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Jharkhand High Court · body

2019 DIGILAW 1688 (JHR)

Noel Kerketta v. State of Jharkhand

2019-09-23

S.N.PATHAK

body2019
JUDGMENT : Heard the parties. 2. In the instant writ petition, petitioner has approached this Court with a prayer for direction to the respondents to release 100% pension in favour of the petitioner taking into consideration the fact that earlier order dated 14.12.2010, passed by the respondent-authorities withholding 25% pension of the petitioner, has been quashed and set aside by this Court. 3. The facts of the case lies in a narrow compass. When the petitioner was posted as Superintendent of Jail, Khunti he was placed under suspension in contemplation of a departmental proceeding by notification contained in memo No. 1558 dated 26.07.1999, issued under the signature of Special Secretary, Home (Special) Department, Govt. of Bihar. The said notification was challenged before the Hon’ble Patna High Court in C.W.J.C. No. 2546 of 1996 (R), which was disposed of vide order dated 14.12.1999 with a direction that the enquiry, if any, must start within one month of the receipt/ production of a copy of the order and be concluded within three months thereafter, failing which the impugned order of suspension shall stand revoked. The said order was communicated to the respondents on 21.12.1999. Thereafter, a departmental proceeding was initiated against the petitioner by issuance of charge-sheet on 18.05.2000. As the departmental proceeding was not concluded within period specified by the Hon’ble Patna High Court in its order dated 14.12.1999, the suspension of the petitioner stood revoked vide notification contained in memo No. 2358 dated 19.09.2000. 4. It is the further case of the petitioner that after bifurcation of the State, the services of the petitioner was allocated to the State of Jharkhand and the petitioner was posted at Gumla to the post of Superintendent of Jail. Subsequently, the petitioner superannuated from his service on 31.12.2008 but he was not paid his retiral dues, save and except GIS and GPF amount. Even the provisional pension was not paid and the annual increment from 2000 to 2008 was also stopped. It was only when the petitioner knocked the door of this Court by filing W.P.(S). No. 6162 of 2010 for release of his entire retiral dues, retiral dues was paid to the petitioner but 25% pension was withheld. Petitioner by filing I.A. No. 309 of 2011, challenged the said order of withholding of 25% pension of the petitioner. It was only when the petitioner knocked the door of this Court by filing W.P.(S). No. 6162 of 2010 for release of his entire retiral dues, retiral dues was paid to the petitioner but 25% pension was withheld. Petitioner by filing I.A. No. 309 of 2011, challenged the said order of withholding of 25% pension of the petitioner. The matter was finally heard and after hearing the parties at length, vide its order dated 12.12.2014, the Hon’ble Court quashed the impugned order with a liberty to proceed further if the respondents so wishes, as under wrong provisions of law the respondents were precluded from recovering 25% pension of the petitioner. The notification dated 14.12.2010 was quashed reserving the liberty to the respondents to proceed in accordance with Rule, if they so desire. However, the respondents were silent and took no steps for passing any order. It was only after five years from the date of passing of order dated 12.12.2014, the respondents have preferred LPA No. 310 of 2019 5. After perusal of the records and on direction to the petitioner as well as the respondents to come with the latest status of the case, it was found that the LPA remained pending as defective and till date it has not seen light of the day and the same was never placed before the Division Bench for hearing. As nothing was paid to the petitioner, he has been constrained to knock the door of this Court. 6. Mr. Krishna Kumar, learned counsel appearing for the petitioner strenuously urges that as the order dated 12.12.2014 has attained finality, the petitioner is entitled for 100% pension. It has been further argued that as the earlier order was quashed and set aside by this Court and thereafter, neither any proceeding was initiated nor any order was passed, it was incumbent upon the respondents to pay the entire amount of pension and as such, a direction be given to the respondents to extend the entire amount of pension to the petitioner. 7. Per contra, counter-affidavit has been filed. 7. Per contra, counter-affidavit has been filed. Learned counsel for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and argues that petitioner is not entitled for 100% pension, as merely because a wrong provision was mentioned in the impugned order, right does not accrue to him to get the entire amount pension and as such, rightly the order of withholding 25% pension of the petitioner was passed. Learned counsel draws the attention of the Court towards several paragraphs of the counter-affidavit and submits it has been mentioned in the counter-affidavit that a wrong provision was mentioned inadvertently and merely because a wrong provision was mentioned, right does not accrue to the petitioner for getting entire amount of pension. Justifying the impugned order, learned counsel submits that there is no illegality in withholding 25% pension of the petitioner. 8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. The respondents have passed an order withholding 25% pension of the petitioner under the provisions of Rule 43-A of the Bihar/Jharkhand Pension Rules. The same was challenged before this Court, in which, after hearing the counsel for the parties, the order was quashed and set aside as there was no provision for recovery of 25% of the pension. The respondent-State has every right to recover, if it is found that the employee is guilty of gross misconduct and there is loss to the State Exchequer. Nothing has been brought on record to show that the employees was guilty of grave misconduct or there has been loss to the State Exchequer, neither any proceeding was initiated by the respondent-State under Rule 43-B of Bihar/ Jharkhand Pension Rules. Liberty was reserved with the respondent to proceed against the petitioner under the provision of law. However, respondent chose not to proceed against him and it was only after filing of the writ petition and after five long years, the respondents chose to file LPA but that also remains defective. The arguments advanced by the learned counsel for the respondent that in the counter-affidavit averment has been made that inadvertently wrong provisions was mentioned in the impugned order. 9. The Hon’ble Apex Court in case of Commissioner of Police, Bombay Vs. The arguments advanced by the learned counsel for the respondent that in the counter-affidavit averment has been made that inadvertently wrong provisions was mentioned in the impugned order. 9. The Hon’ble Apex Court in case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 , in para 9 has held that: 9. An attempt was made by referring to the Commissioner’s affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” The aforesaid decision has also been followed in several subsequent decisions like in the case of Mohinder Singh Gill Vrs. Chief Election Commissioner, reported in (1978) 1 SCC 405 , paragraph-8 of which reads as under:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji:. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” 10. As a sequitur to the aforesaid observations, rules, guidelines and legal propositions, I hereby direct the Home Secretary, Govt. of Jharkhand, to release the 25% amount of pension, if it is still withheld within a period of four weeks, from the date of receipt of copy of this order. 11. Resultantly, the writ petition stands allowed.