Gopal Prasad Singh …. … v. The State of Jharkhand through its Secretary, Higher, Technical Education & Skill Development Department
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2623 of 2022 Gopal Prasad Singh …. …. Petitioner 1. 2. 3. Versus The State of Jharkhand through its Secretary, Higher, Technical Education & Skill Development Department, Ranchi. The Director, Higher, Technical Education & Skill Development Department, Ranchi. The Registrar, Sido Kanhu Murmu University, Dumka. …. …. Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ For the Petitioner For the Resp-State For the Resp. No. 3
Legal Reasoning
The issue fell for consideration before this Court in the case of Dr. Dudh Nath Pandey versus State of Jharkhand and Others reported in 2007 (4) JCR 1. In the said case, the Hon’ble Full Bench, vide judgment 28.08.2007, decided the two issues which fell for consideration, which can be summed up as follows:- “(i) Under Rule 43(a) and 43(b) of the Bihar Pension Rules, there is no power for the Government to withhold gratuity and 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 the prior the proceeding or after conclusion of to 3 proceeding. (ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law.” 9. Further, it is an accepted position that gratuity and pension are not the bounties, since an employee earns these benefits by dint of his long, continuous, faithfully and unblemished service. 10. The Hon’ble Apex Court in the case of D.S. Nakara and Others versus Union of India reported in (1983) 1 SCC 305 has lucidly described as under:- “The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for erstwhile employee even after the contract of his employment has come to an end and the employee has ceased to rendered service? What is pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.” 11. The Hon’ble Apex Court in the case of Deokinandan Prasad versus State of Bihar reported in (1971) 2 SCC 330 has held as under:- “31. ……. pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.” 12. In the case of Poonamal versus Union of India reported in (1985) 3 SCC 345 the Hon’ble Supreme Court has held as under:- “7. …….. pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right.” 13. In the case of U.P. Raghavendra Acharya versus State of Karnataka reported in (2006) 9 SCC 630 the Hon’ble Apex Court has held as under:- “25. Pension, as is well known, is not a bounty. It is treated to be a 4 deferred salary. It is akin to right of property. It is correlated and has a nexus with the salary payable to the employees as on the date of retirement.” 14. The same view was reiterated in case of Jitendra Kumar Srivastava (supra) wherein the Hon’ble Apex Court has held that in absence of any specific rules, pension being a constitutional “Right of Property”, cannot be withheld and the same is impermissible. It was observed that a person cannot be deprived of pension without the authority of law, which is a constitutional mandate enshrined in Article 300A of the Constitution of India. It follows that attempts of the State 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. 15. As a sequitur to the aforesaid rules, guidelines and judicial pronouncement, this Court takes no other view as what has been taken by the Hon'ble Apex Court in the aforesaid judgments and ratio laid down resultantly therein. Hence, the order contained in memo no. SKMU/R- G/256/ 19 dated 09.05.2019 (Annexure-2), is hereby quashed and set aside. The respondents are directed to make payment of the full and final pension including 25% of pension withheld since the date of superannuation dated 31.01.2017, and further to release the entire other post retiral dues including final Gratuity , Insurance amount, Leave Encashment, Medical leave and further to fix and pay in full the final current pension in the 7th Revised UGC Pay along with entire arrears accrued as on date; and any other benefits to which the petitioner is entitled under law, within a period of 12 weeks from the date of receipt/production of a copy this order. 16. With the aforesaid directions and observations, this writ petition stands allowed. R.Kr. (Dr. S. N. Pathak, J.) 5
Arguments
------ : Mr. Prem Pujari Roy, Advocate : Mr. Arun Kumar Dubey, AC to GP-II : ----- Dr. Ashok Kumar Singh, Advocate 15/ 19.06.2024 Heard the parties. 2. The petitioner has approached this Court with the prayer for quashing of the order contained in memo no. SKMU/R-G/256/ 19 dated 09.05.2019 (Annexure- 2), whereby 25% of pension and other post retiral benefits have been withheld, for indefinite period, on account of pendency of a criminal case. Further, prayer has been made to direct the respondents to pay entire arrears accrued on account of withholding 25% of pension, and to make payment of the entire arrears of post retiral benefits by computing the same in the 7th Revised UGC Pay Scale including (i) Gratuity (ii.) Insurance amount, (iii) Leave encashment, (iv) Medical leave amount and (v) Fixation of full and final pension in the 7th Revised UGC Pay Scale etc., along with interest @ 18% per annum from the date it became due till the date of its realization. 3. The brief facts of the case are that the petitioner was appointed on 01.07.1979 on the post of Lecturer in Jamtara College, Jamtara. The petitioner was thereafter promoted to the post of Reader on 1.7.1989 and while working as Associate Professor, he superannuated on 31.01.2017. In course of his employment, he was appointed as Member of Jharkhand Public Service Commission from 3.8.2003 to 3.8.2009. While he was posted at Jharkhand Public Service Commissioner, a vigilance case for certain irregularities for committing various examinations has been 1 lodged, for which the petitioner was put under suspension in September, 2011 and he retired from service during suspension period itself. When the pensionery benefits have not been extended to the petitioner, he filed W.P.(S) No. 4194 of 2018 for payment of his entire post retiral benefits. After hearing the parties, this Court vide order dated 24.01.2019 has been pleased to dispose of the writ petition with a direction upon the respondents to consider the claim of the petitioner and to calculate and quantify the amount of post retiral benefits under different heads and after quantifying the same, the necessary order for payment of admitted dues towards post retiral benefits be passed and admitted dues should be disbursed to the petitioner immediately. However, after lapse of a considerable period, the respondent no. 3 has passed the order observing therein that the amount of 75% of monthly pension along with arrears of pension, PF along with interest shall be paid, whereas the gratuity will be kept pending till outcome of cases filed by the CBI. It is further case of the petitioner that despite these observations passed by respondent no. 3, no payment towards post retiral benefits have been extended to the petitioner and hence, this writ petition. 4. Mr. Prem Pujari Roy, learned counsel appearing for the petitioner, vociferously argues that merely pendency of the criminal cases cannot be a ground for withholding the pensionary benefits including gratuity, leave encashment and group insurance of the petitioner. Further, it has been argued that never any departmental proceeding was initiated against the petitioner and he was made to retire in the year 2017. In the criminal cases, the petitioner has never been convicted and merely on the ground of pendency of the vigilance cases, the pensionary benefits of the petitioner cannot be withheld. Placing heavy reliance on the celebrated judgment of Hon'ble Apex Court in the case of State of Jharkhand and Others versus Jitendra Kumar Srivastava and Another reported in (2013) 12 SCC 210, it has been argued that pendency of the criminal cases cannot be a ground for withholding the pension, gratuity, leave encashment and group insurance of the employee. 5. On the other hand, learned counsel representing the respondent-Ranchi University, opposing the contentions of learned counsel 2 for the petitioner emphatically argues that the petitioner is not entitled for other benefits as several criminal cases are pending against him. However, learned counsel appearing for the respondent-University submits that a meeting was held with respect to payment of retial dues of the petitioner on 22.07.2023, wherein decision was taken to withhold 25% of the pension. It has also been decided that no gratuity shall be paid till outcome of criminal cases. 6. Learned counsel for the respondent-State submits that the State releases the amount as and when recommendation/requisition is received from the University for making payment after fixation of pay. 7. Heard the parties at length and perused the documents brought on record and specific averments made in the writ application as well as the counter-affidavits. It is an admitted fact that petitioner served the University as a lecturer and thereafter was posted as a Member of the Jharkhand Public Service Commission. Subsequently, criminal cases were lodged against the petitioner by the Vigilance Department, in which in some of the cases he has been acquitted and the other criminal cases are still pending, but the petitioner has never been convicted. After being released from the Commission, the petitioner was put under suspension and the same also stood revoked. Never any departmental proceeding was initiated against the petitioner. The legal issue to be decided in the instant writ petition is whether pendency of the criminal case can be a bar for non- payment of retiral benefits, including gratuity, pension, group insurance and leave encashment. 8.