ORDER : The petitioner, a widow, is aggrieved of order dated 10.11.2008 by which a direction was issued for recovery of the amounts withdrawn/retained by her husband, from the death-cum-retiral dues payable to her. 2. At the outset, it is pertinent to mention that this is the 5th proceeding by the petitioner in this Court, seeking payment of death-cum-retiral benefits. 3. Briefly stated, husband of the petitioner while working as Junior Engineer under the Irrigation Department died in harness on 08.01.2002; cause of death was cancer. More than three years after the death of her husband when family pension and other post-retiral benefits were not paid to her, the petitioner approached this Court in W.P.(S) No. 2404 of 2005. This Court issued a specific direction, vide order dated 14.06.2005, to the respondents to release the admitted death-cum-retiral dues to the petitioner, together with statutory interest within two months from the date of receipt of a copy of order dated 14.06.2005. The writ petition stood disposed of by the said order; this order was not challenged and it became final. However, direction of the Writ Court was not complied by the respondents and on an allegation that husband of the petitioner had withdrawn Rs.1,43,513.00 from his GPF account in excess to what was deposited by him and he had failed to adjust Rs.3,53,012.33, vide memo dated 05.05.2006 the respondents intended to recover the aforesaid amounts from the death-cum-retiral dues payable to the petitioner. Order contained in memo dated 05.05.2006 was in the teeth of the direction issued by this Court in W.P.(S) No. 2404 of 2005. The order contained in memo dated 05.05.2006 was challenged by the petitioner in W.P.(S) No. 755 of 2007 which was allowed by an order dated 23.07.2007. Still, when the respondents did not pay death-cum-retiral benefits to the petitioner, she was constrained to file Contempt (Civil) Case No. 699 of 2007. In the proceeding of the contempt case, a statement was made on behalf of the respondent-State that death-cum-retiral benefits to the petitioner have already paid to her. The stand taken by the respondent-State in Contempt (Civil) Case No. 699 of 2007 was not only incorrect, the respondents made a false statement before this Court for which they are liable to be prosecuted. 4. The stand taken by the respondent-State in Contempt (Civil) Case No. 699 of 2007 was not only incorrect, the respondents made a false statement before this Court for which they are liable to be prosecuted. 4. After this Court passed an order in W.P.(S) No. 2404 of 2005 directing the respondents to release the legally payable death-cum-retiral dues to her and order dated 05.05.2006, by which the Secretary, Department of Water Resources ordered recovery of Rs.3,53,012.33 from post-retiral benefits payable to her husband, was quashed by this Court in W.P.(S) No. 755 of 2007, the petitioner submitted a representation for payment of gratuity, leave encashment, provident fund and arrears of salary, with 5% interest in the light of order dated 14.06.2005 passed in W.P.(S) No. 2404 of 2005. In her representation the petitioner has pleaded that the alleged recovery of Rs.3,53,012.33 pertains to 1985-89 and before the death of her husband on 08.01.2002, no notice for the aforesaid recovery was issued to him. On initiation of a departmental proceeding against her husband, which was not even contemplated by that time, the petitioner in her representation dated 31.07.2007 (Annexure-6) has referred to decision of the Supreme Court in “State of Madhya Pradesh Vs. Bani Singh & Anr.” reported in 1990 (Supp) SCC 738. Another plea raised by her in her representation was that at the end of every financial year since all expenditures etc. are sent to the Audit Department and the office of the Accountant General, which never raised any objection, the order of recovery was malafide besides, against the natural justice. 5. In the counter-affidavit dated 06.04.2010 filed on behalf of the respondent nos. 2 to 5 except pleading that after considering her reply it was decided to recover Rs.3,53,012.33 and Rs.1,43,513.00 from the death-cum-retiral benefits payable to the petitioner, the respondents did not produce any indisputable documents to justify recovery of the aforesaid amounts from the death-cum-retiral benefits payable to the petitioner and it was only when interim orders dated 15.01.2018 and 29.01.2018 were passed in this proceeding, a voluminous supplementary counter-affidavit containing more than 90 pages was filed by them. This affidavit contains documents all of which except, one, were never supplied to the petitioner. In the counter-affidavit filed on behalf of the respondent no. 4 details of payment of group insurance and sanction of family pension, GPF, gratuity and leave encashment have been given. This affidavit contains documents all of which except, one, were never supplied to the petitioner. In the counter-affidavit filed on behalf of the respondent no. 4 details of payment of group insurance and sanction of family pension, GPF, gratuity and leave encashment have been given. It is pleaded that Rs.4,96,525.00 (Rs.3,53,012.00 + Rs.1,43,513.00) has been recovered from gratuity, earned leave and family pension payable to the petitioner (paragraph 9). A similar stand has been taken by the respondents in the supplementary counter-affidavit dated 20.02.2018 (paragraph 16). 6. Family pension to the widow of the deceased employee is not akin to pension payable to an employee. Pension is akin to right to property under Article 300-A of the Constitution of India. It is earned by the employee on account of his meritorious service under the employer, whereas family pension is payable to the widow of the deceased employee on death of the employee and that is the reason family pension cannot be gifted or bequeathed by the employee during his lifetime. In “Jodh Singh Vs. Union of India & Anr.” reported in (1980) 4 SCC 306 , the Supreme Court has held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which has devolved on his death to his widow, and since family pension does not form part of the estate of the deceased it can never be the subject matter of testamentary disposition. Referring to the decision in Jodh Singh, the Supreme Court in “Smt. Violet Issaac & Ors. Vs. Union of India & Ors.” reported in (1991) 1 SCC 725 has held that the widow of the deceased employee was entitled to receive family pension, notwithstanding a will executed by the deceased in favour of his brother. In view of the aforesaid decisions of the Supreme Court, the law, in my opinion, does not permit any recovery from family pension payable to the dependent of a deceased employee, on the ground of excess payment made to or retained by the deceased employee during his service tenure. 7. In view of the aforesaid decisions of the Supreme Court, the law, in my opinion, does not permit any recovery from family pension payable to the dependent of a deceased employee, on the ground of excess payment made to or retained by the deceased employee during his service tenure. 7. Section 4 of the Payment of Gratuity Act, 1972 mandates that gratuity shall be payable to an employee who has rendered not less than 5 years of continuous service- (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or his disablement due to accident or disease. Sub-section 6 to section 4 provides that gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. It further provides that the gratuity payable to an employee may be wholly or partially forfeited for the acts covered under clause (i) and (ii) to sub-section 6 (b). Section 13 provides that the gratuity payable to an employee is not liable to attachment in execution of any decree or order of any civil, revenue or criminal Court. Section 14 confers overriding effect to the provisions of Payment of Gratuity Act, 1972, notwithstanding anything inconsistent therewith contained in any enactment other than this Act. The Payment of Gratuity Act, 1972 is a complete Code and the benefits accrued under this Act to an employee cannot be curtailed. In “Jaswant Singh Gill Vs. Bharat Coking Coal Ltd. & Ors.” reported in (2007) 1 SCC 663 , it has been held that if an accrued or vested right is sought to be taken away, the conditions laid down under the Payment of Gratuity Act, 1972 must be fulfilled. 8. On admitted facts, during the lifetime of the employee no proceeding for recovery of the alleged excess withdrawal from his GPF account or unadjusted amount of Rs.3,53,012.33 was initiated by the department. Whether Rs.1,43,513.00 was withdrawn by husband of the petitioner in excess to the deposits in his GPF or not, merely on the basis of a letter of the Provident Fund Officer cannot be decided. Whether Rs.1,43,513.00 was withdrawn by husband of the petitioner in excess to the deposits in his GPF or not, merely on the basis of a letter of the Provident Fund Officer cannot be decided. On recovery of Rs.1,43,513.00 from the gratuity, leave encashment and family pension payable to the petitioner, it needs to be indicated that the alleged excess withdrawal of Rs.1,43,513.00 by the husband of the petitioner from his GPF account is solely based on letter dated 28.07.2005 of the District Provident Fund Officer, Sahibgunj. Order dated 14.06.2005 passed in W.P.(S) No. 2404 of 2005; this order was passed in presence of the counsels for the respondents, does not refer to any of the aforesaid amounts sought to be recovered from the post-retiral benefits and family pension payable to the petitioner. Now, in the present proceeding by filing a voluminous supplementary counter-affidavit on 22.02.2018, a calculation sheet has been produced by the respondents to justify adjustment of Rs.1,43,513.00 from the death-cum-retiral benefits payable to the petitioner. No enquiry was conducted in the matter, nor any detail of deduction from salary of the husband of the petitioner and deposit in his provident fund account as well as the alleged excess withdrawal of Rs.1,43,513.00 were furnished to the petitioner. Even assuming that this amount is recoverable from the estate of the deceased employee, it cannot be recovered in the manner the respondents have sought to recover from the death-cum-retiral benefits payable to the petitioner, for it requires adjudication. 9. On recovery of Rs.3,53,012.33, it is pertinent to record that in her representation dated 23.10.2007 besides seeking supply of documents the petitioner has referred to Rule 55 of Bihar and Bengal Conduct and Discipline Rule and Rule 43(b) of the Pension Rules to contend that after death of her husband the aforesaid amounts cannot be recovered. The respondent-department, thereafter, on 31.05.2008 furnished a copy of the report dated 28.07.2006. The opening paragraph of this report would indicate that this enquiry was conducted to identify the officers due to whose negligence Rs. 3,53,012.33 could not be recovered from husband of the petitioner during his lifetime. Not only that, paragraph no. 4.1 of the report makes it explicit that only Rs. 53,801.66/- had remained unadjusted and not Rs. 3,53,012.33. This report obviously cannot be relied upon by the respondents to justify recovery of Rs. 3,53,012.33. Paragraph no. 4.1. 3,53,012.33 could not be recovered from husband of the petitioner during his lifetime. Not only that, paragraph no. 4.1 of the report makes it explicit that only Rs. 53,801.66/- had remained unadjusted and not Rs. 3,53,012.33. This report obviously cannot be relied upon by the respondents to justify recovery of Rs. 3,53,012.33. Paragraph no. 4.1. of the report dated 28.07.2006 reads as under : 4-1 ljdkj ds mi lfpo] ty lalkk/ku foHkkx] >kj[k.M] jk¡ph ds i=kad 1702 fnukad 05-07-06 esa ;g izfrosfnr gS fd LoxhZ; 'kEHkqukFk flag] rnsu duh; vfHk;ark }kjk y?kq forj.kh izeaMy la0&5] fMeuk] te'ksniqj esa inLFkkiu ds nkSjku vLFkk;h vfxze ds :i esa izkIr dqy 3]53]012¾33 ¼rhu yk[k frjiu gtkj ckjg :i;s rSarhl iSlk½ dk u rks lek;kstu gqvk vkSj u gh olwyh gks ldhA vfHkys[kksa ds tk¡p ls Kkr gksrk gS fd Jh flag ds fo:) ek= 53]801¾66 :i;k vLFkk;h vfxze ds :i esa vlek;ksftr jg x;k Fkk u fd 3]53]012¾33 :0A English Translation: It is reported in letter no. 1702 dated-05.07.06 of the Deputy Secretary to the Government, Water Resource Department, Jharkhand, Ranchi that Late Shambhunath Singh, the then Junior Engineer during the posting at Minor Distribution Division No.-5, Dimna, Jamshedpur had taken total Rs. 3,53,012.33 (Three lakhs fifty-three thousand twelve rupees and thirty three paise) as temporary advance which was neither adjusted nor recovered. From verification of records, it transpires that against Sri Singh only Rs. 53,801.66 has remained unadjusted as temporary advance and not Rs. 3,53,012.33. 10. Leave encashment payable to an employee partakes the character of property under Article 300-A of the Constitution of India. Without a proceeding under the extant rules, the amount of leave encashment payable to the husband of the petitioner, now to the petitioner, cannot be adjusted against the alleged excess withdrawal from GPF or the unadjusted amount lying against the husband of the petitioner. 11. Why the aforesaid amounts cannot be recovered in the manner the respondents have sought to adjust from death-cum-post-retiral benefits payable to the petitioner was already indicated in the interim order passed by this Court, not once but twice, still, the respondents without challenging the interim orders dated 15.01.2018 and 29.01.2018 have insisted that the aforesaid amounts can be legally recovered from gratuity, leave encashment payable to the deceased employee and family pension of the petitioner. May be recovery of the aforesaid amounts is permissible by filing a civil suit, but the aforesaid amounts, in the facts of this case, cannot be recovered from the death-cum-retiral benefits payable to the petitioner. 12. Absence of fairness in action on the part of respondents becomes apparent when the impugned order dated 10.11.2008 is read along with the supplementary counter-affidavit dated 20.02.2018. The respondent-authority has recorded that in her reply dated 12.09.2008 the petitioner has not adverted to the proposed recovery from the death-cum-retiral benefits payable to her. This observation in the impugned order dated 10.11.2008 has ignored the representations submitted by the petitioner on 31.07.2007, 23.10.2007 and 06.11.2007, which were submitted by her raising objection to the proposed recovery of Rs.4,96,525.00 (admitted in paragraph 15 of the supplementary counter-affidavit). The impugned order dated 10.11.2008 does not refer to any of the issues raised by the petitioner in her representations. 13. Pension and gratuity cannot be withheld or forfeited even during pendency of a departmental proceeding, has been declared by the Supreme Court in “State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr.” reported in (2013) 12 SCC 210 . Under Rule 43 (b) of the Jharkhand Pension Rules, 2000 pension of an employee can be forfeited, wholly or partially, only when the employee in a departmental proceeding has been found guilty of gross misconduct committed by him during his service tenure, or he has been held guilty by a criminal Court for such act. No proceeding under Rule 43(b) was initiated against the husband of the petitioner and now, after the death of the husband of the petitioner, a proceeding under Rule 43(b) cannot be started. Decision of the Supreme Court in a case in which the State of Jharkhand itself was petitioner before the Supreme Court, it appears, is ignored with impunity by the respondent-authority. 14. About 50 years back, in “Deokinandan Prasad Vs. The State of Bihar & Ors.” reported in (1971) 2 SCC 330 , it was declared by the Supreme Court that pension is not a gratuitous reward to an employee rather it is earned by an employee by virtue of his meritorious service under the employee. At the sunset of his life payment of post-retiral benefits should be made to the employee without raising technical objections. Supreme Court in a recent judgment in “Netram Sahu Vs. At the sunset of his life payment of post-retiral benefits should be made to the employee without raising technical objections. Supreme Court in a recent judgment in “Netram Sahu Vs. State of Chhattisgarh & Anr.” [In Civil Appeal No.1254 of 2018] has observed that; it is really unfortunate that the genuine claim of the appellant was being denied by the State at every stage of the proceedings up to this Court and dragged him in fruitless litigation for all these years. 15. The reason why I am reproducing the law on the subject is, that this is not a case in isolation which reflects blatant violation of ex-employees’ constitutional rights. In several cases on mere technicalities pension and post-retiral benefits have been denied to the employee; sometimes to the widow and minor children for years together. Several affidavits are filed in a writ proceeding, but issues are not addressed to by the respondent-State. For example, in this writ petition as many as five affidavits have been filed by the respondent-State, the last one runs into more than 90 pages, still, it has not been indicated how recovery of Rs.1,43,513.00 and Rs.3,53,012.33 from the gratuity, leave encashment and family pension payable to the petitioner can be justified in law. 16. In view of the aforesaid discussions, the impugned order dated 10.11.2008 is held illegal. The respondents have intended to recover Rs.4,96,525.33 (Rs.1,43,513.00 + Rs.3,53,012.33) illegally from the family pension and gratuity/leave encashment now payable to the petitioner. 17. Vide memo dated 07.11.1981, which forms part of Appendix-VI, interest on delayed payment of post-retiral benefits @ 5% per annum for the period beyond 3 months after the pension/D.C.R, gratuity etc. become due has been provided by the Government. This letter begins with, “Government are distressed to find that the delay has not yet been altogether eliminated resulting in financial distress and pecuniary loss to pensioners and families of deceased Government servants”. Bihar Pension Rules, 1950 has been adopted by the Government of Jharkhand and now it is called Jharkhand Pension Rules, 2000. By operation of the provisions under the Bihar Reorganistion Act, 2000, letter dated 07.11.1981 and other decisions of the Government of Bihar as found under Appendix-VI have become law in operation in the State of Jharkhand. Bihar Pension Rules, 1950 has been adopted by the Government of Jharkhand and now it is called Jharkhand Pension Rules, 2000. By operation of the provisions under the Bihar Reorganistion Act, 2000, letter dated 07.11.1981 and other decisions of the Government of Bihar as found under Appendix-VI have become law in operation in the State of Jharkhand. Payment of interest on delayed payment of the post-retiral benefits is not compensation to an employee rather, it is the amount accrued on the unpaid dues which the employee would have earned. Accordingly, it is ordered that within six weeks the Engineer-in-Chief respondent no.3 shall ensure payment of all withheld post-retiral benefits payable to the petitioner with interest @ 5% per annum from 09.04.2002; husband of the petitioner had died on 08.01.2002. 18. There is another aspect of the matter. The petitioner who was compelled to approach this Court time and again, this is the 5th proceeding in this Court, has suffered in silence for long 15 years. She cannot be compensated for the untold miseries she has suffered, but the Court also cannot ignore the illegal manner in which the respondents have denied the petitioner death-cum-retiral benefits legally payable to her. Her representations raising substantial issues in law have been ignored by the respondents, forcing her to come to this Court once again. In the facts of this case, in my opinion, the petitioner needs to be compensated besides, costs for the legal expenses. Accordingly, cost of Rs.2 lacs is imposed on the State which shall be paid to the petitioner within six weeks. 19. The writ petition is allowed, in the above terms.