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Jharkhand High Court · body

2009 DIGILAW 1104 (JHR)

Alphonce Toppo v. State of Jharkhand

2009-08-11

N.N.TIWARI

body2009
JUDGMENT: The petitioner, in this writ petition, has prayed for a direction on the respondents to pay the amounts of final pension, gratuity, leave encashment, group insurance, general provident fund and other retiral benefits, which are payable to the petitioner. 2. According to the petitioner, he retired as an Assistant Teacher as back as on 30th September, 2003. After his retirement, he was entitled to get his retiral benefits and other service terminal benefits, but till date the amounts of pension, gratuity, leave encashment, provident fund and group insurance have not been paid to him in spite of his repeated requests and representation. 3. A counter affidavit has been filed on behalf of the District Superintendent of Education, Gumla-Respondent no.5, stating, inter alia, that by letter dated 22nd September, 2008 the Drawing and Disbursing Officer, in reply to the petitioner’s claim, has reported that the petitioner was found absent from his duty since st August, 1997. It has been further stated that the petitioner was asked to produce the service book along with pension papers, but he has not produced the same. 4. In reply the petitioner has stated that the pension paper has been submitted long back in October, 2003. So far as the service book is concerned, the same is kept by the Drawing and Disbursing Officer and is not expected to be in possession of the petitioner. Regarding the allegation of absence from duty, he has stated that the petitioner was transferred to a place where there was no vacant post. Thereafter, he was kept on deputation without paying his salary. In order to cover the said illegal deprivation, the respondents have taken plea in their counter affidavit for the first time that the petitioner was absent from duty during that period. 5. I have heard learned counsel for the parties and perused the record. In order to justify the long delay in paying the retiral dues of the petitioner, the respondents have stated that some period of his service is in dispute. The said question has been admittedly raised by the Drawing and Disbursing Officer for the first time after five years of his retirement vide Annexure-A to the counter affidavit. There was no whisper of the petitioner’s long absence from duty during his service period. 6. The said question has been admittedly raised by the Drawing and Disbursing Officer for the first time after five years of his retirement vide Annexure-A to the counter affidavit. There was no whisper of the petitioner’s long absence from duty during his service period. 6. No action whatsoever was taken for the alleged long absence of the petitioner from his duty either during his service period or for years together after his retirement. The said ground has been taken to justify the inordinate delay in making payment of the petitioner’s retiral dues. 7. Rule 43(b) of Jharkhand Pension Rules, 2000 provides that the State Government may withhold or withdraw the pension or any part of it, permanently or for a specified period, and they have right of ordering the recovery from pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. The said Rule runs thus: “43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed.” 8. It is clear from the proviso to the Rule that such departmental proceeding, if not instituted by the Government while Government servant was on duty either before retirement or during reemployment, shall not be instituted save with the sanction of the State Government and shall be in respect of an event which took place not more than four years before the institution of such proceeding. 9. In the instant case, the petitioner is not found guilty of any misconduct in a departmental proceeding or a judicial proceeding. For the first time, allegation of the petitioner’s absence from duty has been made by letter dated 22nd September, 2008 after about five years of his retirement. Admittedly, there was no departmental proceeding regarding the said allegation or any charge against the petitioner. There is no order of any competent authority to withhold the pensionary benefits of the petitioner. 10. For the first time, allegation of the petitioner’s absence from duty has been made by letter dated 22nd September, 2008 after about five years of his retirement. Admittedly, there was no departmental proceeding regarding the said allegation or any charge against the petitioner. There is no order of any competent authority to withhold the pensionary benefits of the petitioner. 10. No provision has been brought to the notice of the Court under which the petitioner’s pensionary benefits can be withheld without any order passed in a proceeding in accordance with law. 11. In view of the above, the objection raised by the respondents after five years of the petitioner’s retirement has no legal justification. The allegation of the Drawing and Disbursing Officer regarding the petitioner’s absence during service period is without any cogent basis. The said plea appears to have been taken only in order to justify the illegal withholding of petitioner’s retiral benefits for several years. Callous attitude of the respondents is evident from the fact that they have not even released provisional pension to the petitioner, which should have been paid from the very next month of his retirement. 12. I find no legal justification for withholding the petitioner’s pensionary benefits for years together after his retirement. The writ petition was filed in the year 2008. Even after filing of the writ petition, the payment of retiral benefits has not been made to the petitioner till date. 13. In view of the above, this writ petition is allowed. Respondent no.5-District Superintendent of Education, Gumla is directed to send all the papers for fixing the petitioner’s final pension and gratuity to the Accountant General within a period of six weeks from the date of receipt/production of a copy of this order. The Accountant General on receipt of the papers shall issue appropriate payment order of final pension and gratuity within a period of four weeks from the date of receipt of the papers. Respondent no.5 is further directed to pay the amounts of group insurance and leave encashment within a period of six weeks with statutory interest. The District Provident Fund Officer, Gumla is directed to pay the amount of the petitioner’s G.P.F. with statutory interest within a period of six weeks from the date of receipt/production of a copy of this order. Respondent no.5 is further directed to pay the amounts of group insurance and leave encashment within a period of six weeks with statutory interest. The District Provident Fund Officer, Gumla is directed to pay the amount of the petitioner’s G.P.F. with statutory interest within a period of six weeks from the date of receipt/production of a copy of this order. The arrears of pension and gratuity with statutory interest shall be paid to the petitioner within a period of four weeks from the date of receipt of the payment order from the Accountant General. 14. Respondent no.5 shall pay cost of Rs.5000/-(rupees five thousand) to the petitioner within a period of six weeks. 15. If the amount(s) payable to the petitioner is/are not paid within the period prescribed herein, he shall be entitled to get additional interest @ 10% per annum from the date the amount(s) is/are found payable till the date of final payment. 16. The State Government shall be at liberty to realize the amount of penal interest from the erring official(s).