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2013 DIGILAW 1106 (JHR)

Birendra Kumar Thakur v. State of Jharkhand

2013-09-25

APARESH KUMAR SINGH

body2013
ORDER 1. Heard learned counsel for the parties. 2. According to the petitioner, he has retired on 31.07.2010 from the post of Deputy Chief Inspector of Factory, under the respondent Labour Employment and Training Department, Government of Jharkhand. After his retirement on 16.11.2011, by a resolution as contained in Annexure10, proceedings have been initiated for certain charges against the petitioner purportedly under Rule 55 of the Civil Services Classification Control and Appeal Rules, 1930, which is impermissible. It is also submitted that the proceedings have been initiated without compliance with the provisions of Jharkhand Pension Rules under Rules 43(b) and 139 against the petitioner by the said resolution. However, it is also stated on behalf of counsel for the petitioner that merely on the ground of initiation of such a proceeding, 10% of pension and gratuity and full leave encashment amount of the petitioner has been withheld, which is in the teeth of the decision rendered by the Full Bench of this Court in the case of Dr. Dudh Nath Pandey Vs. State of Jharkhand & Ors., reported in 2007(4) JCR1 (Jhr.) (FB). The same view has also been upheld by Hon'ble Supreme Court in the case of State of Jharkhand Vs. Jitendra Kumar Srivastava, reported in 2013(3) JLJR 537 (SC). In such circumstances, the petitioner has approached this Court. 3. Counsel for the respondents submits that the proceedings have been initiated under Rules 43(b) and 139 of the Jharkhand Pension Rules after the retirement of the petitioner for the charges relating to the year 2010 itself. The said charges can not be said to be beyond the period of four years from the date of initiation of the proceedings, which is permissible under Rule 43(b) of the Jharkhand Pension Rules. However, the counsel for the respondents does not have any answer to the legal proposition that has been settled by the Hon'ble Apex Court in the case of Jitendra Kumar Srivastava (Supra) and also by the Full Bench of this Court in the case of Dr. Dudh Nath Pandey (Supra). 4. I have heard counsel for the parties and gone through the impugned resolution as also the relevant materials on records. From the resolution as contained in Annexure10 dated 16.11.2011, it appears that the same has been issued by the State Government, Department of Labour, Employment and Training invoking Rules 43(b) and 139 of the Jharkhand Pension Rules. 4. I have heard counsel for the parties and gone through the impugned resolution as also the relevant materials on records. From the resolution as contained in Annexure10 dated 16.11.2011, it appears that the same has been issued by the State Government, Department of Labour, Employment and Training invoking Rules 43(b) and 139 of the Jharkhand Pension Rules. The charges related to the year 2010 and the petitioner is said to have retired in July 2010. In such circumstances, the contention of the petitioner that initiation of proceeding is in the teeth of the provision of Rule 43(b) of the Jharkhand Pension Rules and 139 thereof neither appears to be justified in law nor sustainable on facts. 5. Therefore, the Court is not inclined to interfere in the initiation of proceedings vide resolution as contained in Annexure 10. However, so far as the question relating to withholding of the part of the post retirement dues i.e. 10% of pension and gratuity and full leave encashment is concerned, the same are wholly impermissible in law as settled by the Apex Court (Supra) and can not be allowed to be done in the aforesaid manner by the respondents. 6. In such circumstances, the respondents shall pay the full pension, gratuity and leave encashment amount to the petitioner even during the pendency of the said proceedings initiated vide Annexure 10. Let the said payments be made to the petitioner within a period of 10 weeks from the date of receipt of a copy of this order. 7. This writ petition is, accordingly, disposed of. 8. Needless to say that since the petitioner had already retired, the present proceeding initiated vide Annexure10 dated 16.11.2011 be completed within a reasonable time preferably within 16 weeks from the date of receipt of a copy of this order. However, the petitioner shall cooperate in the said proceeding and if he fails to do so, it would be open to the respondent to conclude the same in an exparte manner. Petition disposed of.