Shailendra Kumar Sinha vs State Of Jharkhand & Ors. on 11 February, 2009

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P.(S) No.374 of 2004

             Shailendra Kumar Sinha                           .............Petitioner
                                       Versus
             The State of Jharkhand & Others                  .............Respondents

             CORAM : HON'BLE MR. JUSTICE AJIT KUMAR SINHA

             For the petitioner  :      Mr. P.P.N. Roy, Advocate
             For the respondents :      Mr. G.P.-III
                                ----------------

09/ 11.02.2009

The present writ petition has been filed for the following reliefs:-

I. For direction upon the respondents to pay forthwith to the petitioner the
retirement benefits, such as Pension, Gratuity, Provident Fund etc.
legally payable to the petitioner who has retired from the post of Junior
Engineer, Rajrappa Section, Road Division, Hazaribagh on 31.1.1997 and
to issue pension payment order which has not yet been issued.
II. For direction upon the respondents to pay outstanding salary to the
petitioner, which has not been paid since December, 1988 to 31.1.1997
(i.e. the date of superannuation), except for the period March, 1995 to
May, 1995 in which initial salary was paid to the petitioner on the
recommendation of Executive Engineer, Road Construction Department,
Road Division, Hazaribagh.

III. For direction to the respondents to pay interest at the rate of 12% per
annum on the amount which is legally payable to the petitioner till the
date of payment as well as litigation cost.

After some arguments, the counsel for the petitioner has drawn my
attention towards a Full Bench judgment of this Hon’ble Court passed in L.
P.A. No.714 of 2004 (Dr. Dudh Nath Pandey Vrs. The State of Jharkhand &
Others) and in particular he has referred to and relied upon paragraph 35 of
the said judgment which is quoted as under:-

“To sum up the answer for the two questions are as follows:-

(i) Under Rule 43(a) and 43(b) of 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. It does not give any power to withhold Leave
Encashment at any stage either prior to the proceeding or after
conclusion of the proceeding.

(ii) The Circular, issued by the Finance Department, referring to the
withholding of the leave encashment would not apply to the
present facts of the case as it has no sanctity of law.
Both the questions are answered accordingly.”

2.

The counsel for the petitioner has further drawn my attention to a
letter issued on 7.2.2009 by the Executive Engineer of Rural Works
Department, Works Division, Ranchi addressed to the Under Secretary,
Government and of the Road Construction Department, Jharkhand wherein it
has been specifically submitted that after considering the entire thing it has
been found and informed that Rs.2,84,983/- is due and there is no advance
against the petitioner.

The counsel for the respondents submit that several notices were given
but he failed to reply, however, there is no whisper in the counter affidavit or
even in the supplementary counter affidavit that disciplinary proceeding for
that matter was actually initiated.

Regard having to the facts and circumstances of the aforesaid case, it
will be in the interest of justice that in the light of the aforesaid judgment
passed by this Hon’ble Court and also the letter No.173 dated 7.2.09 a decision
be taken and payment of admissible due as determined be made in accordance
with law within a period of two months from the date of receipt of a copy of
this order.

This writ petition is accordingly disposed of.

(Ajit Kumar Sinha,J.)

NKC