SHAYAMAL KUMAR AIKAT vs STATE OF JHARKHAND

The petitioner is aggrieved of order dated 05.02.2016 by which he has suffered penalty of recovery of Rs.3, 62,200/- (one time) forthwith. He

seeks a direction upon the respondents for payment of pension and other post-retiral benefits.

Plea taken by the respondents resisting the claim for pension is mainly founded on the letter and affidavit allegedly submitted by the petitioner under

which he has admitted retention of Rs.10,44,200/- and before the enquiry officer he gave an undertaking that he would pay Rs.3,62,200/-, which was

the unadjusted amount while he was posted at Itkhori. On the allegation of unadjusted amounts, the petitioner was placed under suspension and a

First Information Report was lodged against him for mis-appropriation of Rs.3,62,200/-. The punishment order for recovery of Rs.3, 62,200/- has

been passed on 05.02.2016, after the petitioner superannuated from service on 31.12.2015. Â

In the counter-affidavit, the respondents have produced photocopy of Advance Register which would disclose Rs.10, 74,200/- as unadjusted

amount. This pertains to payments to the petitioner during the period 22.09.2008 to 2011. The respondents have produced an affidavit dated

02.09.2011 under which the petitioner has allegedly admitted Rs.10, 44,200/- as unadjusted amount. The affidavits filed by the respondents would

disclose that it was not the petitioner alone who is responsible for non-adjustment of Rs.10, 44,200/- as well as Rs.3, 62,200/-. It appears that the

counter-affidavit dated 22.03.2018 did not disclose the complete facts and when a plea was raised on the above ground for resisting the prayer for

payment of pension and post-retiral benefits to the petitioner, that Rs.10, 44,200/- has still remained unadjusted, after this Court expressed its

displeasure vide order dated 22.03.2018 a supplementary                         counter-affidavit dated

24.03.2018 was filed. Taking the facts pleaded by the respondents in the affidavits correct, the question which arises is why after 02.09.2011 steps

were not taken by the respondent-Deputy Commissioner, Chatra for recovery of Rs.10,44,200/- (Rs.10,74,200/- as claimed by the respondents). If

on the ground of not adjusting Rs.3,62,200/- the petitioner can suffer a departmental proceeding and registration of a criminal case, why against the

Deputy Commissioner, Chatra no proceeding was initiated. Every year all expenditures, plan as well as non-plan, are audited by the Government

and the Accountant-General’s office. What was the audit report, how crores of rupees in cash is given to Rojgar Sevaks, are unanswered

questions (in the month of December, 2008 an amount of Rs.19,47,600.00 was given in advance to the petitioner). It’s a kind of “scamâ€,

which has either remained undetected or overlooked.

It needs to be recorded that for recovery of Rs.10, 74,200/- till date no notice has been issued to the petitioner, obviously no proceeding for recovery

of the aforesaid amount has been initiated by the respondents. The respondents have also failed to give any plausible explanation why the

proceeding which was initiated against the petitioner for recovery of Rs.3,62,200/- did not include the amount of Rs.10,74,200/-, or a separate

departmental proceeding was not initiated against the petitioner on the ground of unauthorized retention of the aforesaid amount.

Mr. Shadab bin haque, the learned State counsel submits that Rs.3,62,200/- and Rs.10,74,200/- are the admitted amounts which have to be

recovered from the petitioner and, therefore, the State has powers to recover these amounts from the pension and other post-retiral benefits, which

are in the nature of property to the petitioner.Â

No doubt, admission is the best piece of evidence, but then in law admission has to be proved. Merely on the basis of the letter and affidavit

allegedly submitted by the petitioner, the respondents cannot be permitted to withhold pension and other post-retiral benefits payable to the

petitioner.Â

Pension to an employee is a right earned by the employee for his meritorious service under the employer. It is a right akin to right to property

under Article 300-A of the Constitution of India.                          Â

In “Deokinandan Prasad Vs. The State of Bihar & Ors.†(1971) 2 SCC 330, Constitution Bench of Supreme Court has declared that pension

cannot be denied to an employee without following the procedure in law. It cannot even be withheld on the ground of pendency of a departmental

enquiry or a criminal trial, has been held by the Supreme Court in “State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr.†(2013) 12

SCC 210. Even in a departmental proceeding only when a finding is recorded that the employee is guilty of gross misconduct during his service

under the employer or he has been found guilty in a criminal trial, pension, and gratuity which forms part of the pension, can be withheld or

forfeited. Â

A copy of the enquiry report has been brought on record and it has been pleaded by the respondents that the enquiry was conducted observing the

rules of natural justice. The grounds raised by the petitioner challenging the penalty order dated 05.02.2016 are found not sustainable and

accordingly, challenge to the penalty order dated 05.02.2016 fails.

Considering the law on the subject and the facts disclosed in the present proceeding, while retaining Rs.3,62,200/- from the post-retiral benefits

payable to the petitioner, the respondent-Deputy Commissioner, Chatra shall ensure payment of pension and other post-retiral benefits to the petitioner,

within two months. If any document is required to be submitted by the petitioner, the respondent no.2 shall intimate the petitioner forthwith.Â

The writ petition stands allowed, in the above terms.

Let a copy of the order be transmitted to the Chief Secretary, Government of Jharkhand.

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