- (1.) THE present writ petition has been preferred for getting retirement benefits like gratuity, leave encashment, arrears of pay, 25% of the pension, which has been withheld by the order at Annexure1 and such other dues, which the petitioner is entitled because the petitioner retired on 30th September, 2009.
(2.) LEARNED counsel for the petitioner submitted that the petitioner retired as a Deputy Commissioner (Commercial Taxes). After retirement, several retirement dues have been withheld. It is further submitted by learned counsel for the petitioner that vide order at Annexure1 dated 11th June, 2010, 25% of the pension has been ordered to be withheld, whereas, by the same order, amount of full gratuity and leave encashment has been ordered to be paid. Despite this order, neither amount of gratuity nor any amount of leave encashment has been paid. It is further submitted by learned counsel for the petitioner that chargesheet was issued to the petitioner on 22nd June, 2010. Inquiry Officer has given his report on 4th February, 2012, which is at Annexure7 to the supplementary affidavit filed by the petitioner. Looking to this Inquiry Report, it appears that the petitioner has been exonerated from the charges levelled against him and, therefore, let an appropriate writ be issued upon the respondents to make the payment of gratuity, leave encashment, pension and such other amount, for which, the petitioner is legally entitled, within stipulated time. Learned counsel for the respondents submitted that it is true that the petitioner has been exonerated from the charges levelled against him in the chargesheet. Inquiry Officer has given report on 4th February, 2012, but, the respondents have not taken any final decision for imposing any punishment and, therefore, some time may kindly be granted. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order dated 11 th June, 2010, which is at Annexure1 to the memo of the petition to the extent to which 25% of pension of the petitioner has been ordered to be withheld, mainly for the following facts and reasons: (i) The petitioner retired on 30th September, 2009 as a Deputy Commissioner (Commercial Taxes). (ii) It appears from the facts of the case that the order at Annexure1 has been passed on 11th June, 2010 withholding 25% of the pension and the amount of gratuity and leave encashment has been ordered to be paid. Neither the amount of gratuity nor the amount of leave encashment has been paid to the petitioner, even as on today. (iii) It further appears from the facts of the case that as on date on which the Annexure1 order was passed i.e. on 11 th June, 2010, no chargesheet was issued. In fact, chargesheet, upon the petitioner, was issued on 22nd June, 2010 and, therefore also, the order at Annexure1 deserves to be quashed and set aside, especially looking to the provision of Rule 43 of the Jharkhand Pension Rules, 2000. As per aforesaid Rule, only upon conclusion of the inquiry, an order can be passed for withholding or deduction of the amount. Thus, the order at Annexure1 for withholding 25% of the pension is in violation of Rule 43 of the Jharkhand Pension Rules, 2000. (iv) Rule 43 of the Jharkhand Pension Rules, 2000 reads as under: "43. (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (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 a 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 reemployment after retirement: Provided that (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment; (i) 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; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct 3 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 reemployment, shall have been instituted in accordance with subclause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed." (Emphasis supplied) In view of the aforesaid provision, the Government can withheld the pension, if the employee is found in the departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or by his negligence. As stated hereinabove, in the facts of the present case, even chargesheet was issued after passing of the order at Annexure1, and, hence, the said order is in violation of Rule 43 of the Jharkhand Pension Rules, 2000. (v) It further appears from the facts of the case that departmental inquiry is already over. Inquiry Officer's report is dated 4th February, 2012, which is at Annexure7 to the supplementary affidavit filed by the petitioner. Looking to this Inquiry Report, it appears that the petitioner has been exonerated from the charges levelled against him. In view of these facts, the petitioner is entitled to 25% of the pension amount, which has been withheld by the order at Annexure1 to the memo of the petition. The State is unable to point out to this Court that they have taken any decision upon the Inquiry Officer's report, wherein, the petitioner has been exonerated from the charges.
(3.) IN view of the aforesaid facts and reasons, I hereby quash and set aside the order dated 11th June, 2010, which is at Annexure1 to the memo of the petition to the extent to which 25% of pension of the petitioner has been ordered to be withheld. I hereby direct the respondentState to make the payment of amount of gratuity, leave encashment and to sanction full pension of the petitioner within a period of eight weeks from the date of receipt of a copy of the order of this Court. If the amount is not paid within aforesaid period of eight weeks, the same shall be paid with Simple Interest at the rate of 5% per annum from the date on which the aforesaid amounts were due, till the actual amount is paid. Accordingly, this writ petition stands disposed of, in view of the aforesaid directions.;