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2012 DIGILAW 1441 (JHR)

Anil Kumar Sharma v. State of Jharkhand

2012-09-20

APARESH KUMAR SINGH

body2012
JUDGMENT Heard learned counsel for the parties. 2. This writ petition has been preferred for quashing the notification issued under Memo No. 4191 dated 26.11.2008 whereby a decision has been taken to convert departmental proceeding pending against the petitioner to continue under Rule 43B of the Bihar Pension Rules, 1950 (Now adopted by State of Jharkhand) as the petitioner has retired on 31.05.2007 during the pendency of disciplinary proceeding. The petitioner has sought for a direction upon the respondents to pay the entire retirement benefits including GPF, balance gratuity, pension, insurance amount, leave salary etc. Although, the main prayer in the writ petition preferred by the petitioner is challenging the conversion of the departmental proceeding under Rule 43B of the Jharkhand Pension Rules as directed by the impugned order dated 26.11.2008, learned counsel for the petitioner seeks to confine his prayer for the present for issuance of a direction upon the respondent to pay the balance of post retiral dues like 10 % of provisional pension, 10 % of provisional gratuity and 10 months leave salary, which are being withheld. 3. Reply to the counter affidavit has been filed by the learned counsel for the petitioner in which it has been stated that 90 % of provisional pension and provisional gratuity and in the unrevised scale has been paid, during the pendency of the writ petition. However, the petitioner submits that 10 % of the provisional pension and 10% of provisional gratuity has been withheld on account of pendency of the proceeding under Rule 43B in which till date no decision has been taken by the department. Learned counsel for the petitioner relied upon the judgment in the case of Dr. Dudh Nath Pandey Vs. State of Jharkhand & Ors reported in 2007(4) JCR 1 (Jhr) (FB) and submits that legal position has clearly been declared in the said judgment that Rule 43B does not contemplate the power to withhold the pension etc. during the pendency of the judicial proceeding or departmental proceeding. It contemplates exercise of such power only if the pensioner has been found guilty of grave misconduct in those proceeding. It has further been stated that apart from the aforesaid question which was answered in the Full Bench Judgment, it has also been held that there is no power at all for the State Government to withhold leave encashment under Rule 43B at any stage. It has further been stated that apart from the aforesaid question which was answered in the Full Bench Judgment, it has also been held that there is no power at all for the State Government to withhold leave encashment under Rule 43B at any stage. The relevant paragraph nos. 19 to 21 of the judgment (supra) is quoted hereinbelow:- “19. As indicated above, that Rule 43(b) does not contemplate the power to withhold the pension etc. during the pendency of judicial proceeding or departmental proceeding. It contemplates such power only when that pensioner has been found guilty of grave misconduct in those proceeding. Therefore, Rule 43(b) would not apply in the instant case. 20. It is also to be noticed that Rule 43(b) is relating to withholding of the pension or any part of it. Leave encashment is not covered under Rule 43(b). As such, there I no power given to the State Government to withhold the leave encashment under Rule 43(b) either during the pendency of the proceeding of after conclusion of the proceedings. 21. Therefore, we are to hold while answering the first question that the Government has no power to withhold pension or gratuity on the ground of pendency of judicial or departmental proceedings and there is no power at a for the State Government to withhold the leave encashment under Rule 43(b) at any stage.” 4. Learned counsel for the respondents, on the other hand, submits that proceeding, which has been converted under Rule 43B against the petitioner vide order dated 26.11.2008 (Annexure-7) has not yet been concluded. However, he does not dispute the legal position as held in the judgment of the case quoted (supra). 5. In the circumstances, at this stage, the petitioner is directed to approach the respondent no. 2, the Secretary, Forest and Environment Department, Government of Jharkhand, Ranchi for redressal of his grievances for payment of balance amount of pension and gratuity as also leave salary within three weeks alongwith all necessary documents. Learned counsel for the petitioner, further, submitted that the respondents may consider the question of final fixation of pension while taking a decision on the representation of the petitioner in the revised scale. If such a representation is filed before the respondent no. Learned counsel for the petitioner, further, submitted that the respondents may consider the question of final fixation of pension while taking a decision on the representation of the petitioner in the revised scale. If such a representation is filed before the respondent no. 2, he shall consider the same in the light of the judgment of Dudh Nath Pandey (Supra) in view of the fact that the proceeding under 43B has not yet been concluded and pass a reasoned and speaking order within a period of 12 weeks thereafter, which shall be communicated to the petitioner. 6. It is made clear that if petitioner’s claim is found genuine and legally admissible to him in view of the Full Bench Judgment rendered by this Court, the same should be paid within a period of six weeks thereafter. 7. However, petitioner will be at liberty to agitate the any cause of action which may arise on conclusion of the proceeding under Rule 43 B of the Jharkhand Pension Rule against him. 8. It is, further, made clear that any payment of the balance amount of pension and gratuity would be subject to the final decision of the proceeding under Rule 43B of the Jharkhand Pension Rule, which is pending against the petitioner. 9. This writ petition is disposed of in the aforesaid terms.