1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5092 of 2015 Indra Kumar Sinha, Son of Chandrika Prasad, resident of Kalisthan Road, P.O. GPO, Ranchi, P.S. Lower Bazaar, District Ranchi. ….. Petitioner Versus 1. The State of Jharkhand.
2. Commissioner, South Chhotanagpur Division, Ranchi, P.O. GPO, PS- Kotwali, District Ranchi.
3. Deputy Commissioner, Ranchi, P.O. GPO, PS-Kotwali, District Ranchi.
4. District Establishment Deputy Collector, Ranchi, P.O. GPO, PS-Kotwali, District Ranchi.
5. Accountant General, Jharkhand, Ranchi, P.O. Hinoo, P.S-Doranda, District Ranchi. ….. …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : Mr. Ashim Kr. Sahani, Advocate For the Respondents-State : Mr. Yogesh Modi, J.C to A.A.G. For the respondent no.5 : Mr. Gautam Rakesh, Adv. ----------- th 7/Dated:16 November, 2016 Per Pramath Patnaik, J.:
1. In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents for payment of 100% pension and gratuity and other retiral dues with interest @ 12% per annum from the date of due till its actual payment.
2. Sans details, the facts as disclosed in the writ application is that petitioner was posted as Dealing Assistant (Clerk) in the office of the Circle Officer, Town Anchal, Ranchi till 25.07.1983 and thereafter, he was posted as Revenue Dealing Assistant. The petitioner was implicated in Vigilance P.S. Case No.33 of 2002 (Special Case No.38 of 2002) on the allegation that the petitioner was involved in creation/opening of illegal demand in mutation proceeding and departmental proceeding was initiated against the petitioner giving rise to charge sheet. Thereafter, vide Annexure-2, inquiry in respect of alleged charges was conducted and the report of the inquiry officer was recommended for punishment of censure and withholding of three annual increments with cumulative effect. Thereafter, vide Annexure- 3, respondent no.3 vide order dated 20.02.2006 imposed the punishment of withholding of three annual increments with cumulative effect and also withheld the salary during the period of suspension. Against the order dated 20.02.2006, the petitioner preferred appeal before the respondent no.2, whereby vide order dated 22.05.2008 the respondent no.2 disposed of the 2 appeal by setting aside the order of punishment imposed against the petitioner. Thereafter, petitioner preferred revision before the Member, Board of Revenue, Jharkhand, Ranchi against the order passed by the appellate authority and vide Annexure-6 to the writ application, the learned Member, Board of Revenue, Jharkhand, Ranchi remitted the matter to the disciplinary authority for consideration of the matter afresh, giving sufficient opportunity to the petitioner. Thereafter, vide Annexure-7 dated 30.05.2014, the Circle Officer, Town Anchal, Ranchi submitted a report to the Additional Collector-cum-Enquiry Officer, Ranchi in response to his direction observing therein that the charges levelled against the petitioner is not proved. The petitioner retired on 28.02.2015 on attaining the age of superannuation, after rendering more than 38 years of service. After retirement from Government services, the respondent no.4 sanctioned 75% of provisional pension to the petitioner and 75% of the provisional gratuity, as evident from Annexures-8 and 9 of the writ application. Annexure-10 of the writ application also reveals that the petitioner has been sanctioned leave salary. Annexure-11 also reveals that the respondent no.4 has issued sanction order for payment of Group Insurance. It is averred in the writ application that the Special Case No.38 of 2002 is pending and no charge has yet been framed against the petitioner till filing of the writ application. It is also averred in the writ application that no proceeding either under Rule 43(b) or Rule 139 of Jharkhand Pension Rules has been initiated against the petitioner. Therefore, the petitioner is entitled to balance 25% of the pension and gratuity and the action of the respondents in withholding 25% of the pension and gratuity in absence of proceeding either under Rule 43(b) or Rule 139 of Jharkhand Pension Rules is unlawful, unjust and without authority of law.
3. Learned counsel for the petitioner has vehemently submitted that the action of the respondents in withholding 25% of pension and gratuity in the absence of any proceeding under Rule 43(b) or Rule 139 of Jharkhand Pension Rules, is without jurisdiction and without any authority of law. Learned counsel for the petitioner further submits that the action of the respondents is violative of Articles 14, 19(1) (g) and 21 of the Constitution of India. Learned counsel for the petitioner further submits that illegal withholding of the post retirement benefits by the respondents, is against the settled principles of law, which has been decided in the case of Dr. Dudh 3 Nath Pandey vs. State of Jharkhand and Ors. reported in (2013) 3 JLJR655 By referring to the aforesaid decision learned counsel for the petitioner submits that the petitioner is entitled to withheld amount of pension and gratuity along with the interest.
4. In order to buttress his submission, learned counsel for the petitioner has referred to the decision reported in 2014 (4) JBCJ110[SC] (D.D. Tewari (D) Thr. LRs. Vs. Uttar Haryana Bijli Vitran Nigam Ltd. & Ors.) wherein the Hon’ble Apex Court has been pleased to hold that payment of pension and gratuity amount are no longer any bounty to be distributed by Government to its employees on their retirement, but, have become valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be dealt with penalty of payment of interest at current market rate till actual payment to employees. Respondents have erroneously withheld payment of gratuity amount for which appellants are entitled in law for payment of penal amount on delayed payment of gratuity. Nine per cent interest ought to be awarded on delayed payment of pension and gratuity amount from date of entitlement till date of the actual payment. If this amount is not paid within six weeks, same shall be carry 18% interest from the date amount falls due to deceased employee.
5. Learned counsel for the petitioner has also referred to the decision reported in 2013(3) JLJR (SC) 537 (State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr.) wherein the Hon’ble Apex Court has been pleased to hold that there is no provision in the Rules for withholding of pension/gratuity when such departmental or judicial proceedings are still pending. Right to receive pension is recognized as a right in property and a person cannot be deprived of his pension without the authority of law, which is the constitutional mandate enshrined under Article 300 A of the Constitution of India. Attempt of the Government to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced as the executive instructions are not having statutory character and therefore cannot be termed as law within the meaning of Article 300 A. On the basis of a circular no having force of law, appellants (Government) cannot withhold even a part of pension or gratuity.
6. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent nos.2 to 4. Mr. Yogesh Modi, J.C. 4 to A.A.G by referring to paragraph nos.9 and 10 of the counter affidavit, has reiterated the submissions made in the counter affidavit. It has been stated in the counter affidavit that petitioner has been sanctioned 75% of the provisional gratuity and 75% of the provisional pension per month as well as admissible dearness and medical relief because of involvement in Vigilance P. S. Case No.33 of 2002 and Special Case no.38 of 2002 as per Annexure- A and B to the counter affidavit. It has further been stated in the counter affidavit that departmental proceeding against the petitioner has been kept abeyance till the final decision of the vigilance cases as per the order dated 25.02.2016 passed by the learned Deputy Commissioner, Ranchi and the departmental proceeding against the petitioner has been continued in the light of Rule 43(b) of the Bihar adopted Jharkhand Pension Rules, 1950 as per Annexure-C to the counter affidavit. Learned counsel for the State submits that in view of the pendency of the vigilance cases, pension and gratuity have been withheld, which cannot be construed to be an illegal act on the part of the respondents.
7. After hearing learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons: (I) There is no gainsaying of the fact that the departmental proceeding against the petitioner under Section 43(b) of the Jharkhand Pension Rules has not culminated into any punishment of forfeiture of pension and gratuity and the respondent authority on the garb of pendency of Vigilance cases, have withheld the balance 25% of pension and gratuity in misconstruing the Rule 43(b) of the Pension Rules. (II) For better appreciation, it would be apposite to refer to Rule 43(b) of the Jharkhand Pension Rules, which reads as under: “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 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 re-employment after retirement:
5. (III) In view of the decision of Full Bench judgment of this Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Ors., it is no more res integra that under Rule 43(b) of the Jharkhand Pension Rule, there is no power vested with the Government to withhold pension and gratuity during pendency of the departmental proceeding or criminal proceeding. In the case in hand, neither departmental proceeding nor criminal proceeding has been concluded so as to arrogate the power to the Government to withhold part of the pension or gratuity, therefore, the action of the respondents in absence of any conclusion of departmental or criminal proceeding in withholding the post retirement benefits like pension and gratuity, is unlawful and without jurisdiction and cannot be sustained in the eye of law. (IV) Law is well settled that the pension and gratuity are no more bounty nor gratuitous and in case of delayed payment, an employee is entitled to interest on the post retirement benefits and pension and gratuity are right of property under Article 300 A of the Constitution of India and no person shall be deprived of his property save by authority of law. The respondents have erroneously withheld the part payment of gratuity and pension amount, which the petitioner is entitled under the law and, therefore, for delayed payment the petitioner is entitled to interest from the due date till its actual payment. Since, in the instant case substantial amount have already been paid to the petitioner, the petitioner is entitled for payment of admissible withheld post retirement benefits within a stipulated period.
8. In view of the discussions made in the foregoing paragraphs and as a logical sequitur to the reasoning sated hereinabove, the respondents are directed to pay the admissible post retirement benefits like gratuity and pension and arrears of pension, if any, within a period of three months from the date of receipt of a copy of the order. If the aforesaid amount is not paid within the stipulated period, the same shall be paid to the petitioner with interest @12% per annum from the due date till its actual payment.
9. With the aforesaid direction, the writ petition stands allowed. (Pramath Patnaik, J.) Saket/-