IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP (S ) No. 6059 of 2008
Lakshman Singh .... Petitioner
Versus
State of Jharkhand & others .... Respondents
Coram : HON'BLE MR. JUSTICE J.C.S.RAWAT
For the petitioner/appellant(s) : Mr. J.N.Pandey
For the opposite party/ respondents : JC to Sr. SC 1.
16/11/2009
. In this writ petition filed under Article 226 of the
Constitution of India, the petitioner seeks issuance of direction to the
respondents to sanction and pay pension and gratuity to the petitioner
who has retired from service on 29..2.2008. Prayer has also been made to
direct the respondents to sanction and pay all retiral benefits including
General Provident Fund, group insurance and unutilized earned leave
encashment to the petitioner and also to pay interest on the amount of the
retiral benefits which have been withheld by the respondents.
2. The respondents have filed counter affidavit in which
they have taken a plea in para 10 that full pension and other benefits
could not be granted because of the fact that the Commercial Taxes
Department, Govt. of Jharkhand has already initiated proceeding u/s 43(b)
of the Jharkhand Pension Rules because the petitioner is found to be
involved in the matter of revenue loss to the State amounting to Rs. 12
crores approximately and that as per Letter No. 194 dated 16.06.2008 of the
Finance Department, Government of Jharkhand, when any departmental
enquiry is pending against a Government servant, only 75% of the pension
can be sanctioned as provisional pension.
3. I have heard learned counsel for the parties and
pursued the records.
4. Learned counsel for the petitioner contended that
though the petitioner superannuated on 29.2.2008, his pension, gratuity or
other post retiral benefits have not been paid to him and the respondents
without rhyme or reason have withheld the payment of the dues payable
to the petitioner.
5. Learned counsel for the respondent State contended
that departmental proceeding is pending against the petitioner who is
alleged to have committed irregularities of approximately 12 crores of
rupees and therefore after retirement of the petitioner, enquiry
proceedings against him has been initiated which is in progress.
6. Learned counsel for the petitioner contended that even
if enquiry is pending against the petitioner, post retiral benefits cannot be
withheld in view of the judgment of this Court in the Case of Dr. Dudh
Nath Pandey Vs. State of Jharkhand and others ( 2007(4) JCR 1 ( Jhr.) ( F.B).
7. Perusal of the records reveal that after pronouncement
of the aforesaid judgment of this Court, executive order has been issued
by which it has been directed that where departmental proceedings have
been initiated against a person found involved in the matter of loss of
revenue caused to the State and the proceeding is pending, 75% of the
pension can be sanctioned as provisional pension and payment of rest of
the amount shall remain withheld. It is pursuant to that decision that the
respondents have withheld payment of the post retiral benefits payable to
the petitioner.
8. After going though Rule 43(a) and Rule 43(b) of the
Bihar Pension Rules, and the Circular issued by the Government by which
direction has been given to the Government to withhold sanction of the
amount of pension, reference was made before Full Bench of this Court as
to whether in absence of any guidelines, the State Government has power
for withholding the gratuity and leave encashment on the ground of
pendency of judicial or departmental proceedings and the full Bench has
held that under Rule 43(a) and 43(b) of the Bihar Pension Rules, there is no
power for the Government to withhold gratuity and pension during the
pendency of the departmental proceeding or criminal proceeding .
9. In view of the above, it is apparent that the Rules and
Executive order do not empower to withhold gratuity and pension during
the pendency of the departmental proceeding or criminal proceedings.
Thus, the Circular issued by the Government as mentioned in para 10 of
the counter affidavit is liable to be ignored in view of the decision
rendered in the case of Dr. Dudnath Pandey ( supra).
10. Since the controversy as has been raised, has been
resolved by this Court in the case reported in ( 2007(4) JCR 1 ( Jhr.) ( F.B),
the petition is squarely covered by the said decision in the aforesaid case.
11. This writ petition is accordingly disposed of in terms of
the aforesaid Full Bench decision of this Court and the petition is liable to
be allowed.
This writ petition is allowed. The respondents shall
consider to pay the amounts payable to the petitioner within a period of
three months from the date of presentation of a copy of this order in the
light of the observations made above.
Ambastha/ (J.C.S.Rawat,J.)