Jharkhand High Court
Krishna Deo Prasad vs The State Of Jharkhand And Ors on 5 February, 2015
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.5095 of 2014
Krishna Deo Prasad, Son of Late Anant Lal Sah, resident of Anandmayee Nagar,
Ratu, Kathitar, P.O. Ratuchatti, P.S. Ratu, Dist. Ranchi, Jharkhand
......Petitioner
Versus
1. The State of Jharkhand.
2. Deputy Commissioner, Ranchi, PO Kutchery, PS Kotwali, Dist. Ranchi
3. District Treasury Officer, Ranchi , PO Kutchery, PS Kotwali, Dist. Ranchi
4. District Welfare Officer, Ranchi having his office at Collectorate
Building, PO Kutchery, PS Kotwali, Dist. Ranchi
5. Block Development Officer, Burmu, Ranchi at and P.O. Burmu, P.S.
Burmu, Dist. Ranchi
6. Deputy Director (Welfare), Governemnt of Jharkhand, Ranchi, South
Chhotanagpur Divison, , PO Kutchery, PS Kotwali, Dist. Ranchi
7. Principal Accountant General (A & E), Jharkhand, P.O and P.S. Doranda,
Dist. Ranchi ......Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : M/s Atanu Banerjee &
N.P. Thakur, Advocates
For the State : Mrs. Neelam Tiwary, Advocate
For the Respondents : M/s S.K. Verma & S. Shrivastava
th
03/Dated: 5 February, 2015
This writ petitioner has been filed by the petitioner for release of
amount of pension, gratuity, and leave encashment.
2. It has been submitted on behalf of the petitioner that the petitioner
after rendering 42 years of regular and continues service had retired on
31.12.2012from the post of Block Welfare Officer, Ranchi.
3. The grievance of the petitioner is that the petitioner has not been paid the amount of pension, gratuity and leave encashment.
4. Counter affidavit has been filed by the respondents, wherein it is submitted that the pension and gratuity although has been finalized but sanction to monetary benefit has yet not been paid released due to want of "no due certificate". It has been submitted by the respondent-State that the monetary benefit after his retirement has not been released as there is some outstanding temporary advance lying in the name of petitioner to the tune of Rs. 3,42,680/-. It has been further submitted that the moment "no due certificate" will be issued in favour of the petitioner it will be forwarded to the District Treasury Officer, Ranchi for release of amount as has been prayed.
5. It is admitted position that the petitioner was retired w.e.f. 31.12.2012. In course of service, no departmental proceeding was ever initiated against him. The authority slip for the purpose of pension and gratuity has also been issued but no monetary benefit has been given due to want of "no due certificate". Leave salary has also been not paid to the petitioner.
-2-6. Counsel for the State has stated that since certain amounts is lying in the name of the petitioner by way of outstanding temporary advance while he was posted at Burmu Block "no due certificate" has not been issued.
7. This stand of the respondent-State is absolutely contrary to settled legal proposition because the respondent cannot withhold any amount of pension or gratuity without any statutory provisions of Civil Services (Classification, Control and Appeal) Rules, 1930 or the Pension Rules.
8. So far as the pensionary benefit of the petitioner is concerned, admittedly no disciplinary proceeding was initiated either in course of service of the petitioner or even after his retirement under the provision of Pension Rules because no averment has been made by the respondent-State in the counter affidavit.
9. Here it is pertinent to discuss the decision of Hon'ble Apex court rendered in case of State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, In this case Hon'ble Apex Court held that a person cannot be deprived of his pension without any authority of law, which is constitutional mandate enshrined in Article 300-A of the constitution of India. The Hon'ble Apex Court further held that the attempt of the appellant to take away a part of pension gratuity or even leave encasement without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
The Hob'ble Apex Court at para 16 & 17 held as follows-
"16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property." Article 300-A of the Constitution of India reads as under:
"300-A. Persons not to be deprived of property save by authority of law- No person shall be deprived of his property save by authority of law."
Once we proceed on that on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encasement without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as " law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."
10. In that view of the matter, and the judgment rendered in the Hon'ble Court in the case of Jitendra Kumar Srivastava (Supra) the -3- petitioner is entitled to get the pension and gratuity in absence of any finding under rule 43(b) of the Bihar Pension Rules. Since no proceeding has been initiated against him, the petitioner is entitled for getting the same.
11. Thus, since the ratio laid down by the Supreme Court in the case of Jitendra Kumar Srivastava (Supra) if it be compared with the case of petitioner, it is apparent that the petitioner since discharged duty for period of 42 years and was retired from service on 31.12.2012 as Block Welfare Officer and has given specific statement in the writ petition that no departmental enquiry has been initiated against him on the date of his retirement, hence the facts of this case is also more-or-less same with the facts of the case of Jitendra Kumar Srivastava (Supra).
12. The respondents in the counter affidavit have not controverted the statement made by the petitioner at para-9 which is para-wise reply given by the respondent authorities.
13. Thus, no departmental proceeding was pending on the date of retirement of petitioner. Further it has been stated that no department proceeding has been initiated against the petitioner under Rule 43(b) of the Pension Rules even after his superannuation.
14. Applying the ration laid down in the case of Jitendra Kumar Srivastava (Supra) in this case, I find similarity in the facts of the instant case.
15. Thus, the petitioner is entitled to get all monetary benefit against pension, gratuity and leave encashment.
16. Accordingly, the respondent is directed to take necessary steps in this regard so that all monetary benefit against pension, gratuity and leave encashment shall be released within a period preferably within 8 weeks from the date of receipt of copy of this order.
17. So far the contention of the respondent that certain amount which is lying in the name of the outstanding temporary advance, the respondents is at liberty to conduct enquiry in this regard.
18. Writ petition stands disposed of with the directions and observations made hereinabove.
(Sujit Narayan Prasad, J.) Tarun