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2010 DIGILAW 996 (JHR)

Naresh Kumar v. State of Jharkhand

2010-11-02

RAKESH RANJAN PRASAD

body2010
JUDGMENT R.R. Prasad, J. 1. Heard learned Counsel appearing for the Petitioner and learned Counsel appearing for the State. 2. Having heard learned Counsel appearing for the parties, it does appear that the Petitioner while was holding post of Deputy Secretary, Urban Development Department, State of Jharkhand got retired on his superannuation on 31.7.2010. Thereupon only 75% of the pension and the gratuity was sanctioned whereas not a single amount towards leave encashment was sanctioned on the ground that a departmental proceeding which has been initiated against the Petitioner is pending and that apart, the Petitioner is also an accused in a criminal case but the question falls for consideration whether the payment can be withheld in purported exercise of power as enshrined under Rule 43(a) and 43(b) of the Bihar Pension Rules? 3. The proposition of law has already been laid down by the Full Bench of this Court rendered in a case of Dr. Dudh Nath Pandey v. State of Jharkhand and Ors. 2007(4) J.C.R 1 (Jhr) (FB)] where similar question fell for consideration as to whether the Government does have power to withhold gratuity, leave encashment and pension during the pendency of the departmental proceeding or criminal proceeding in terms of the provision of Rule 43((a) and 4(b) of the Bihar Pension Rules. 4. Their Lordships after taking into consideration number of cases and also the provision as enshrined under Rule 43(a) and 43(b) of the Bihar Pension Rules held hereunder: 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. It does not give any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding. 5. It was pointed out by learned Counsel appearing for the Petitioner that pursuant to order passed by this Court in the aforesaid case, the State Government has even come forward with a notification issued by the Finance Department wherein instruction has been given to all the concerned higher authorities to carry out the order passed by this Court. 5. It was pointed out by learned Counsel appearing for the Petitioner that pursuant to order passed by this Court in the aforesaid case, the State Government has even come forward with a notification issued by the Finance Department wherein instruction has been given to all the concerned higher authorities to carry out the order passed by this Court. In spite of that, the order has been passed whereby only 75% of the pension and the gratuity has been sanctioned whereas no order has been passed with respect to payment of leave encashment which order, in view of the Full Bench decision and also in view the of the provision, referred to above, is quite illegal. Accordingly, the order as contained in memo No. 5269 dated 1.9.2010 is hereby quashed. 6. Accordingly, the concerned Respondent is directed to make full payment of the amount of the gratuity, leave encashment and also the pension along with statutory interest, if any, and to do the needful in the matter of final fixation of pension within a period of three months from the date of receipt/production of a copy of this order. 7. Accordingly, this application is allowed. Application allowed.