IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.3503 of 2010 ------- Suresh Sharma son of Late Nathuni Sharma resident of village: Bhimalpur P.O. & P.S. Ghosi, Distt: Jahanabad (Bihar) retired from the post of Forestor, Chatra Sub Division, Chatra. … Petitioner Versus 1. The State of Jharkhand 2. The Principal Chief Conservator of Forest, Nepal House, P.O. Doranda, P.S. Doranda, District Ranchi 3. The Regional Chief Conservator of Forest, Nepal House, P.O. Doranda, P.S. Doranda, District Ranchi 4. The Divisional Forest Officer, Forest Sub Division, Chatra, Forest Office Chatra, P.O., P.S. & District Chatra 5. The Range Officer, Bokaro, Forest Office, Bokaro P.O, P.S. & District Bokaro 6. The Divisional Forest Officer, Bokaro, Forest Office, Bokaro P.O., P.S. & District Bokaro 7. The Accountant General, Doranda, P.O. & P.S. Doranda, District Ranchi, Jharkhand ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. Binod Kumar Dubey, Advocate For the Respondents : Mr. Yogendra Prasad, J.C. to S.C-1 For the Respondent No.7: Mr. Sudharshan Srivastav, Adv. ------ CAV ON1704.2015 Pronounced On 08/05/2015 Per Pramath Patnaik, J.
1. In the accompanied writ application, the petitioner has interalia prayed for direction to respondents to pay the entire retirement dues and prayed for quashing of the order dated 8.2.2010 by the letter of Divisional Forest Officer, Bokaro (Respondent No.6) relating to deduction a sum of Rs.86,613.88/- from the payable amount of the petitioner.
2. The facts in a nutshell is that initially the petitioner was appointed on 28.4.1967 on the post of Forestor after rendering 38 years of service, he retired on 31.12.2007 on -2- attaining the age of superannuation vide Annexure-1 to the writ application.
3. The petitioner has discharged duties to the satisfaction of his superior authorities having unblemished service career. After retirement of the petitioner, the petitioner has submitted his pension papers for fixation of his pension as well as payment of entire retirement dues in the shape of gratuity, unused leave, insurance amount and other consequential benefits. In spite of the retirement of the petitioner except provisional pension, no retirement benefit has been given but all of a sudden, the letter was issued from the office of the Divisional Forest Officer, Bokaro vide order dated 8.2.2010. Wherein total recovery of Rs.3,00,741.84/- has been ordered to be recovered from employees including the petitioner and against the name of petitioner Rs.86,613.88/- has been shown recoverable as mentioned vide Annexure-2 to the writ application. Being aggrieved by the impugned order dated 8.2.2010 vide Annexure-2 relating to the recovery of Rs.86,613.88/- and in-action on part of respondent for non-disbursement of retiral dues, the petitioner has approached this Court invoking extra ordinary writ jurisdiction of this Court for redressal of his grievances.
4. Counter affidavit has been filed on behalf of the respondents controverting averments made in the writ application. In the counter affidavit, it has been stated -3- that the provisional pension has been given to the petitioner on 11.02.2008 vide Office Order No.14 Annexure- A to the counter-affidavit. 90% provisional gratuity has been given to the petitioner vide Office Order No.15 dated 11.02.2008 of the office of DFO, Chatra South Forest Division as per Annexure- B & C to the counter affidavit. Group life insurance amount has finally been paid to the petitioner vide Office Order No.10 dated 16.01.2008 of the office of DFO, Chatra South Forest Division as Annexure- D & E. The total amount of GPF has been paid to the petitioner on the basis of the authority letter of District GPF Officer, Chatra vide no.11 dated 19.05.2008 as evident from Annexure-F & G respectively to the counter-affidavit and total amount of encashment of unutilized leave has been paid to the petitioner by the Conservator of Forest, Hazaribagh Circle, Hazaribagh vide Office Order No.21 dated 20.02.2008 as per Anneuxre-H & I to the counter- affidavit.
5. In the supplementary counter-affidavit filed on behalf of respondent no.6 in paragraph-4 thereof it has been mentioned that the petitioner was forester, along with Range Officer of Forest and Forest guard had been allotted the work for plantation under the scheme for which separate fund had been given and since the work of plantation and other work under scheme had not been done, the amount which has been given, has been directed -4- to be recovered as it was under the scheme and not related to service, therefore, no departmental proceeding is required as it relates to work under the scheme for plantation as evident from the Office Order No.55 dated 30.07.2010 Annexure-Q to the supplementary counter- affidavit. In paragraph 5 of the said supplementary counter- affidavit, it has been mentioned that after due enquiry, the order passed earlier vide order of 08.02.2010 (Annexure-2) which has again been revised and only Rs. 34,076.00/- has been directed to be recovered and not Rs.86,613.88 which is proportionate from all the employee who had been given the amount under the scheme which is not malafide rather it is an amount which has been taken by petitioner for plantation work which is not related with service hence the order is justified.
6. Heard Mr. B.K. Dubey, learned counsel for the petitioner, Mr. Yogendra Prasad, J.C. to S.C.I and Mr. Sudharshan Srivastav, learned counsel for the respondent no.7 (Accountant General,Ranchi).
7. Learned counsel for the petitioner has strenuously urged before this Court that the impugned order Annexure- 2 which has been subsequently revised vide Annexure-Q to the supplementary counter-affidavit filed by respondent no.6 is not legally sustainable in the teeth of Rule 43-B of Pension Rules. Admittedly, the petitioner retired on 31.12.2007 and the respondents have directed for the -5- recovery of the aforesaid amount without resorting to Rule 43-B of Pension Rules. Rule 43-B which envisages:- Rule 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 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.
8. The proviso to Rule 43(b) reads as under:- Provided that- a. Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment.
1. 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. 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 re-employment shall have been instituted in accordance with sub clause (ii) of clause (a) and c. The Bihar Public Service Commission, shall be consulted before final orders are passed.
9. On perusal of the aforesaid provisions and procedures under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold Gratuity and -6- Pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold Leave Encashment, at any stage, either prior to the proceeding or after conclusion of the proceeding. The said provision has been exhaustively and illuminatively dealt by this Court in Full Bench judgment rendered in the case of Dr. Dudh Nath Pandey Vrs. State of Jharkhand & Ors. reported in 2007 (4) JCR1 In the instant case, admittedly no proceeding has been initiated prior to impugned order for recovery of the allotted amount.
10. Learned counsel for the petitioner has argued that as it is evident from impugned order, Annexure-2 to the writ petition that the alleged short-fall relates to year 2003-04 and even alleged amount could not been recovered under proviso to Rule-43(B) as it was 4 years prior to impugned order dated 08.02.2010. In any view of the matter, the impugned order, Annexure-2 is not legally sustainable hence liable to be interfered with.
11. Learned counsel for the respondents has tried his level best to defend the action of the respondents by canvassing his argument that the impugned order Annexure-2 does not relate to retiral dues but relates to fund allotted for the plantation under scheme and, therefore, there is no need to resort to rule 43(b) of the Bihar Pension Rule. -7- 12. After perusal of the entire documents of records and hearing the respective counsels at length, it appears that the impugned order dated 08.02.2010 Annexure-2 is not legally sustainable. Accordingly, order dated 08.02.2010 vide Annexure-2 and the order dated 30.07.2010 vide Annexure-Q to the supplementary counter-affidavit of respondent no.6, are hereby quashed.
13. The respondents are directed to disburse the balance retiral amount as due and admissible to the petitioner within a period of two months from the date of receipt/production of a copy of this order.
14. With the aforesaid observations and directions, the writ petition is allowed. (Pramath Patnaik, J.) RKM/- N.A.F.R