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2002 DIGILAW 1217 (JHR)

Shankar Ram v. State Of Jharkhand

2002-12-04

SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT S.J. Mukhopadhaya, J. 1. The petitioner who was in the services of the State, retired on 31st January, 2001 from the post of Clerk. He having not paid the retiral benefits like pension, gratuity, leave encashment etc. and salary for the period from 21st June, 2000 to 31st July, 2000, preferred a writ petition before this Honble Court in WP (S). No. 4624 of 2001. A Bench of this Court vide order dated 21st September, 2001 directed the Civil Surgeon-cum-Chief Medical Officer, Palamau to dispose of the claim, as made by the petitioner in his representation. 2. After the decision aforesaid, the Civil Surgeon-cum-Chief Medical Officer, Palamau disposed of the representation vide impugned Memo No. 1834 dated 18th December, 2001 by which while pay for the period 21st June, 2000 to 30th July, 2000 has been allowed, the prayer for regularization of the service for the period from 31st July, 2000 to 31st December, 2000 has been rejected, the gratuity and leave encashment amount have been withheld and direction given to recover certain amount from leave encashment and gratuity and to pay only 75% of pension as provisional pension w.e.f. 1st February, 2001 on humanitarian ground. 3. According to the respondents, the date of birth of petitioner in the Service Book was recorded as 29th January, 1943 which was interpolated by the petitioner and changed as 29th January, 1945. When this came to the notice of the Civil Surgeon, Palamau, he vide Memo No. 1372 dated 15th September, 2001 gave the petitioner opportunity to substantiate his claim regarding date of birth. 4. Further, according to the respondents, in the original Service Book a paper has been pasted wherein it has been mentioned that the petitioner passed the Hindi Noting and Drafting Examination, as communicated, vide letter No. 1506 dated 31st October, 1966. But, from perusal of letter No. 1506 dated 31st October, 1966, it was found that the letter does not contain the name of the petitioner. The entry in this regard having made in the year 1977 and on that basis, the petitioner having granted increments, it is to be presumed that the petitioner misappropriated a sum of Rs. 3,34,747/-, as withdrew towards increments, though he was not entitled. 5. The entry in this regard having made in the year 1977 and on that basis, the petitioner having granted increments, it is to be presumed that the petitioner misappropriated a sum of Rs. 3,34,747/-, as withdrew towards increments, though he was not entitled. 5. Though the aforesaid allegations have been made in the counter affidavit but curiously, neither the photo stat copy of the Service Book has been enclosed, nor copy of the Service Book was produced before this Court, though in the counter affidavit, it is mentioned that it will be produced. 6. There is nothing on the record to suggest that the petitioner misrepresented and obtained increments since 1977. 7. So far as power to withhold any of the amount from the retiral benefits is concerned, such power is vested with the competent authority under Rule 43 (b) of the Bihar Pension Rules, 1950. As per Rule 43 (b), aforesaid though it is open to the State to withhold or curtail full or part pension including Gratuity, no power has been under any Rule vested to the State to withhold/or curtail any amount from the leave encashment. 8. Admittedly, no departmental proceeding was initiated against the petitioner while he was in service. There is nothing on the record to suggest that even after the petitioners retirement, the State Government has initiated any departmental proceeding. After retirement of an employee, the power is vested only with the State Government to initiate such proceeding under Rule 43 (b) for withholding or curtailing of pension/Gratuity. However, such power cannot be exercised in respect to any allegation beyond four years from the date of charge-sheet. 9. In the present case, no proceeding has been initiated by the State Government, as per Rule 43 (b) of the Bihar Pension Rules. No proceeding was initiated by the disciplinary authority against the petitioner before his retirement. The charge, as alleged, in the counter affidavit relates to the year 1977. In this background, the State Government cannot initiate any departmental proceeding under Rule 43 (b) of the Pension Rules. 10. So far as the period during which the petitioner remained absent from duty, the Respondents are bound to determine how it is to be regularized/counted. If it was unauthorized leave, it was well within the jurisdiction of the competent authority to initiate proceeding, if the unauthorized absence from duty amounted to misconduct. 10. So far as the period during which the petitioner remained absent from duty, the Respondents are bound to determine how it is to be regularized/counted. If it was unauthorized leave, it was well within the jurisdiction of the competent authority to initiate proceeding, if the unauthorized absence from duty amounted to misconduct. Otherwise, the competent authority is bound to state as to how the leave period to be treated i.e. earned leave, half earned leave and leave without salary, as per provisions of the Bihar Service Code, 1952 and is also bound to determine the question what salary the employee is entitled for such period. 11. In this background, the order passed by the Civil Surgeon-cum-Chief Medical Officer, Palamau, vide Memo No. 1834 dated 18th December, 2001 being illegal and without jurisdiction, is set aside. 12. The Respondents are directed to pay the petitioner the full Pension, Gratuity, leave encashment etc. to which the petitioner is entitled, within a period of two months from the date of receipt/production of a copy of this order. On failure, the respondents will be liable to pay interest @ 5% from the date of retirement. 13. The Civil Surgeon-cum-Chief Medical Officer, Palamau is also directed to determine the question as to how the period from 31st January, 2000 to 30th December, 2000 to be counted and what salary to which the petitioner will be entitled for such period as per the provisions of Bihar Service Code, within a period of three months and if any amount is found payable, be paid in favour of the petitioner within a month thereof. 14. The writ petition is allowed with the aforesaid observations and directions.