1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2205 of 2015 Mrinal Kant Mishra, son of Late Bhupendra Mishra, Resident of Qr. No. CD 435, Sector3, PO, PS Dhurwa & Dist. Ranchi … Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Human Resources Department, Govt. of Jharkhand, having office at Project Building, PO & PS Dhurwa, Dist. Ranchi 3. The Director, Secondary Education, Human Resources Department, Govt. of Jharkhand, having office at Project Building, PO & PS Dhurwa, Dist. Ranchi 4. The Deputy Director, Regional Education, Govt. of Jharkhand, Palamau, PO & PS Palamu, Dist. Medninagar 5. The The District Eudcation Officer, Palamu, PO & PS Palamu, Dist. Medninagar 6. The Accountant General, Hinoo, PO Hinoo, PS Doranda, Dist. Ranchi ... Respondents CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner :Mr. D. K. Pathak, Advocate Mr. Shashi Kant Mishra, Advocate Mrs. Sweta Rani, Advocate Mr. Saket Upadhyay, Advocate For the RespondentState : Mr. Amit Kumar, JC to GP II For the Respondent No.6 : Mr. Gautam Rakesh, Advocate 10/27.10.2016 Deduction of Rs. 1,96,064/ from the gratuity has compelled the petitioner to approach this Court. 2. Heard. 3. Mr. D. K. Pathak, the learned counsel for the petitioner referring to the specific pleading in the writ petition, submits that without issuing a showcause notice disclosing the allegation against the petitioner and without initiating a proceeding under Jharkhand Pension Rules, 2000, Rs. 1,96,064/ has been deducted from the gratuity of the petitioner. It is contended that deduction of the aforesaid amount from the gratuity is not permissible under the Payment of Gratuity Act, 1972, and in any event the impugned order dated 22.01.2015 cannot be sanctioned in law, on the ground that it 2 has been passed in gross violation of the rules of natural justice.
4. Per contra, Mr. Amit Kumar, the learned State counsel, referring to various communications, submits that after the petitioner superannuated from service it was detected that he had committed financial irregularity and thereafter, he was issued notice to participate in the enquiry and only after it was found that an amount of Rs. 1,96,064/ is recoverable from the petitioner, order dated 22.01.2015 was passed by the Director, Secondary Education, Human Resources Department, Government of Jharkhand. It is contended that an employee who has misappropriated Government fund cannot take a plea of breach of rules of natural justice, and it is well within the jurisdiction of the department to recover the loss caused to it from the retiral benefits of the employee.
5. Before testing the sustainability of the impugned order dated 22.01.2015, it would be useful to notice relevant provisions under Jharkhand Pension Rules, 2000 and Payment of Gratuity Act, 1972. 6. In the context of issue raised in this case, it is pertinent to record that right to receive pension is a valuable right of an employee, and ordinarily pension includes gratuity. In “Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Ors.” reported in (2000) 6 SCC 493, it has been held that, “the payment of gratuity is no longer in the realm of charity but a statutory right provided in favour of the employee”.
7. Subsection (6) of Section 4 reads as under : “4. Payment of gratuity. … … … (6) Notwithstanding anything contained in subsection (1), (a) the 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 3 extent of the damage or loss so caused; (b) the gratuity payable to an employee may be wholly or partially forfeited (i) If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.”
8. Section 4(6) specifies that, subject to the conditions mentioned thereunder, there is a statutory bar on withholding or forfeiting the amount of gratuity. Section 7(3) of the Act provides that the employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable, to the person to whom the gratuity is payable. As per Section 7(3A), if the amount of gratuity payable under subsection (3) is not paid by the employer within the period specified in subsection (3), the employer shall pay simple interest from the date on which the gratuity becomes payable. However, proviso to Section 7(3A) provides that no interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground. The provisions under Sections 13 and 14 of the Act reinforce that the gratuity payable to an employee is a valuable right which is protected under the Payment of Gratuity Act, 1972. 9. The petitioner has pleaded that without resorting to Rule 43 (b) of the Jharkhand Pension Rules, 2000, the deduction from the gratuity payable to him has been made. Rule 43 (b) of the Jharkhand Pension Rules, 2000 reads as under : “43 (b) : The State Government further reserve to themselves the right of withholding or withdrawing a 4 pension or any part of it, whether permanently or for a 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: Provided that (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment, shall have been instituted in accordance with subclause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation For the purposes of the rule (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and 5 (b) judicial proceedings shall be deemed to have been instituted : (i) in the case of criminal proceedings, on the date on which a compliant is made or a chargesheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil court.”
10. It is not in dispute that if it is found that the employee has committed a misconduct causing loss to the department or he has been found guilty of misconduct in a departmental or judicial proceeding, within four years the department may initiated a proceeding to recover the amount of loss caused to it from the employee. However, it also cannot be disputed that before recovering the loss caused to the department, a showcause notice to the employee is mandatory. Not only that, the department is also required to initiate an enquiry for quantifying the loss caused to it, if the loss cannot be quantified on the basis of undisputed and unimpeachable document. 11. In the instant case, the specific stand taken by the petitioner is that neither a showcause notice was issued to him nor any enquiry followed in which he was afforded an opportunity to meet the charges. The stand of the petitioner, that before the impugned order dated 22.01.2015 was passed procedure under the Pension Rules was not followed, has not been denied by the respondents. The respondents have simply produced a copy of the letter dated 08.12.2014 through which the petitioner was directed to remain present for verification. Thereafter, no notice was issued to the petitioner, indicating the allegation and the amount of loss caused by him to the department. The communications within the department indicate that respondent no. 4 on the basis of certain materials arrived at a conclusion that an amount of Rs. 1,96,064/ has to be recovered from the petitioner. Neither a copy of 6 communication dated 17.12.2014 was supplied to the petitioner nor the documents on the basis of which respondent no. 4 concluded that Rs. 1,96,064/ is recoverable from the petitioner, were brought to his notice. The allegation is that the petitioner purchased certain articles without approval and at higher rate than the market price. Obviously, the materials on the basis of which the department has levelled such allegations and came to a conclusion that an amount of Rs. 1,96,064/ is the loss caused to it, should have been specifically brought to the notice of the petitioner, before deduction from the amount of gratuity payable to him was made. No doubt, the amount of loss caused by the employee can be recovered from the gratuity payable to a retired employee, however, that is permissible only in terms of Section 4(6) of the Payment of Gratuity Act, 1972 or under Rule 43 (b) of Jharkhand Pension Rules, 2000. The procedure laid down, under the aforesaid statutes which must be adhered to, has not been followed in this case. The procedure adopted by the department for recovery of Rs. 1,96,064/ from gratuity payable to the petitioner, cannot be sanctioned in law. 12. In view of the aforesaid discussion, the impugned order dated 22.01.2015 is found unsustainable and accordingly, it is quashed.
13. The writ petition stands allowed, however, in view of scanty pleadings and foundational facts the prayer seeking grant of interest on the amount of Rs. 1,96,064/ is declined. (Shree Chandrashekhar, J.) Amit/A.F.R