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Jharkhand High Court · body

2008 DIGILAW 708 (JHR)

Kamlakant Das v. State of Jharkhand

2008-07-11

AJIT KUMAR SINHA

body2008
Order The present writ petition has been preferred to quash the impugned order, as contained in Memo No. 2491 dated 28.4.2001, issued by respondent no. 2, imposing punishment of withholding 10% of pension, recovery of amount and withholding the balance salary during the period of suspension. The petitioner has also sought for a direction to forthwith pay him the gratuity, leave safary and pension with interest at the rate of 18% per annum. 2. The facts, as stated by the petitioner, in brief, are set out as under: The petitioner was posted as Block Co-operative Extension Officer and was put under suspension on 7.1.1998. On 30.1.1999 the petitioner superannuated from the post of Block Co-operative Extension Officer. After retirement, a charge-sheet was issued vide letter no. 5127 dated 23.8.1999 and reply was asked for. However, vide memo no. 1512 dated 13.3.2000 respondent no. 2 revoked the order of suspension from the date of his superannuation i.e. 30.1.1999. The petitioner filed his reply to the show cause, denying the charges. It has been submitted that the petitioner had preferred a writ petition being C.WJ.C. No. 480 of 1998(R) against the order of suspension and the Hon 'ble High Court vide its order dated 30.9.1999 was pleased to dispose of the writ application with a direction to the respondents to dispose of the departmental proceedings within six months. It has also been pointed out that vide another letter under memo no. 6487 dated 25.10.2000 the petitioner was served with second show cause notice to which he gave reply and, thereafter, the impugned order under memo no. 2491 dated 28.4.2001 was issued, imposing punishment of withholding 10% of pension, recovery of amount and withholding of balance salary during the period of suspension. 3. The petitioner has challenged the aforesaid order through this writ petition on the ground that the same was unjust, unlawful and without jurisdiction and was also violative of Articles 14 and 16 of the Constitution of India. The petitioner has also challenged the aforesaid order being violative of Rule 139 of the Bihar Pension Rules, 1950 and the same is said to be against the well settled principles of natural justice. 4. The petitioner has also challenged the aforesaid order being violative of Rule 139 of the Bihar Pension Rules, 1950 and the same is said to be against the well settled principles of natural justice. 4. The case of the respondents in the counter affidavit is that the order of punishment was based on the enquiry report, after giving full opportunity and the charges against the petitioner were 'absence from duty and not taking interest in collection of co-operative loans, misappropriating the funds and other charges'. It has also been stated that during the period of suspension, the petitioner retired from service with effect from 30.1.1999 and with the permission of the Secretary, Co-operative Department, the departmental proceedings were converted under Rule 139 of the Bihar Pension Rules by issuance of memo no. 3261 dated 6.6.2000. The case of the respondents is that on the basis of the outcome in the departmental proceedings, after giving second show cause notice and considering the show cause reply, submitted by the petitioner, the punishment was imposed, which is sought to be challenged here. 5. It is also the case of the respondents that an Award Case was filed against the petitioner in the Court of Assistant Registrar, Co-operative Societies, Ranchi Circle, and the learned court passed an award of Rs.1 ,65,530.72 paise, which has neither been deposited by the petitioner nor has been challenged till date and it was under these background that the payment of retiral benefits was withheld. 6. After hearing the argument at length, counsel for the petitioner agrees that he has no objection with regard to the first punishment of deducting 10% of pension amount. As regards the second claim of the aforesaid awarded amount of Rs 1,65,530.72 paise, counsel for the petitioner submits that he seeks liberty to challenge the same before appropriate authority under the Bihar Public Demand Recovery Act. However, he raises a specific contention that withholding of balance salary after deducting the subsistence allowance, already paid during the period of suspension, was illegal and against Rule 139 of the Bihar Pension Rules. 7. I have examined Rule 139(a) and (b) of the Bihar Pension Rules, 1950, which is quoted as under:- "139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. 7. I have examined Rule 139(a) and (b) of the Bihar Pension Rules, 1950, which is quoted as under:- "139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. XX XX XX" 8. On a conjoint reading of Rule 139(a) and (b) the logical conclusion follows that unless the service rendered has been approved and has been thoroughly satisfactory, the authorities are statutorily empowered to make such reduction in payment of pension as thought proper. In the aforesaid background, when in the instant case punishment has been imposed to reduce 10% of pension and recovery of amount, the same can certainly be deducted from the pension amount as provided under Rule 139(b) of the Bihar Pension Rules, 1950. 9. I have also perused Rule 97 of the Bihar Service Code, which is also quoted hereunder:- 97. (1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order- (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duly. (2) Where the authority mentioned in sub-rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe: Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe: Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible. (4) In a case falling under clause (2) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant." 10. As per Rule 97(2) when the Government servant has been fully exonerated or in case. of suspension when it was wholly unjustified, the Government servant shall be given full pay and allowance, but Rule 97(3) clearly provides that in other cases, meaning thereby, other than Rule 97(2), the Government servant shall be given such proportion of such pay and allowance, which the competent authority may prescribe. 11. However, a prayer has been made that the respondents may be directed to release the admitted amount towards the retiral benefits after deducting 10% of pension, the awarded amount against the petitioner and the balance salary during the period of suspension period, with liberty to the petitioner to challenge the award passed against him before the appropriate forum. 12. I have no hesitation in holding that the admitted amount of retlral dues, which is otherwise payable after deducting the aforesaid amount, can certainly be cleared and paid to the petitioner within a period of two months from the date of receipt/production of a copy of this order. 13. In the aforesaid background, this writ petition is dismissed. However, there shall be no order as to costs.