IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 1384 of 2013 Arjun Prasad Shukla, S/o Raj Kishore Shukla, Resident of Village:-Sankha, Post:-Ketat, P.S.:-Rehala, District:-Palamau, State:-Jharkhand. .... Petitioner Versus 1. The State of Jharkhand.
2. The Secretary, Department of Human Resources Development, Government of Jharkhand, Ranchi, P.O. +P.S.-Dhurwa, District:-Ranchi.
3. The Director, Primary Education, Government of Jharkhand, Project Building Dhurwa, P.O.+P.S.-Dhurwa, District:-Ranchi, State Jharkhand.
4. The Deputy Commissioner, Garhwa, P.O.+P.S. & District:-Garhwa.
5. The District Superintendent of Education, Garhwa, P.O.+P.S. & District:- Garhwa, State:-Jharkhand. ... Respondents --- CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK --- For the Petitioner : M/s Mahesh Tewari & Anand Kr. Pandey, Advocates For the Respondents : M/s L.C.N. Shahdeo, G.P. IV & Rajesh Kr. Singh, J.C to G.P. IV ----- 07/07.09.2016 In the accompanied writ application, the petitioner has inter-alia prayed for appropriate writ in the nature of mandamus commanding upon the respondents for payment of withheld retiral amount to the tune of Rs. 96,000/- alongwith interest thereon and also for a direction upon the respondents for payment of salary during the period of suspension after deducting the subsistence allowance, paid to the petitioner.
2. The factual matrix, as disclosed in the writ application is that the petitioner had retired as Headmaster of Harijan Middle School, Garhwa in the year 2000 rendering satisfactory services. By virtue of supplementary affidavit, filed on 12.02.2014, the petitioner has brought on record the copy of show cause notice dated 12.6.2005, under Rule 43(b) of the Pension Rule, as Annexure-6 and the subsequent order dated 26.08.2006 as Annexure-7 to the writ application. By this order dated 26.8.2006 a decision has been taken to deduct Rs.96,000/- from the pensionary dues of the petitioner and Annexure-8 dated 15.07.2008 and Annexure 9 dated 15.07.2008 are the consequential orders in that regard. During the pendency of the writ application, I.A No.2543 of 2014 has been filed, and this Court vide order dated 18.9.2014 has been pleased to observe that by an order contained in Memo No. 1993 dated 26.08.2006, issued by the District Superintendent of Education, Garhwa, a sum of Rs.96,000/- has been deducted from the post- retiral dues of the petitioner after his retirement on 31.01.2000 from the post of Headmaster. The same has been sought to be challenged in the present writ application, wherein originally the petitioner has sought payment of his entire post retirement benefits and also made a claim that the amount of Rs. 96,000/- as aforesaid, should not be withheld after he has been acquitted in a criminal case vide judgment dated 31.07.2012. An amendment sought for, has been allowed by this Court and the proposed amendment has been treated as part of the main writ application.
3. Learned counsel for the petitioner has strenuously urged before this Court that the action of the respondent in deducting of Rs.96,000/- from the post-retiral benefits of the petitioner is in the teeth of the settled proposition of law, as has been decided by the Full Bench by this Court in the case of Dr. Dudh Nath Pandey Vs. State of Jharkhand & Ors.. Learned counsel for the petitioner has further submitted that the action of the respondents in deducting Rs.96,000/- has been passed in utter violation of Rule 43(b) of the Pension Rule and sum of Rs. 34,000/- has already been recovered from the pension of the petitioner. Learned counsel for the petitioner, accordingly, submits that direction be issued to the respondents to refund the amount alongwith interest.
4. Controverting the averments made in the writ application, a counter has been filed by the respondents wherein it has been submitted that Rs.62,698/- has been deducted from the leave encashment amount of the petitioner, as indicated in paragraph 5 of the counter-affidavit. Learned counsel for the State has assiduously submitted that prior to recovery of Rs.96,000/- a show cause notice had been issued to the petitioner. Learned counsel for the State by referring to supplementary counter-affidavit dated 19.08.2014, has further submitted that on issuance of P.P.O. & G.P.O. a last payment certificate regarding payment of pension/gratuity is being issued in favour of concern treasury officer by the sanctioning authority. On perusal of memo dated 14.11.2008, it is crystal clear that the said last payment certificate has already been issued by the then answering respondent in favour of Treasury Officer, Garhwa and the procedure has already been done and admissible amount have been paid to the petitioner except the amount of Rs.96,000/- out of which Rs.62, 698/- has been recovered from the leave encashment and from the pensionary benefits.
5. After hearing learned counsel for the respective parties at length and on perusal of the evidences on records, it appears that the respondent authorities vide memo dated 26.08.2006 issued by the District Superintendent of Education, Garhwa, a sum of Rs.96,000/- has been deducted from the post-retiral dues of the petitioner after his retirement on 31.01.2000. (i) The deduction of Rs.96,000/- has been done in clear in fraction of Rule 43(b) of Bihar Pension Rule. For better appreciation of this fact, Rule 43(b) is quoted hereinbelow:- 43(b). The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on reemployment after retirement. (ii) The issue regarding the power of the Government to withhold pension and gratuity on the ground of Rule 43 (b) is no more res-integera., in view of the decision of the Full Bench of this Court as reported in 2013 (4) JBCJ421[HC] in the case of Dr. Dudh Nath Pandey Vs. State of Jharkhand & Ors. In the light of the above rulings, I am of the considered view that the action of the respondents in deducting Rs.96,000/- from the post-retiral dues of the petitioner is uncalled for being legally unsustainable and is also bereft of power, exercised by the District Superintendent of Education, Garhwa, i.e. respondent no.1. (iii) That the action of the respondents withholding of Rs.96,000/- from the post-retiral benefits is hit by Article 300-A of the Constitution of India. Which inter-alia envisages that the State Government cannot take recourse to the executive power of the State under Article 162, depriving a person from his property. Such power can be exercise only by the authority of law and not by a mere executive fiat or order. Be that as it may, the grievance of the petitioner appears to be justified. (iv) In that view of the matter, I am of the considered view that the respondents having exercised the power in withholding the deduction of the amount of Rs.96,000/- from the post-retiral dues of the petitioner, the same being in fraction of the aforesaid decision, cannot be sustained in the eye of law. Hence, the respondents are directed to refund the aforesaid amount of Rs.96,000/-, which has been directed to be recovered from the post-retiral dues alongwith statutory interest thereon if any, and respondents are directed to pay admissible salary during period of suspension excluding subsistence allowance already paid to petitioner within a period of 12 weeks from the date of receipt of a copy of this order. With the aforesaid direction, the writ petition stands allowed. (Pramath Patnaik, J.) RKM