Deo Darshan Singh vs The State of Jharkhand and Others

Aparesh Kumar Singh, J.—Heard counsel for the parties. The grievances of the petitioner in the instant case is that by the impugned order contained at memo No. 4380 dated 25.8.2012 passed by the respondent No. 2 pursuant to the directions passed earlier in W.P.S. 2724 of 2011, 25% of the final pension and gratuity amount has been withheld by granting 75% of the aforesaid amount.

According to the petitioner he was an employee of Water Resources Department and retired on 31.1.2011 while under deputation in the Rural Development Special Division as In-charge Executive Engineer. In such circumstances, he had approached this Court for payment of post retirement dues in W.P.S. 2724 of 2011 which was disposed of with a direction to the competent Authority i.e. Principal Secretary. Water Resources Department to decide the same in accordance with law within stipulated time. Thereupon, the impugned order has been passed contained at Annexure-3 dated 25.8.2012 by the respondent No. 2.

Learned counsel for the petitioner submits that the aforesaid post retirement dues i.e. pension, gratuity to the extent of 25% has been withheld allegedly on the ground of pendency of a criminal case being Barkagaon P.S. Case No. 129 of 2009 in which he was not named as accused. It is further submitted that subsequently another F.I.R. has been registered being Hazaribagh (Sadar) P.S. Case No. 175 of 2013 instituted by the Executive Engineer of the concerned Department. However, it is submitted on behalf of the petitioner that no proceedings have been initiated under Rule 43(b) of the Jharkhand Pension Rules and merely on the ground of pendency of the criminal case, which has been instituted against him in 2013 such amount cannot be withheld in view of the ratio laid down in the Full Bench judgment rendered by this Court in the case of Dr. Dudh Nath Pandey Vs. The State of Jharkhand, The Secretary, Animal Husbandry and Fishery Department, Government of Jharkhand, The Joint Director (Director) (Poultry), Animal Husbandry Department and The Accountant General, Learned counsel for the petitioner submits that the matter has also been considered by the Apex Court in Civil Appeal No. 6770 of 2013 arising out of SLP (Civil) No. 1427 of 2009 preferred by the State of Jharkhand itself. It is submitted by learned counsel for the petitioner that the Hon''ble Supreme Court in the said judgment dated 14.8.2013 while posing the question that whether part of pension and/or gratuity during the pendency of the departmental/criminal proceedings can be withheld or not upheld the judgment of this Court and answered the question so posed. It is submitted that the Hon''ble Supreme Court has clearly held that the person cannot be deprived of his pension without the authority of law and any attempt of the appellant-State Government to take away part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. Therefore, the respondents are not justified in withholding the aforesaid amounts.

Counter affidavit has been filed by the respondent No. 6. Learned counsel for the respondents submitted that the aforesaid amount has been withheld on the basis of an order passed in view of the inquiry pending against the petitioner and other engineers with regard to the allegation of illegal withdrawal of Government money. He has referred to Annexure-B dated 2.3.2013 issued by the Deputy Development Commissioner, Hazaribagh wherein such committee has been constituted to submit its report after due inquiry. In such circumstances, he has submitted that F.I.R. has been lodged against the petitioner and the departmental proceeding is under process, therefore 25% of the aforesaid amount has been withheld and not entire retiral benefits.

I have heard counsel for the parties at length and gone through the relevant materials on record including the impugned order. From the facts which are narrated hereinabove it appears that the petitioner has been implicated in a criminal case instituted by the Executive Engineer of the Rural'' Development Special Division, Hazaribagh. Petitioner has retired on 31.1.2011 from the substantive post of Assistant Engineer while working as In-charge Executive Engineer, Rural Development Special Division Department. Further, it is also not in dispute that neither any departmental proceeding has been initiated nor has been concluded against him. It is also not in dispute that the criminal case which has been lodged as aforesaid has also not been concluded. In such circumstances, the stand of the respondents to withheld 25% of the pension and gratuity amount of the petitioner simply on institution of F.I.R. cannot be countenanced in view of the Full Bench judgment of this Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand (supra) as also the judgment rendered by the Hon''ble Supreme Court-in Civil Appeal No. 6770 of 2013 Reported in State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another, vide judgment dated 14.8.2013 in the State of Jharkhand & Others vs. Jitendra Kumar Srivastava & Another.

In such circumstances, the impugned order by which 25% of the amount of pension and gratuity has been withheld cannot be sustained in law and is accordingly, quashed. Consequently, the respondents shall pay the rest of the post retirement pension and gratuity amount to the petitioner. The writ petition is disposed of in the aforesaid terms.