथ अिर प्रमंडल] हजारीबाग ( मुख्यालय ) को 82 . 47

लाख रूपये का अविम र्ार कायय वििागीय तौर पर करािे हेतु उपलब्ध कराया गया। सहायक अवियंता द्वारा र्ारों कायों के वलए फामय ि0- 631

जो सम्वेदक द्वारा वकए गये कायय के वलए उपयोग में लाया जाता है पर कुल 83 . 80

लाख रूपये का लेखा ( 1 कायय वदिांक 36 .03. 8004

एिं

कायय वदिांक 3 .9. 8004

मार्य

8002

के बीर् )समवपयत वकया गया ।

विदेशािुसार आपके द्वारा उक्त कायय वििागीय स्तर पर कराया जािा था। वििागीय तौर पर कायय करिे के वलए सामवियों के क्रय हेतु विविदा आमंवित की जािी थी] प्राप्त सामवियों के विरूद्ध सप्लाई िाउर्र एिं मास्टर रौल का संधारण वकया जािा अपेवित था वकन्तु आपके द्वारा वििागीय कायय सम्पावदत िहीं कर सम्वेदक के माध्यम से कराया गया है।

महालेखाकार ( लेखा परीिक )द्वारा सब वडिीजिल एकाउन्ट में मास्टर रौल एिं परर्ेज विल्स की प्रविवि िहीं पाई गई। आपके द्वारा समवपयत कॉन्टरेक्टर वबल ( Contractor Bill) के आधार पर समवपयत लेखा को पाररत करते हुए िुगताि वकया गया है जो झारखण्ड लोक विमायण संवहता के वियमों का उल्लंघि है। उक्त आरोप आपके विरूद्ध प्रथम दृिया प्रमावणत है।

It is further case of the petitioner that although the scope of investigation, as enquired by Accountant General,

was as to whether the actual work was executed or not as the work in question was approved by the Chief Engineer without inviting tender for the purchase of materials but the departmental proceeding for inflicting major punishment was initiated against the writ petitioner- respondent herein.

The writ petitioner participated in the departmental proceeding and submitted his reply before the enquiry officer but the disciplinary authority on the basis of enquiry report submitted by enquiry officer imposed punishment vide Memo No. 2764 dated 07.09.2010, whereby the petitioner was inflicted with the punishment of (i).Stoppage of two annual increments with cumulative effect and; (ii).He was debarred for promotion for two years from the date of entitlement.

The writ petitioner, being aggrieved with the order of punishment, approached the writ Court by filing writ petition being W.P. (S) No. 4058 of 2012, which was allowed vide order 07.05.2013 by which the impugned order of punishment as contained in Memo No. 2764 dated 07.09.2010 was quashed and set aside, granting liberty to the respondents-State to proceed against the petitioner in accordance with law.

In the meantime, the writ petitioner superannuated on 30.04.2013 from the post of Chief Engineer but instead

of granting retirement benefits, accrued to him, as also arrears of salary so accrued since the punishment of stoppage of two annual increments inflicted earlier was quashed by this Court vide order dated 07.05.2013, after eight months of his retirement a show cause notice dated 21.01.2014 was served upon him asking the writ petitioner as to why the writ petitioner be not punished in exercise to power conferred to the State under Rule 43(b) of the Jharkhand Pension Rules.

The writ petitioner being aggrieved with the same approached this Court by filing writ petition being W.P. (S) No. 1608 of 2014. However, during pendency of the writ petition impugned order of punishment was passed vide order dated 20.03.2015 whereby and whereunder 5% pension has been decided to be withheld in exercise of power conferred under Section 43(b) of the Jharkhand Pension Rules, which has been challenged and brought on record by filing Interlocutory Application No. 2026 of 2015 (Annexure 7).

The learned Single Judge taking into consideration the fact that the allegation levelled against the petitioner does not pertain to pecuniary loss to State exchequer by the omissions and commissions of the petitioner as such does not attract Rule 43(b) of the Jharkhand Pension Rule quashed the impugned order of punishment vide order

dated 16.05.2016 with a direction upon the respondents to pay admissible pension to the petitioner forthwith and so far arrears of pension on account of deduction of 5% pension is concerned direction was issued to pay the same within a period of 16 weeks from the date of receipt/production of copy of this order, which is the subject matter of instant intra-court appeal. 3. Mr. Manish Mishra, learned G.P. V appearing for the appellants-State has assailed the impugned order dated 16.05.2016 passed in W.P. (S) No. 1608 of 2014 by learned Single Judge solely on the ground that the finding which has been recorded by learned Single Judge showing interference with order dated 20.03.2015 is the issue that the State having not been put to pecuniary loss but the said aspect of the matter regarding applicability of the provision of Rule 43(b) of the Pension Rules has been held not only to be applicable in the case of State having sustained pecuniary loss but also the provision of Rule 43(b) will be applicable in case of proved misconduct irrespective of the pecuniary loss, as has been held by Division Bench of this Court in the case of The State of Jharkhand & Ors Vs. Jitendra Prasad Sharma reported in 2014(1) JLJR 581 passed in L.P.A. No. 79 of 2013.

The learned counsel appearing for the State therefore submits that the order passed by learned Single

Judge suffers from patent illegality since the said order has been passed without taking into consideration the order passed by learned Co-ordinate Division Bench of this Court in The State of Jharkhand & Ors Vs. Jitendra Prasad Sharma (supra). 4. Per contra, Mr. Siddartha Ranjan, learned counsel for the respondent-writ petitioner has submitted that the State has filed the instant appeal questioning the impugned order only on the ground that Rule 43(b) cannot be allowed to be applicable only in the case if State has sustained any pecuniary loss, but, as has been held in the case of the State of Jharkhand & Ors Vs. Jitendra Prasad Sharma (supra) the pertinent question involved in this case is that the show cause notice issued in exercise of power conferred under Section 43 (b) of the Pension Rules by which 5 % Pension has been withheld can be said to be in accordance with law as per liberty granted by this Court in W.P. (S) No. 4058 of 2012 vide order 07.05.2013 wherein the learned Single Judge has allowed the writ petition by quashing the impugned order of punishment dated 07.09.2010, by which, the petitioner was inflicted with the punishment of (i).Stoppage of two annual increments with cumulative effect and (ii).He was debarred for promotion for two years from the date of entitlement.

It has been submitted that the day when the order of punishment was quashed by the learned Single Judge, the entire departmental proceeding will stand terminated and once the impugned order of punishment is quashed by this Court, the departmental proceeding initiated in terms of charge as contained in Memo no. 302 dated 24.01.2009 will also stand terminated.

The departmental proceeding having been terminated, thereafter the State-appellant ought to have initiated fresh proceeding under the provisions of Rule 43(b) of the Pension Rules, if permissible, but having not done so, fresh show notice was issued treating the proceeding in terms of Memorandum of charge issued vide Memo No. 302 dated 24.01.2009 to be revived and as such the said action of the State authority cannot be said to be justified and proper and in accordance with law.

It has further been submitted that the State in order to flout the provision of Rule 43(b) of the Pension Rules has purposely not initiated a fresh proceeding under Rule 43(b) of the Pension Rules reason being that as per the explanation given under Rule 43(b) of the Pension Rules there is applicability of period of limitation to initiate a proceeding under Section 43 (b) of the Pension Rule only in a case when the cause of occurrence of charge if is falling within four years of superannuation but in the given facts

of the case, the charge which has been levelled against the petitioner is much prior to four years and that is the reason instead of initiating a proceeding afresh, which can only be said to be in accordance with law if permissible, the State has chosen to issue show cause notice deeming the earlier proceeding initiated by issuing memorandum of charge vide Memo No. 302 dated 24.01.2009 deemed to have been converted and hence the action of the State cannot be said to be proper. 5. In response thereto, the learned State counsel has submitted that the aforesaid ground, as has been agitated on behalf of respondent-writ petitioner, cannot be said to be acceptable reason being that the proceeding which was initiated by way of provision as contained under Rule 43(b) of the Pension Rules has never been questioned by the writ petitioner and as such at this stage the same cannot be allowed to be agitated on behalf of respondent. 6. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by learned Single Judge in the impugned order. 7. This Court after taking into consideration the reliance as has been put by learned counsel for the appellant upon the judgment rendered by Co-ordinate Division Bench of this Court in the State of Jharkhand &

Ors Vs. Jitendra Prasad Sharma (supra) which having not been disputed by learned counsel for the writ petitioner, however, the ground has been raised about the very sustainability of the show cause notice dated 21.01.2014 based upon which 5% pension has been withheld from the pension of the writ petitioner, is now proceeding to examine the very authority for issuance of show cause issued in exercise of Rule 43(b) of the Pension Rules by which 5 % pension has been withheld, which was the subject matter before the learned writ Court.

Reference, in this regard be made to the judgment rendered in K. Lubna vs. Beevi & Ors as reported in (2020) 2 SCC 524, wherein at paragraph 10, the Hon’ble Apex Court held as under: “10.On the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law.” 10. This Court is now proceeding to examine as to whether the issue which has been agitated on behalf of writ petitioner that once the order of punishment has been quashed and set aside by the Court in exercise of power conferred under Article 226 of the Constitution of India, the entire departmental proceeding will stand terminated and, therefore, the State has got no jurisdiction to issue notice under the provision of Rule 43(b) of the Pension Rules treating the proceeding initiated under CCS Rules deemed to have been converted into Pension Rules. 11. The same is whether a legal issue or factual issue has to be decided on the basis of legal position based upon the judicial pronouncements in order come to the conclusive finding as to whether the issue which has been agitated in this regard is the legal issue warranting this Court to entertain the said issue at the stage of intra court

appeal. Therefore, it requires to refer herein the provision of Rule 43(b) of the Pension Rules, which reads as under: “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 or negligence, during his service including service rendered on re-employment after retirement. Provided that;- (a) such departmental proceeding , 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 not 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 places as the State Government may direct and in accordance with 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 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.”

It is evident from the provision of Rule 43(b) of the Pension Rule that the State is empowered to withhold pension, whole or part of it, 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 or negligence, during his service including service rendered on re-employment after retirement.

The aforesaid power has been conferred to the State subject to certain rider, as would be evident from proviso to Rule 43 (b) of the Pension Rules, as quoted and referred hereinabove. One of the riders, as under proviso (a) (ii), that such departmental proceeding, if not instituted while the Government servant was on duty either before retirement or during re- employment – (ii).shall not be in respect of an event which took place not more than four years before the institution of such proceedings. 12. The learned Single Judge, taking into consideration the proved charges having not been found to be related with pecuniary loss, interfering with the impugned order of punishment imposed vide order dated 20.03.2015 by which

decision was taken to withhold 5% pension taking into consideration the provision of Rule 43(b) which contains provision that whole or part of pension can be withheld only in a case where the State exchequer has sustained pecuniary loss, quashed the impugned order of punishment. 13. Learned counsel for the appellants-State, questioning the order passed by learned Single Judge, has relied upon the judgment rendered in the State of Jharkhand vs. Jitendra Prasad Sharma (supra) passed in L.P.A. No. 79 of 2013 which has been passed taking aid of judgment passed by Hon’ble Supreme Court in the case of Union of India Vs. B. Dev reported in (1998) 7 SCC 691, wherein it has been laid down that the applicability of Rule 43(b) of the Jharkhand Pension Rules cannot be restricted only to the cases in which pecuniary loss has been suffered by the Government.

service and as to whether a fresh decision is required to be taken by the State for conversion of the said proceeding initiated under CCS Rules to that of Pension Rules. 16. The aforesaid issue has been dealt with by the Full Bench of the Patna High Court in the case of Shambhu Saran Vs The State of Bihar reported in 2000(1) PJLR 665 [FB] wherein it has been held that what would be the situation if a departmental proceeding has been initiated but in course thereof if the public servant concerned attained the age of superannuation.

For ready reference, the relevant paragraph no. 8 of the judgment is quoted as under: "… In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue." 17. The Full Bench of the Patna High Court has considered that aspect of the matter by taking into consideration the fact that whether there is requirement to pass a fresh order by the State or disciplinary authority for conversion of the proceeding, if initiated under the Central Civil Services (Classification, Control and Appeal) Rules, 1930 and in course thereof if the concerned person has retired.

The Patna High Court has decided that if the proceeding has been initiated under the CCS Rules, but in

the meanwhile the public servant retires there is no requirement to pass decision for conversion of departmental proceeding initiated under the CCS Rules to that of Pension Rule.

It emerges from the provision of Rule 43(b) read with the judgment rendered by Full Bench of Patna High Court in the case of Shambhu Sharan (Supra), that the disciplinary authority/State will have two recourse to be taken against the delinquent employee against which, the departmental proceeding has been initiated but in course of its pendency if the delinquent employee has attained the age of superannuation and retires from Service, then as per the judgment pronounced by Full Bench of Patna High Court in the case of Shambhu Sharan (Supra), the same will be deemed to have been converted under the provision of Rule 43(b) of the Pension Rules and in that view of the

matter the requirement will be to issue notice asking the delinquent employee-pensioner as to why the pension, full or part of it, be not withheld and it only thereafter the State will have the authority to withheld whole or part of pension. 19. The second situation will be as per the provision of Rule 43(b) of the Pension Rule will be that if no proceeding has been initiated while the delinquent employee is in service and he superannuates on attaining the age of superannuation then a fresh proceeding under the provision of Rule 43 (b) of the Pension Rule can be initiated if the cause of action/alleged misconduct is within the period of four years from the date of superannuation till the date of its occurrence, since as per explanation no. II, the provision under 43 (b) can only be taken recourse of if the cause of action falls within a period of 4 years in between the cause of action and the date of superannuation. 20. This Court, after having discussed the legal position with the factual aspect, is of the view that the issue which has been raised on behalf of appellant since pertain to the jurisdiction of issuance of the notice under the provisions of Rule 43(b) of the Pension Rules, therefore, the same is being considered to be a legal issue as also the jurisdictional issue. There is no dispute about the settled position of law that the legal issue can be raised at any stage of the proceeding. So as to the jurisdictional issue can

be raised at any stage of proceeding. Since the jurisdictional issue goes to the root of the lis, as has been held by Hon’ble Apex Court in the judgment rendered in Balvant N. Viswamitra & Ors Vs. Yadav Sadashiv Mule (Dead) through LRs [(2004) 8 SCC 706], in particular paragraph 9, which reads as under: “9.The main question which arises for our consideration is whether the decree passed by the trial court can be said to be “null” and “void”. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.”

(Own emphasis) 21. This Court, after taking into consideration the aforesaid legal issue is of the view that the objection, which has been raised on behalf of State-appellant that the issue of jurisdiction of show cause notice issued under the provisions of Rule 43(b) of the Pension Rules cannot be allowed to be agitated at the stage of intra court appeal is having no force and accordingly rejected.

This Court considering the said issue to go to be root of the issue and as such proceeding to examine the aforesaid issue on the basis of settled position of law and the applicability of provision of Rule 43(b) of the Pension Rules. 22. This Court is now proceeding to consider the following issues: (I).If the order of punishment, having been passed in the regular departmental proceeding, is quashed by the Court of law, what would be the fate of that departmental proceeding? (II).Whether the State can be allowed to serve notice upon the petitioner to inflict punishment of withholding pension in exercise of power conferred under Rule 43(b) of the Pension Rules once the proceeding which has been initiated has culminated by passing the order of punishment has been quashed and set aside by the writ Court treating the proceeding deemed to have been converted from proceeding initiated under CCS Rules to that of Pension Rules. (III).Whether the liberty having been granted by the learned Single Judge to the State-appellants to proceed afresh in accordance with law, can issuance of show cause notice after the order of punishment having been quashed by the writ Court in W.P. (S) No. 4058 of 2012 by virtue of order dated 07.05.2013 be said to be issued in accordance with law. (IV).Whether the notice issued under Rule 43(b) of the Pension Rules having not been challenged by the respondents the writ petitioner can be allowed to be considered at this stage?

Since all the issues are inter-linked, therefore they are being taken up together to be answered.

The writ petitioner participated in the departmental proceeding and defended the charge. The enquiry officer submitted enquiry report, wherein out of ten charges, charge at column nos. 3, 4, 8(ii), 9 and 10 have been partially proved; whereas charges at column nos. 1, 2 8(i), 8(iii), 8(iv), 8(v), 8(vi), 8(viii) and 8(ix) were found to be proved. Based upon the enquiry report, the disciplinary authority imposed punishment vide order dated 07.09.2010, whereby the petitioner was inflicted with the punishment of (i).Stoppage of two annual increments with cumulative effect and (ii).He was debarred for promotion for two years from the date of entitlement.

The writ petitioner questioned the said punishment order by filing writ petition being W.P. (S) No. 4058 of 2012, which was allowed vide order 07.05.2013 by which the

impugned order of punishment as contained in Memo No. 2764 dated 07.09.2010 was quashed and set aside, granting liberty to the respondents-State to proceed against the petitioner in accordance with law.

Before passing of order dated 07.05.2013 in W.P. (S) No. 4058 of 2012, the writ petitioner has already superannuated on 30.04.2013 from the post of Chief Engineer, as such he represented before the authorities for grant of pensionary benefit, but, instead of granting retirement benefits, the State authorities issued show cause notice vide memo dated 21.01.2014 asking the petitioner to reply as to why the writ petitioner be not punished in exercise to power conferred to the State under Rule 43(b) of the Jharkhand Pension Rules.

The writ petitioner responded to the said show cause but the same having not found to be satisfactory, impugned order of punishment was passed vide order 20.03.2015 whereby and whereunder 5% pension has been decided to be withheld in exercise of power conferred under Section 43(b) of the Jharkhand Pension Rules.

The show cause notice dated 21.01.2014 and impugned order of punishment dated 20.03.2015 were challenged by the writ petitioner by filing writ petition being W.P. (S) No. 1608 of 2014, which was disposed of vide order dated 16.05.2016 by which the impugned order of

punishment dated 20.03.2015 was quashed with a direction to the respondents to pay admissible pension to the petitioner forthwith and admissible pension against deduction within 16 weeks.

For ready reference, the operative part of order dated 16.05.2016 passed in W.P. (S) No. 1608 of 2014 is quoted as under:

“8. Having given my anxious consideration to the rivalized submissions of the respective parties, I am of the considered view that the impugned order dated 20.03.2015 pertaining to imposing of punishment of withdrawal of 5 % pension under Rule 43 (b) of the Jharkhand Pension Rules suffers from the following infirmities: (I).After the threadbare analysis of the enquiry report, there is no shadow of doubt or debate that out of ten charges, charges at column nos. 3, 4, 8 (ii), 9 and 10 have been partially proved; whereas charges at column nos. 1, 2, 8(i), 8(iii), 8(iv), 8(v), 8(vi), 8(viii) and 8(ix) appear to have been proved. But from none of the proved charges, there is any indication of pecuniary loss to the State exchequer by the omissions and commissions of the petitioner. On that score, Rule 43 (b) of the Jharkhand Pension Rule is remotely attracted. (ii).As per Rule 43 (b) of the Jharkhand Pension Rule, one of the ground of withholding of pension is grave misconduct. Admittedly, the petitioner has not been fully exonerated from the charges but the proved charges do not appear to be so grave so as to entail forfeiture of pension. No doubt the petitioner in exercise of his official duty acted contrary to Government codal provisions, Rules and Regulations and there has been some irregularities but those dereliction of duties cannot be construed to constitute offence of grave misconduct so as to put the petitioner to the detriment so as to violative of Article 300-A of the Constitution of India. Notwithstanding the grounds stated in the preceding

paragraphs, Provisions of Jharkhand Pension Rules has not been scrupulously followed, which has rendered the proceeding invalid. 9. In view of the aforesaid facts and reasons as discussed in the foregoing paragraphs, the impugned order dated 20.03.2015 is hereby quashed and set aside. The respondents are directed to pay the admissible pension to the petitioner forthwith. So far as arrears of pension on account of deduction of 5 % pension is concerned, the respondents are directed to pay the same within a period of 16 weeks from the date of receipt/production of copy of this order. 10. With the aforesaid observations and directions, the writ petition stands disposed of.”

The process has been given for initiation for conducting a full-fledged enquiry in order to provide opportunity to defend to the concerned delinquent employee and the enquiry officer is to submit enquiry report before the disciplinary authority for taking final decision.

For ready reference, provision of Rule 55-A is required to be made, which reads as under: “55-A. Without prejudice to the provisions of rule 55, no order imposing the penalty specified in clauses (i), (ii) or (iv) of rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court-Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed: Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.”

It is evident that the procedure has been laid down under Rule 55-A of the CCS Rules, which suggests that the departmental proceeding once initiated by issuance of memorandum of charge against the delinquent employee will be said to culminated when the order of punishment is passed. 26. Herein, in the facts of the given case, the departmental proceeding was initiated against the delinquent employee on 24.01.2009 by serving charge upon the petitioner, which culminated after passing order of punishment dated 07.09.2010. The order of punishment dated 07.09.2010 has been quashed and set aside by the writ Court vide order dated 07.05.2013 in W.P. (S) No. 4058

of 2012, however, with a liberty to proceed afresh to the State-appellant to proceed in accordance with law. The question would be that what would be the consequence and what action is to be taken by the State in pursuance to the liberty granted by Co-ordinate learned Single Judge of this Court by virtue of order dated 07.05.2013 in W.P. (S) No. 4058 of 2012; meaning thereby that what will be the action to be taken by the State to be in accordance with law.

Admittedly, the day when the order of punishment was passed the proceeding stands terminated and as such the day when the order of punishment has been quashed, the entire proceeding will be said to be terminated, reason being that the memorandum of charge is to be followed by the enquiry and the enquiry officer is to submit its report before the disciplinary authority and the disciplinary authority while accepting the report is to inflict punishment, as enshrined under the provision contained list of punishments.

Therefore, the impugned allegation as contained in the memorandum of charge will be said to be merged with order of punishment after acceptance of the finding recorded by the enquiry officer; meaning thereby, the day when the order of punishment has been passed the charge leveled against the writ petitioner by virtue of memorandum of charge found to be proved by the enquiry officer, the

charge will be said to be merged with the order of punishment. As such, if the order of punishment will be quashed and set aside on the basis of applicability of merger the entire proceeding will be said to be terminated. 27. Here, in the given facts of the case also, the order of punishment having been quashed vide order dated 07.05.2013 in earlier round of litigation in W.P. (S) No. 4058 of 2012 and prior to that the writ petitioner has retired from service and as such the order of punishment having been quashed after superannuation of the writ petitioner, the question which requires to be considered that the order of punishment once quashed, after superannuation of the writ petitioner can the said proceeding deemed to have been converted under the provision of Rule 43(b) of the Pension Rules as in the given facts of the case wherein show cause notice has been issued under Rule 43(b) of the Pension Rules for withholding 5 % pension.

The law has already been settled by Full Bench of Patna High Court in the judgment rendered in Shambhu Sharan (supra) wherein the proceeding initiated under the CCS Rules deemed to have been converted if in course of pendency of the departmental proceeding the delinquent superannuates. But that is not the case herein since the after superannuation of the writ petitioner the order of

punishment passed against the petitioner has been quashed and hence it is not available for the State- respondent to convert the proceeding under Section 43(b). There may be a fresh proceeding under Section 43(b) of the Pension Rules subject to the issue of limitation as provided proviso a(ii) of Rule 43(b) of the Pension Rules. But that can also not be allowed to be conducted in view of the fact that offence alleged to have been committed by the writ petitioner in the year 2007 and the writ petitioner has retired on 30.04.2013, hence, it is a barred by limitation of four years, therefore, not permissible under the provisions of explanation as under proviso to a(ii) of the Rule 43(b) of the Pension Rules.

The State has issued notice under the provisions of Rule 43(b) of the Pension Rules on the basis of liberty having been granted asking the State to proceed in accordance with law. 28. The word ‘in accordance with law’ is having bearing in the instant case. There is no dispute that a decision or action is required to be taken strictly in accordance with law then only it would be stated to be ‘in accordance with law’. It is also settled that there cannot be any decision without any authority in deviation of the statutory provision and the requirement of law is that a thing is to be done strictly in the manner and made, as has been made in

statute, as has been held by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Singhara Singh and Ors., reported in AIR (1964) SC 358, wherein it has been held at paragraph 8 as under: “....its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted....”

Reference has also made to the judgment rendered by the Hon'ble Apex Court in the case of Babu Verghese and Ors. vs. Bar Council of Kerala and Ors., reported in (1999) 3 SCC 422, wherein it has been at paragraphs 31 & 32 as under: “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: “[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.” 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law.”

Reference to the judgment rendered by the Hon'ble Apex Court also needs to be made in the case of

Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., reported in (2002) 1 SCC 633, wherein it has been held at paragraph 27 as under: “..... it is a normal rule of consideration that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself....”

Reference has also made to the judgment rendered by the Hon'ble Apex Court in the case of State of Jharkhand & Ors. vs. Ambay Cements & Anr., reported in (2005) 1 SCC 368, wherein it has been held at paragraph 26 as under: “....it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed.....”

Reference has also made to the judgment rendered by the Hon'ble Apex Court in the case of Zuari Cement Ltd. vs. Regional Direction ESIC Hyderabad & Ors. (in Civil Appeal No.5138- 40/2007), reported in (2015) 7 SCC 690, wherein it has been held 25 at paragraph 14 as under: “14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that: (SCC p. 378, para 26)

26.... it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.”

It is the settled position of law that a thing is required to be done strictly in pursuance to the provisions of law, decision if any taken by deviating from the statute, the same will be without jurisdiction. 29. Here, admittedly in this case the impugned punishment order having been quashed and set aside by the learned Single Judge and as such as has been held by us hereinabove that once order of termination is quashed, the memorandum of charge including the finding recorded by enquiry officer will be merged to the order of punishment. 30. The order of punishment having been quashed in the facts of the given case, therefore, the same does imply that the memorandum of charge including the finding recorded by enquiry officer has also been not in existence since the order of punishment itself has been quashed and set aside which is the culmination of the finding recorded by enquiry officer based upon the allegation of charge by virtue of memorandum of charge served upon the writ petitioner. 31. The question of issuance of notice under the provisions of Rule 43(b) of the Pension Rules will only be

said to be within the law if the writ petitioner would have retired during the pendency of departmental proceeding initiated under the provisions of CCS Rules but that is not the case herein since the writ petitioner has been punished while he was in service and as such he filed writ petition being W.P. (S) No. 4058 of 2009 which was disposed of vide order dated 07.5.2013, however, in the meantime, the petitioner retires from service. As such the consequence of quashing of order of punishment dated 07.09.2010, by virtue of order passed by this Court dated 7.5.2013 in W.P. (S) No. 4058 of 2013 will be that the entire departmental proceeding stand terminated. Therefore, there is no occasion for the State to issue notice by taking recourse of provision contained under the provisions of Rule 43(b) of the Pension Rules once the writ petitioner has superannuated form service as also the order of termination has been quashed vide order dated 7.5.2013.

The matter would have been different if the order of punishment would have been quashed while the writ petitioner was in service. Under such eventuality, the proceeding will be deemed to be converted under the provisions of Rule 43(b) of the Pension Rules but that is not the case herein. Therefore, according to our considered view, the notice issued under the provisions of Rule 43(b) of the Pension Rules basis upon which 5% pension has been

withheld is without any authority of law and cannot be considered to be in consonance with the provisions of Rule 43(b) of the Pension Rules and as such the action of the State in issuing the notice under the provisions of Rule 43(b) of the Pension Rules is held to be without jurisdiction and accordingly not sustainable in law. 32. The second recourse was also available with the disciplinary authority if the cause of action was within a period of four years from the date of superannuation, as per provision contained under the provisions of Rule 43(b) of the Pension Rules but that is also not the case herein since after superannuation of the writ petitioner the order or punishment has been passed on 07.05.2013.

Herein, since cause of action shown in the memorandum of charge is of the year 2007 and the show cause notice, after superannuation was issued on 21.01.2014, which is admittedly beyond the period of four years.

As such that recourse was also not available to the State to initiate a fresh proceeding under the provisions of Rule 43(b) of the Pension Rules. 33. This Court, on the basis of the discussions made hereinabove is of the view that since this Court has come to the conclusive finding holding the issuance of notice issued under the provisions of Rule 43(b) of the Pension Rules to

be without jurisdiction the action based upon the said show cause notice withholding 5% pension is also held to be illegal and in that view of the matter the decision of withholding pension cannot be considered to be in accordance with law said to have been passed in terms of order passed by learned Single Judge in W.P. (S) No. 1608 of 2014. 34. This Court, after having discussed the aforesaid factual aspect vis-a-vis the legal position and after taking into consideration the finding recorded by learned Single Judge coupled with the ratio laid down by Division Bench in the case of State of Jharkhand & Ors Vs. Jitendra Prasad Sharma (Supra), is of the view that even though Rule 43(b) of the Pension Rules will be held to be applicable in a case of proved misconduct irrespective of the fact as to whether the state has occurred pecuniary loss or not, but leaving apart that question, this Court, as per the discussions made herein above, is of the view that issuance of show cause notice dated 21.01.2014, in exercise of power conferred under Rule 43(b) of the Pension Rules cannot be said to be proper and in accordance with law. As such it cannot be said to be in terms of order passed by learned Single Judge. 35.

However, the learned Single Judge has interfered with the impugned order on the basis of fact that

there was no pecuniary loss sustained to the State but the said ground having not been found available in view of the judgment of Division Bench of this Court in the case of The State of Jharkhand & Ors Vs. Jitendra Prasad Sharma (supra) (supra) as referred hereinabove, and as such the aforesaid finding according to our considered view cannot be held to be proper.

But we are of the view even the aforesaid part of the finding is held to be not proper but there is no reason to interfere with the outcome of the writ petition whereby and whereunder the learned Single Judge has interfered with the impugned order by quashing and setting aside the impugned order of punishment, which is held to be proper in view of the fact that the notice issued under the under the provisions of Rule 43(b) of the Pension Rules, itself is held to be without jurisdiction and therefore, any decision taken on the basis of a notice which suffers from jurisdictional error no jurisdiction and not in consonance with the law, the same cannot be said to be in accordance with law.

Therefore, the finding so recorded by learned Single Judge requires no interference by this Court. 36. Accordingly, the instant intra-court appeal fails and is dismissed.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Alankar/- A.F.R.