- (1.) Heard learned counsel for the petitioner and the State. The petitioner has been imposed with a punishment of withholding of the entire amount of pension and gratuity by the impugned order as contained in Annexure-3 bearing No. 166/2010, Memo No. 957 dated 15.7.2010 issued by the Deputy Commissioner, Dumka. The said order has been passed on the basis of findings of a departmental inquiry initiated against the petitioner on 28.7.1998 and after issuance of second show cause notice upon him. As per the impugned order, the petitioner was Incharge of the Cash and Accounts Section of the District Welfare Office, Dumka during the period of strike by the non-gazetted employees between 24.2.1997 to 25.5.1997. During the course of audit for the said period, irregularities in the maintenance of the accounts were detected and the Deputy Commissioner, Dumka enquired the matter through the Project Officer, Range Dumka and the District Accounts Officer by letter dated 23.7.1997 which reveals embezzlement of a sum of Rs. 3,97,956.77 by the petitioner. The petitioner was served with a show cause notice on 28.8.1997, reply of which was not found to be satisfactory. Thereafter, an FIR was registered on 29.9.1997 against him in Dumka P.S. for the alleged offence. He was placed under suspension through order dated 2.10.1997. The petitioner was in the meantime convicted by the Judicial Magistrate, 1st Class on 15.9.2006 in T.R. Case No. 94/2006 and sentenced to undergo R1 for 2 years with a fine of Rs. 10,000/- and in default, for a simple imprisonment of 6 months. In the appeal preferred by the petitioner before the Learned Sessions Judge, Dumka, he has been acquitted by the judgment dated 8.8.2008 passed in Criminal Appeal No. 96/2006. Upon obtaining the opinion of the Government Pleader, the Deputy Commissioner issued second show cause notice upon him through memo dated 13th May, 2010 and 23rd June, 2010 which he replied on 25.6.2010. Having found the reply of the petitioner unsatisfactory, he has been imposed punishment of withholding of the entire amount of pension and gratuity. The petitioner incidentally had retired on 31.1.2008 before issuance of the impugned order.
(2.) Learned counsel for the petitioner has assailed the impugned order, inter alia, on the following grounds:-- "(i) That after his retirement no specific order for continuance or initiation of a departmental proceeding was initiated in terms of Jharkhand Pension Rules for withholding of his pensionary benefits. (ii) That he has been acquitted by the learned Appellate Court in criminal case which was prosecuted on the identical charge, for which he has proceeded departmentally. Therefore, such a punishment in the departmental proceeding was not warranted when the learned Sessions Judge had categorically observed that there was no iota of the documentary evidence to fix criminal liability under Section 409 IPC upon the appellant. (iii) The impugned order passed by the Deputy Commissioner, Dumka is without jurisdiction as under Rule 43(b) of the Jharkhand Pension Rules, it is only the State Government which can withhold the pension or any part of it upon finding of guilt arrived at in a departmental proceeding initiated against a retired employee subject to the conditions laid down under the proviso to the said rules. It is submitted that, therefore, the impugned order deserves to be set aside."
(3.) The respondents have also withheld the benefits of 5th Pay Revision and 6th Pay Revision with effect from 1.1.1996 and 1.1.2006 and also the increments due upon them without any show cause or notice to the petitioner. Such withholding of the benefits of Pay Revision is wholly unwarranted in law neither covered by the impugned punishment also. The petitioner has also claimed for certain unpaid salary for the period of his suspension till his retirement. Counsel for the petitioner has relied upon judgment rendered by the Full Bench of this Court in the case of Dr. Dudh Nath Pandey v. State of Jharkhand, 2007 4 JCR 1, which has been also affirmed by the Apex Court in the case of State of Jharkhand v. Jitendra Kumar Srivastava, 2013 3 JLJR 537.;