Manorama Jha vs State of Jharkhand And Ors

Heard Mr. Rohit Sinha, the learned counsel appearing on behalf of the petitioner, Mr. Shadab bin Haque, the learned counsel appearing on behalf of

the respondent State of Jharkhand, Mr. Diwakar Upadhyay, the learned counsel appearing on behalf of the respondent State of Bihar and Mr.

Sudarshan Srivastava, the learned counsel appearing for the respondent No.4[Accountant General].

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner is happened to be the widow of late Dr. Krishna Bandhu Jha, who died on 22.05.2015 and that is why she has come before this

Court.

The petitioner has preferred this writ petition for quashing the order dated 02.01.2004 passed by the Government of Jharkhand whereby 10 % of

Gratuity and Pension has been directed to be withheld. The prayer for releasing of the said 100 % pension and gratuity were also made. Prayer for

penal interest is also made.

The husband of the petitioner was appointed on 02.12.1966 on the post of Medical Officer in the department of Health in the erstwhile State of

Bihar. Subsequently, in view of bifurcation of the State of Bihar, the petitioner was allocated the State of Jharkhand cadre and superannuated on

31.01.2001 from the post of Civil Surgeon-cum- Medical Officer, Giridih. A show cause was issued in the year 1998 for the alleged purchase of the

medicine which was replied by the husband of the petitioner.

The learned counsel for the petitioner submits that the petitioner has also moved in W.P.(S) No.6607/2002 which was disposed of with a direction

to consider the case of the petitioner. He further submits that the husband of the petitioner has not received any show cause, except a show cause

dated 19.05.1998 which was duly replied nor any departmental or criminal case is pending against the husband of the petitioner. He submits that no

departmental proceeding has been initiated against the husband of the petitioner. By way of referring the impugned order dated 02.01.2004, he submits

that only on the basis of one letter of the State of Bihar the said order has been passed by the State of Jharkhand whereby 10 % pension and gratuity

has been directed to be withheld. He submits that there is no finding of any loss in terms of Rule 43(b) which is a condition precedent for passing such

order. He further submits that there was no departmental proceeding initiated against the husband of the petitioner before his superannuation. He

submits that in that view of the matter, Rule 43(2)(b) has wrongly been applied that too, on a letter of 2001 by the State of Bihar. He submits that the

State of Jharkhand was required to take independent decision irrespective of the document of the Government of Bihar.

The learned counsel for the respondent State of Jharkhand has tried to justify the order and submits that there is no material before the State of

Jharkhand and the State of Jharkhand was compelled to take decision in light of 2001 order of the State of Bihar.

Mr. Upadhyay, the learned counsel for the respondent State of Bihar submits that pursuant to the order of this Court dated 25.11.2020 a

supplementary counter affidavit dated 04.02.2021 has been filed on behalf of the respondent State of Bihar. By way of referring paragraph no.5 of the

said supplementary counter affidavit, he submits that the office of the Superintendent of Police, Central Bureau of Investigation, Animal Husbandry

Department Branch, Patna informed vide letter dated 22.01.2021 wherein it has been stated that no MSD scam against Dr. Krishna Bandhu Jha, the

then District Tuberculosis Officer, Hazaribagh is pending.

Having heard the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record including the impugned

order dated 02.01.2004. The said order was passed pursuant to the order of this Court in W.P.(S) No.6607 of 2002 whereby 10% of the pension and

gratuity was directed to be withheld on the strength of the letter dated 11.07.2001 by the Government of Bihar and that too, applying Rule 43(b) of

Pension Rules. This order has been passed on the strength of Government of Bihar letter dated 11.07.2001 which was not required to be considered in

view of the fact that now the petitioner was in the cadre of the State of Jharkhand and the State of the Jharkhand was required to take independent

decision with regard to the husband of the petitioner. Rule 43(b) is not applicable in the facts and circumstances of the present case and in view of the

fact that no departmental proceeding before the retirement was pending against the husband of the petitioner. There is no finding to that effect any

loss has occurred to the State of Jharkhand and for Rule 43(b) finding of loss is condition precedent. In the supplementary counter affidavit, in clear

terms the State of Bihar has now disclosed that there is no MSD scam against the husband of the petitioner is pending. The case of the petitioner is

fully covered in the light of the judgment rendered by Hon'ble Supreme Court in the case of 'State of Jharkhand v. Jitendra Kumar Srivastav' (2013)

12 SCC 210. Paragraph nos.11 and 16 of the said judgment are quoted hereinbelow:

From the reading of the aforesaid Rule 43(b), following position emerges:

(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave

misconduct either in a departmental proceeding or judicial proceeding.

(ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending.

(iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings.

(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.

The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in ""property"". Article

300-A of the Constitution of India reads as under:

300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law.

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be

deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that

attempt of the appellant 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 a cumulative effect of the above discussion, the impugned order cannot sustain in the eye of law and accordingly, the impugned order dated

02.01.2004 is quashed. The petitioner shall be entitled for consequential benefits.

The respondent State of Jharkhand is directed to release the entire pension and gratuity, 10% of pension and gratuity so withheld within twelve

weeks.

The prayer of interest to the petitioner is not being considered by this Court in view of the fact that the petitioner has approached this Court in the

year 2019 whereas the impugned order was passed in the year 2004.