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2021 DIGILAW 1070 (JHR)

Jyotish Chandra Singh v. State of Jharkhand

2021-12-20

S.N.PATHAK

body2021
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the order communicated vide memo no. 143(2), Ranchi, dated 23.04.2019 (Annexure-4), whereby the gratuity of the petitioner has been withheld due to pendency of criminal case i.e. Vigilance Case No. 15 of 2009 and further the commutation of pension has been disallowed until the final outcome of the said criminal case. Petitioner has further prayed for a direction upon the respondents for releasing the entire amount of gratuity and also allow the commutation of pension as per Pension Rule that existed prior to promulgation of Rule 43(c), notified vide notification dated 23.07.2018 for the reasons that petitioner superannuated on 31.01.2018 itself i.e. prior to coming into existence of the said notification. 3. As per factual matrix, the petitioner retired from post of Registrar, Department of State Ayush Medical Board, Jharkhand, Ranchi, on 31.01.2018. It is the case of the petitioner that though he performed his duties with utmost sincerity and honesty but during his service period, he was put under suspension w.e.f. 03.04.2010, vide order dated 22.04.2010, on the ground initiation of one criminal case i.e. Vigilance Case No. 15 of 2009, against the petitioner, which is still pending. However, the suspension order stood revoked vide order dated 11.06.2011. Thereafter vide order dated 28.07.2016, the respondents decided to initiate a departmental proceeding on the same charges and evidences as in the criminal case but the same was stayed by the Department vide order dated 27.11.2017 until the final outcome of the criminal case. It is the further case of the petitioner that on 31.01.2018 petitioner retired and after his retirement, the entire retiral benefits have been extended to him save and except the amount of gratuity and also petitioner was not allowed to commute the pension as per the provision of Pension Rules. The petitioner made several representations but to no effect. 4. Subsequently, the State of Jharkhand came-up with one notification dated 23.07.2018, whereby it was made clear that Rule 43(c) was brought into force with a view that gratuity amount and commutation of pension will not be allowed to the employees after retirement if there is pending criminal case/ departmental proceeding against them. 4. Subsequently, the State of Jharkhand came-up with one notification dated 23.07.2018, whereby it was made clear that Rule 43(c) was brought into force with a view that gratuity amount and commutation of pension will not be allowed to the employees after retirement if there is pending criminal case/ departmental proceeding against them. Thereafter, the respondents passed an order on 23.04.2019, holding that the petitioner shall not be entitled for the benefits of gratuity and commutation of pension during the pendency of ongoing criminal case i.e. Vigilance P.S. Case No. 15 of 2009, due to coming into force a new Rule i.e. Rule 43(c). Aggrieved by the same, the petitioner has knocked the door of this Court. 5. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner strenuously urges that the impugned order dated 23.04.2019 is not tenable in the eyes of law as the respondent-authorities have passed the order in total contravention of the law laid down and the order dated 08.10.2020 passed by this Court in L.P.A. No. 408 of 2019 (State of Jharkhand & Ors. Vs. Laljit Prasad Sinha). Further, it has been argued that the respondents cannot withhold the pension and gratuity on the garb of Rule- 43(C) of Pension Rules, since the petitioner has superannuated prior to coming to force of the said Rule. Learned counsel further argues that the issue is now no more res-integra and the same has been settled upto the Hon’ble Apex Court in case of Jitendra Kumar Srivastava Vs. State of Jharkhand & Ors. [ (2013) 12 SCC 210 ] and also by the Full Bench of this Court in case of Doodh Nath Pandey Vs. State of Jharkhand & Ors. [2007 (4) JCR 1], wherein it has been categorically observed that pendency of criminal case or departmental proceeding cannot come in the way of payment of pension and gratuity to an employee. Learned counsel further submits that if a direction be given to the respondent-State to release the entire amount of pension and gratuity and pass an order to that effect within a stipulated period of time. 6. Mr. Bhaskar Trivedi, learned counsel appearing for the respondent- State very fairly submits that case of the petitioner is similar to that of Jitendra Kumar Srivastava Vs. State of Jharkhand & Ors. (supra) and as such, he is entitled for pension and gratuity. 6. Mr. Bhaskar Trivedi, learned counsel appearing for the respondent- State very fairly submits that case of the petitioner is similar to that of Jitendra Kumar Srivastava Vs. State of Jharkhand & Ors. (supra) and as such, he is entitled for pension and gratuity. However, it has been fairly submitted that till date no decision regarding final fixation of the pension and gratuity has been taken by the respondents and if this Court directs, the case of the petitioner shall be considered taking into account the settled proposition of law and considering the observations made by this Court in L.P.A. No. 408 of 2019. 7. Mr. Sudarshan Srivastava, learned counsel appearing for the respondent-Accountant General submits that till date the respondent-State has not taken any decision regarding final fixation of pension and gratuity of the petitioner. Learned counsel further argues that the law is very clear and the legal proposition has been set at rest upto the Hon’ble Apex Court that during the pendency of the criminal case, the respondents cannot withhold the retiral benefits of an employee. 8. Be that as it may, having heard the rival submissions of learned counsel for the parties and upon perusal of the documents brought on record this Court is of the considered view that the impugned order dated 23.04.2019 is not tenable in the eyes of law for the following facts and reasons: I) This Court in case of Doodh Nath Pandey Vs. State of Jharkhand & Ors. (supra), has clearly held that during the pendency of criminal case, the respondents cannot withhold the pension and gratuity of an employee. The said view of this Hon’ble Court has been affirmed by the Hon’ble Apex Court in case of Jitendra Kumar Srivastava Vs. State of Jharkhand & Ors. (supra). II) The respondent-State came out with a gazette notification dated 23.07.2018 by which a new Rule i.e. Rule-43(c) has been inserted in Jharkhand Pension Rules, wherein it has been mentioned that during the pendency of the criminal case or department proceeding, the State is empowered to withhold the pension and gratuity of an employee. However, the said issue fell for consideration before this Court in L.P.A. No. 408 of 2019 and this Court was of the view that the legal propositions as propounded by the State Government as per gazette notification dated 23.07.2018 can have a prospective effect and not retrospective effect. However, the said issue fell for consideration before this Court in L.P.A. No. 408 of 2019 and this Court was of the view that the legal propositions as propounded by the State Government as per gazette notification dated 23.07.2018 can have a prospective effect and not retrospective effect. III) Admittedly, the petitioner has superannuated on 31.01.2018 i.e. prior to the date of notification of Rule-43(c) of the Pension Rules, and as such, the impugned order dated 23.04.2019 issued by the respondents, whereby the pension and gratuity of the petitioner has been withheld is not tenable in the eyes of law in view of law laid down by this Court in L.P.A. No. 408 of 2019. 9. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncement, the impugned order dated 23.01.2019 being not tenable in the eyes of law, is hereby quashed and set aside. However, it is open for the respondent-State to come out with final fixation of pension and gratuity and if there is no other legal impediment, release the entire benefits to the petitioner, within a period of six weeks from the date of receipt/ production of a copy of this order. 10. With the aforesaid observations and directions, the writ petition stands allowed.