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2002 DIGILAW 918 (JHR)

Kashi Nath Roy v. State of Bihar

2002-08-23

HARI SHANKAR PRASAD, VIKRAMADITYA

body2002
Judgment Hari Shankar Prasad, J.- This appeal under Clause 10 of the Letters Patent is directed against the Judgement/order dated 15.9.2000 passed in CWJC No. 3928 of 1999(R) whereby the learned Single Judge disposed of the writ application by directing the respondents to make payment of the Provident Fund amount together with statutory interest within a month and further directed that so far claim of leave salary is concerned the same shall be considered by the Court where another writ petition challenging the removal of the petitioner/ appellants from the service is pending. 2. The facts of the case lie in a narrow compass. 3. Petitioner/appellant superannuated from the post of superior judicial service in September 1996 and after his superannuation notification was issued on 2.11.1996 by which he was removed from service. Petitioner/appellant challenged the said order of removal by filing CWJC No. 1917/ 1997, at Patna High Court. However, petitioner also filed separate writ petition in this Court being CWJC No. 3928/1999(R) seeking a direction upon the respondents for payment of Provident Fund amount and leave salary which were not paid to him. The writ petition was heard and disposed of on 15.9.2000 by the impugned judgment. Learned Single Judge directed the respondents to pay Provident Fund amount together with statutory interest, within a month from the date of receipt of copy of this order. So far other claims are concerned, learned Single Judge held that the same will be considered by the Court where the aforesaid writ application challenging• the removal of the petitioner/appellant from service is pending. 4. Mr. P.K. Bhowmik, learned counsel appearing for the appellant assailed the impugned judgment on the ground that the learned Single Judge has erred in law in holding "that the earned leave cannot be with-held on the ground of removal of the petitioner from service. Learned counsel submitted that the removal order of the appellant from service has been passed by the State Government on the recommendation of the Patna High Court and hence the same has been challenged before the Patna High Court. Since, petitioner retired as District Judge from Gumla District and the writ application for payment of retiral benefits has been filed before this Court. 5. On the other hand, Mr. Since, petitioner retired as District Judge from Gumla District and the writ application for payment of retiral benefits has been filed before this Court. 5. On the other hand, Mr. Binod Poddar, learned counsel appearing for the respondent-High Court submitted that the Government Circular issued by the, Finance Department disentitled the petitioner to receive leave encashment since the petitioner has been removed from service in disciplinary rules by way of punishment. Learned counsel submitted that since the payment of leave encashment and other benefits have been with-held because of the removal of the petitioner/appellant from the service, the same shall be payable only after the final decision in the writ petition by which the order of removal from service has been challenged. 6. From perusal of the supplementary affidavit filed by the appellant in this appeal, it appears that the appellant moved the Hon'ble Supreme Court for transfer of his writ petition being CWJC No. 1917/97 from Patna High Court to any other Court on the ground that the appellant's brother is a sitting Judge of the Patna High Court. The Supreme Court, taking into consideration the fact that various Division Benches of the Patna High Court declined to hear the writ petition, ordered that the writ petition be transferred to the Delhi High Court. 7. Be that as it may, the admitted facts are that after superannuation of the petitioner, a notification was Issued on the basis of recommendation of the Patna High Court, whereby the appellant was removed from service. The said order of removal from service is pending in the writ petition now before the Delhi High Court. In such circumstances, the only question which came for consideration is as to whether learned Single Judge was justified in holding that so far payment of leave encashment and other retiral dues are concerned, the same shall be considered by the Court where the aforementioned writ petition is pending. 8. The word "removal" generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer. Discharge from service for misconduct will also entail forfeiture of past service like dismissal or removal from it as in the ordinary parlance the words "dismiss" "remove" or "discharge" mean nothing more or less than the termination of a person's office. It is no doubt that even in the cases of misconduct, it is open for the employer either to hold enquiry and dismiss the employee by way of punishment or discharge him and pay all retrenchment benefits. If the removal of petitioner from the service is up-held in a Court of law then question may arose whether in such a situation appellant would be entitled to other retiral benefits or not. 9. Recently the Supreme Court in the case of State of Orissa and others vs. Kalicharan Mohapatra and another, (1995) 6 SCC 105 was considering a question of validity of with-holding of gratuity" and other retiral benefits of an officer who was a member of Indian Police Service. After considering the relevant provisions of All India Services (Discipline and Appeal) Rules, 1969, their lordships observed: "It is thus clear from an analysis of sub-rules (1) and (2) that where a judicial proceeding is pending against a pensioner for grave misconduct, the Government is entitled to withhold gratuity amount and/or death-cum-retirement gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceeding. It is not necessary that a judicial proceeding should relate to the charge of causing pecuniary loss to the Central or State Government by misconduct of negligence during his service. Sub-rule (1) of Rule 6 specifies two grounds upon which action thereunder can be taken. One is where the pensioner is found guilty of grave misconduct and the other is where he is found to have caused pecuniary loss to the Central or State Government by misconduct and negligence during his service. Sub-rule (2) provides for orders to be made during the pendency of such proceedings. One is where the pensioner is found guilty of grave misconduct and the other is where he is found to have caused pecuniary loss to the Central or State Government by misconduct and negligence during his service. Sub-rule (2) provides for orders to be made during the pendency of such proceedings. It may also be mentioned that neither the All India Service (Death-cum-Retirement) Rules nor the Pension Act, General Clauses Act or the Leave Rules [referred to in Rule 2(2)] define the expression 'misconduct'. It would, therefore, be reasonable and permissible to understand the said expression in Rule 6 aforesaid in the manner defined in the Prevention of Corruption Act." 10. Coming to the instant case, the learned Single Judge has not disallowed the claim of the appellant for payment of leave salary and other dues rather in the peculiar facts and circumstances of the case, learned Single Judge observed• that the entitlement of the appellant for payment of other retiral dues shall be considered by the Court where the writ petition challenging the order of removal of the appellant from service is pending. In my considered opinion therefore, the impugned judgment/order passed by the learned Single Judge does not suffer from any illegality or infirmity. The impugned judgment/ order needs no interference. 11. For the reasons aforesaid, there is no merit in this appeal which is accordingly dismissed. Vikramaditya Prasad. J.-Respectfully being in agreement with the views of my Brother Judge, I wish to say a few words in addition to the judgment of my Brother Judge. In the writ application, the petitioner-appellant prayed for two reliefs, namely, (i) for release of the Provident Fund amount, and (ii) for issuance of a direction for encashment of the un utilized earned leave. It appears that so far the question of release of Provident Fund is concerned, it has already been ordered in his favour. But the learned Single Judge did not order on his prayer for encashment of unutilized earned leave. 2. After the decision rendered in the case of All India Judges case, the age of superannuation of a Judicial Officer also remained at the same age of 58 years, but it could be extended after evaluating the service of the officer concerned. But the learned Single Judge did not order on his prayer for encashment of unutilized earned leave. 2. After the decision rendered in the case of All India Judges case, the age of superannuation of a Judicial Officer also remained at the same age of 58 years, but it could be extended after evaluating the service of the officer concerned. Annexure7 which is a letter of the Registrar General, Patna High Court, issued to the appellant, inter alia, reads as follows: "The Court, having assessed and evaluated your service, have been pleased to decide not to allow the benefit of enhancement of the retirement from 58 years to 60 years." 3. To resolve the question of encashment of unutilized earned leave, reliance has been placed on Annexure-4 by the appellant, a Government Circular issued by the Finance Department contained in letter No.3 PAR 01/86/326, Finance, dated 27.1.1987, provides the conditions for release of unutilized earned leave, which reads thus: " Yeh Adesh Bihar Seva Sanhita ke Niyam 74 ke Antargat Ya Kisi Anurup Niyam Ke Antargat Aakalik (Pre mature) Swekcha Se Nibrit (Voluntary Retirement) Ke Mamla Me Lagu Nahin Hongey, Anushashtnamak Niyamon Ke Adhin Dand Ke Rup Me Anibarha Rup Se Seva Nibrit Karaya Giya Sarkari Karam Chariyon Ko Vi Is Adesh Ka Lav Nahin Milega. " 4. From the aforesaid direction, it is clear that a Government servant, who has been compulsorily retired as under disciplinary provisions, is not entitled to this benefit. Rule 73 of the Bihar Service Code, by which the appellant was governed provides that the date of compulsory retirement of a Government servant is the date on which he attains the age of 58 years. So the compulsory retirement in the present perspective, when there is a provision of grant of extension, which is a general rule, as compulsory retirement at the age of superannuation was an exception, then his compulsory retirement, whether was punitive or not, is relatable to his subsequent removal only one month after the date of his compulsory retirement under Rule 73 and that can be answered in the sub-judice writ, which he filed against his removal in another Court and therefore, unless that writ petition is disposed of, it cannot be said whether the retirement was compulsory by way of punishment, or not. Consequently, the learned Single Judge does not appear to have committed any error of law in not giving any direction upon the respondent to release the un utilized earned leave.