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2009 DIGILAW 1433 (JHR)

Lakshman Singh v. State of Jharkhand

2009-11-16

J.C.S.RAWAT

body2009
JUDGMENT In this writ petition filed under Article 226 of the Constitution of India, the petitioner seeks issuance of direction to the respondents to sanction and pay pension and gratuity to the petitioner who has retired from service on 29..2.2008. Prayer has also been made to direct the respondents to sanction and pay all retiral benefits including General Provident Fund, group insurance and unutilized earned leave encashment to the petitioner and also to pay interest on the amount of the retiral benefits which have been withheld by the respondents. 2. The respondents have filed counter affidavit in which they have taken a plea in para 10 that full pension and other benefits could not be granted because of the fact that the Commercial Taxes Department, Govt. of Jharkhand has already initiated proceeding u/s 43(b) of the Jharkhand Pension Rules because the petitioner is found to be involved in the matter of revenue loss to the State amounting to Rs. 12 crores approximately and that as per Letter No. 194 dated 16.06.2008 of the Finance Department, Government of Jharkhand, when any departmental enquiry is pending against a Government servant, only 75% of the pension can be sanctioned as provisional pension. 3. I have heard learned counsel for the parties and pursued the records. 4. Learned counsel for the petitioner contended that though the petitioner superannuated on 29.2.2008, his pension, gratuity or other post retiral benefits have not been paid to him and the respondents without rhyme or reason have withheld the payment of the dues payable to the petitioner. 5. Learned counsel for the respondent State contended that departmental proceeding is pending against the petitioner who is alleged to have committed irregularities of approximately 12 crores of rupees and therefore after retirement of the petitioner, enquiry proceedings against him has been initiated which is in progress. 6. Learned counsel for the petitioner contended that even if enquiry is pending against the petitioner, post retiral benefits cannot be withheld in view of the judgment of this Court in the Case of Dr. Dudh Nath Pandey Vs. State of Jharkhand and others ( 2007(4) JCR 1 ( Jhr.) ( F.B). 7. 6. Learned counsel for the petitioner contended that even if enquiry is pending against the petitioner, post retiral benefits cannot be withheld in view of the judgment of this Court in the Case of Dr. Dudh Nath Pandey Vs. State of Jharkhand and others ( 2007(4) JCR 1 ( Jhr.) ( F.B). 7. Perusal of the records reveal that after pronouncement of the aforesaid judgment of this Court, executive order has been issued by which it has been directed that where departmental proceedings have been initiated against a person found involved in the matter of loss of revenue caused to the State and the proceeding is pending, 75% of the pension can be sanctioned as provisional pension and payment of rest of the amount shall remain withheld. It is pursuant to that decision that the respondents have withheld payment of the post retiral benefits payable to the petitioner. 8. After going though Rule 43(a) and Rule 43(b) of the Bihar Pension Rules, and the Circular issued by the Government by which direction has been given to the Government to withhold sanction of the amount of pension, reference was made before Full Bench of this Court as to whether in absence of any guidelines, the State Government has power for withholding the gratuity and leave encashment on the ground of pendency of judicial or departmental proceedings and the full Bench has held that under Rule 43(a) and 43(b) of the Bihar Pension Rules, there is no power for the Government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding . 9. In view of the above, it is apparent that the Rules and Executive order do not empower to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceedings. Thus, the Circular issued by the Government as mentioned in para 10 of the counter affidavit is liable to be ignored in view of the decision rendered in the case of Dr. Dudnath Pandey ( supra). 10. Since the controversy as has been raised, has been resolved by this Court in the case reported in ( 2007(4) JCR 1 ( Jhr.) ( F.B), the petition is squarely covered by the said decision in the aforesaid case. 11. Dudnath Pandey ( supra). 10. Since the controversy as has been raised, has been resolved by this Court in the case reported in ( 2007(4) JCR 1 ( Jhr.) ( F.B), the petition is squarely covered by the said decision in the aforesaid case. 11. This writ petition is accordingly disposed of in terms of the aforesaid Full Bench decision of this Court and the petition is liable to be allowed. This writ petition is allowed. The respondents shall consider to pay the amounts payable to the petitioner within a period of three months from the date of presentation of a copy of this order in the light of the observations made above.