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2005 DIGILAW 766 (JHR)

Jitendra Kumar Srivastava v. State Of Jharkhand

2005-10-06

SUDHANSU JYOTI MUKHOPADHAYA

body2005
ORDER S.J. Mukhopadhaya, A.C.J. 1. This application has been preferred by the petitioner for directions on the respondents for grant of the following benefits to him : (A) Arrears of pension after finalisation and fixation of the same (B) Full amount of Gratuity (C) Leave Encashment (D) Salary for the period not paid and (E) Benefit of Assured Career Progression. 2. The petitioner was in the services of the State in the Animal Husbandry Department and having made an accused in a criminal case, "commonly known as Fodder Scam case", he was suspended on 30.1.2002. While in custody, he superannuated from service on 31.8.2002. After retirement, he has been paid Provisional Pension (90%). His grievance is that the respondents had not paid him the gratuity amount, leave encashment amount, Salary for certain period during which he had worked nor his for grant of the benefit to Assured Career Progression had been considered by the respondents. 3. Counsel for the State submitted that the criminal proceeding, if vitiated and pending against an employee during his service career, shall be deemed to be a proceeding under Rule 43(b) of the Bihar Pension Rules, 1950. He further submitted that as per the Government Circular No. PC 11-40-28/74-9144 B dated 22nd August, 1974, as modified by the subsequent Circular dated 31st July, 1980, he has been paid 90% of the provisional pension and that in terms of the Clause (3) of the said Circular dated 22nd August, 1974 (Annexure-E to the counter- affidavit of the respondent Nos. 1 to 3, the amount of gratuity is not payable to the petitioner, till completion of the proceeding and its final decision. 4. Counsel for the Accountant General has also relied on a Circular contained in letter No. 3/R-1-108/39 Ka-20233 dated 8th November, 1978, wherein the aforesaid decision was reiterated and it was ordered not to pay the amount of gratuity, till the final decision in the criminal proceeding, treating the same to be a proceeding under Rule 43(b) of the Bihar Pension Rules. 5. Counsel for the petitioner, referring to a recent Resolution of the Finance Department, being memo No. 3014 dated 31st July, 1980 (Annexure-G to the counter-affidavit of the respondent Nos. 5. Counsel for the petitioner, referring to a recent Resolution of the Finance Department, being memo No. 3014 dated 31st July, 1980 (Annexure-G to the counter-affidavit of the respondent Nos. 1 to 3), relating to payment of Pension and Gratuity, in case of pendency of criminal cases against an employee, submitted that at Clause 7 therein, making the reference of Rule 43(b) of the Bihar Pension Rules, it has been provided that where there is no likelihood of the completion of the criminal proceeding till the time of retirement, in such cases, provisional pension upto 90% may be paid and that at Clause 8 therein, guidelines for payment of provisional gratuity has also been given. 6. So far as payment of leave encashment is concerned, counsel for the State has, relying on a Resolution of the Finance Department (Government of Bihars memo No. 3//F-2-01/93/4364/B dated 6th July, 1993), submitted that in 2nd paragraph therein, certain instructions have been given to withhold the amount of leave encashment till the final decision in the Departmental/ Criminal Proceeding. But the counsel for the State has failed to show any Rule/Guideline by which the State Government can recover any amount of leave encashment paid provisionally as per aforesaid resolution, if the employee is found guilty in a proceeding. 7. So far as Rule 43(b) of the Bihar Pension Rules is concerned, it empowers the State Government to withhold or withdraw pension or any part thereof, permanently or for a specified period, and can order for recovery from a pension for the whole and/or part of any pecuniary loss caused to the Government if the pensioner is found in the departmental proceeding or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service. The definition, "Pension includes gratuity", has been provided in Rule 27 of the Bihar Pension Rules, There is no rule/guidelines for recovery of the amount of leave encashment paid provisionally from a pensioner and therefore, in absence of any such rule/ Guideline for recovery, the question of withholding the amount of leave encashment does not arise. 8. The definition, "Pension includes gratuity", has been provided in Rule 27 of the Bihar Pension Rules, There is no rule/guidelines for recovery of the amount of leave encashment paid provisionally from a pensioner and therefore, in absence of any such rule/ Guideline for recovery, the question of withholding the amount of leave encashment does not arise. 8. So far as grant of promotion, during the pendency of criminal proceeding against the petitioner, is concerned, learned Counsel for the petitioner relied on a Circular contained in letter No. 3053, dated 24th September, 1998, but the same is not mandatory in nature. Moreover, it is the settled principle that no person can claim the benefit of promotion merely on the ground that he is eligible for the same. Where a criminal case is pending against a Government official, particularly with the allegation of causing loss to the State Exchequer, it is always open to the State Government to await the final decision of such criminal case, therefore, it is for consideration of the competent authority whether an accused employee is to be promoted to the higher post/grade or not. 9. In the circumstances, while this Court is not inclined to give any, finding or direction with regard to grant of the benefit of Assured Career Progress or finalisation of his pension till the final decision in the criminal case pending against him, remit the case to the respondents to decide the claim of the petitioner for payment of Provisional Pension, Gratuity in terms of the Resolution No. 3014 dated 31st July, 1980, he will also decide the claim for payment of Leave Encashment Amount in terms with the guidelines. So far as payment of salary is concerned, the petitioner, if actually worked but not paid salary for any particular period, may bring this fact to the notice of the Secretary, Animal Husbandry and Fisheries Department, Government of Jharkhand, who, in his turn, will decide the claim of payment of admitted dues. All these exercises should be completed within three months from the date of receipt/ production of a copy of his order. It will, however, be open to the petitioner to ask for payment of the rest of the benefits after completion of the criminal case pending against him, if he is acquitted. With the aforesaid observations and directions, this application stands disposed of.