Ram Bishun Singh vs State Of Jharkhand
2021 Latest Caselaw 735 Jhar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           W.P.(S) No.1439 of 2015
Ram Bishun Singh                                     .....   Petitioner
                                 Versus
1. State of Jharkhand
2. Principal Secretary, Department of Forest and
   Environment, Government of Jharkhand,
   having its office at Nepal House, P.O & P.S.
   Doranda, District- Ranchi
3. Secretary, Department of Forest and Environment,
   Government of Jharkhand, having its office at Nepal
   House, P.O. & P.S. Doranda, District- Ranchi
4. Principal Chief Conservator of Forest, Government of
  Jharkhand, having its office at Van Bhawan,
  P.O. & P.S. Doranda, District- Ranchi
5. Chief Conservator of Forest, having its office at
   Van Bhawan, P.O. & P.S. Doranda, District- Ranchi
6. Regional Conservator of Forest, Hazaribagh,
   having its office at Hazaribagh, P.O. & P.S. Hazaribagh,
   District- Hazaribagh
7. Conservator of Forest, Hazaribagh, having its office at
   Hazaribagh, P.O. & P.S. Hazaribagh, District- Hazaribagh
8. Divisional Forest Officer, Koderma Forest Division,
   having its office at Koderma, P.O. & P.S. Koderma,
   District- Koderma                                     ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Rajendra Krishna, Advocate For the Respondents : Mr. Ashok Kr. Yadav, Advocate : Ms. Priyanka Bobby, Advocate

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11/ 17/02/2021 Heard Mr. Rajendra Krishna, learned counsel for the

petitioner and Mr. Ashok Kumar Yadav & Ms. Priyanka Bobby, learned

counsels for the Respondents State through V.C.

2. The instant writ application was initially preferred by the

petitioner for a direction upon the concerned respondents to give monetary

benefits to the petitioner on account of up-gradation of his pay scale upon

giving second time bound promotion w.e.f. from 1st of August 2008 and 3rd

MACP w.e.f. 1st of August, 2010 and also for re-fixation of salary in

appropriate grade pay w.e.f. 1.1.2006 and also to increase the grade pay

further w.e.f. 03.04.2010 when the petitioner was given the up-gradation of

pay pursuant to the 3rd MACP.

Petitioner has further prayed for a direction upon the respondent

authorities to release pension, gratuity, leave encashment, earned leave as well

as arrears of salary.

3. During pendency of this writ application, a supplementary

counter affidavit dated 16.03.2018 has been filed wherein it has been stated

that the petitioner has been granted full GPF, GIS, leave encashment and all

other benefits save and except the amount of gratuity. A letter under Memo

No.1064 dated 13.03.2018 has been annexed with the said supplementary

counter affidavit wherein at serial No.7 it has been directed that 5 lakh rupees

should be adjusted from the retiral benefits of this petitioner.

The said letter dated 13.03.2018 was challenged by this

petitioner by way of filing an amendment application being I.A. No.6201 of

2020 which was allowed by this Court vide order dated 19.01.2021.

4. Mr. Rajendra Krishna, learned counsel for the petitioner submits

that Government money amounting to Rs.5 lakh in cash was looted on

05.03.2011 at Koderma by some unidentified person. In the police

investigation, the incidence of looted amount of Rs.5 lakh was found to be

true having no evidence of involvement of this petitioner; however, the looted

amount was never recovered.

Learned counsel further referred to the counter affidavit dated

27.07.2015 wherein at para 10 it was categorically stated that a request for

waiving the outstanding dues in the account of petitioner was made to the

competent authority vide letter No.1313 dated 23.05.2015.

5. Relying upon the aforesaid specific averments made in para 10 of

the counter affidavit he contended that the impugned order dated 13.03.2018

has been issued de hors the settled proposition of law that after retirement of

any employee; any recovery has to be made after due procedure of law. He

further submits that no any proceeding has either been initiated or culminated

under Rule 43 B and/or Rule 139 of Bihar Pension Rules which is the only

law; whereby the Government can deduct or recover the amount from a

retired employee.

6. Mr. Ashok Kumar Yadav, learned counsel for the respondent

submits that the said Government money was looted from the petitioner and

though in the police investigation there was no involvement of the petitioner

found by the police but the fact remains that the amount in question was never

recovered. As such, the unrecovered money amounting to Rs.5,00,000/-

(Rupees five lakh) was running as outstanding balance against the petitioner

in the books of account of the Government. He further submits that though a

recommendation was made by the then Regional Chief Conservator of Forest

but he was not competent to waive the money.

He further relied upon the provision with regard to the

relinquishment of Government money as contained in Rule 62 (ii) of

Jharkhand Finance Rules and contended that accordingly the matter regarding

writing off of Rs. 5 lakh was referred to the Finance Department for seeking

advice and concurrence of the department. However, the Finance Department

refused to do so and finally impugned order was issued in the month of

March, 2018, whereby Rs.5 lakh was directed to be recovered from the

pending retiral benefits.

He further submits that in the said letter, the Finance Department

opined that there was gross negligence of the petitioner as he withdrew large

sum of money in the month of March and without any help of security guard.

7. Relying upon the aforesaid contention he submits that there is no

error in the impugned order and the instant writ application deserves to be

dismissed. In order to buttress his argument, he referred to the judgment

passed by the Hon'ble Apex Court in the case of Secretary, ONGC Ltd. and

Another versus V.U. Warrier reported in (2005) 5 SCC 245 wherein at para

20 and 21 it has been held as under:

"20. It is well settled that gratuity is earned by an employee for long and meritorious service rendered by him. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer (vide Garment Cleaning Works v. Workmen). In Calcutta Insurance Co. Ltd. v. Workmen, after considering earlier decisions, this Court observed that "long and meritorious service" must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid the harmonious employment of labourers or workmen. The Court proceeded to state that the misconduct may be such as to undermine the discipline in the workers -- a case in which it would be extremely difficult to assess the financial loss to the employer.

21. In Jarnail Singh v. Secy., Ministry of Home Affairs this Court had occasion to consider the provisions of the Central Civil Services (Pension) Rules, 1972. The definition of "pension" included gratuity under Rule 3. Rule 9 conferred on the President right to withhold or withdraw pension in certain circumstances. The order was passed against the appellant withholding pension and the entire amount of death-cum-retirement gratuity otherwise admissible to him. The direction was given on serious irregularities found to have been committed by the appellant. The appellant challenged that order unsuccessfully before the Central

Administrative Tribunal. He, therefore, approached this Court. His contention was that an amount of gratuity could not have been withheld. Negativing the contention, the Court held that the power to withhold gratuity was conferred on the President under the relevant rules and hence, such action could not be said to be illegal. According to the Court, there could be adjustment of government dues against the amount of death-cum-retirement gratuity payable to government servant."

8. Replying to the aforesaid contention, Mr. Krishna reiterated his

stand that after getting 'No Objection Certificate' from the department,

petitioner has received the entire amount save and except the amount of Rs.5

lakh which has been recovered from his gratuity amount. He further submits

that after retirement if at all the Government wishes to recover any amount on

account of some loss to the Government, the same can be done only in

accordance with Rule 43 B and /or 139 of Bihar Pension Rule.

He concluded that the Finance Department letter which holds the

petitioner guilty of negligence without holding any enquiry is non-est in the

eye of law. The Finance Department circular clearly stipulates that if any

employee who is held guilty for negligence; and the petitioner has never been

held guilty for his negligence and only for that reason a recommendation was

made for waiver of this amount.

9. Having heard learned counsel for the parties and after going

through the documents annexed and averments made in the respective

affidavits it appears that an amount of Rs.5 lakhs was looted from this

petitioner on 05.03.2011 and in the police report the incidence of loot was

found true having no evidence of involvement of this petitioner and the Court

has accepted the police report. Thereafter, a request for waiving the

outstanding dues was made to the competent authority vide respondent's letter

dated 23.05.2015.

After attaining the age of superannuation on 31.07.2014, when

the petitioner did not received his retiral benefits; he preferred the instant writ

application with several prayers as noted herein above and during pendency

of this writ application, a counter affidavit was filed wherein it has been stated

that the GPF of Rs.9,99,037/- and GIS of Rs.1,37,369/- have been paid to the

petitioner.

11. From the counter affidavit it also transpires that the petitioner

was granted 2nd ACP and 3rd MACP by the Government vide letter dated

27.02.2015. Thereafter, pension of the petitioner was fixed vide letter dated

29.05.2017. It also appears from record that the screening committee has

recommended for correction of the due date of 2nd ACP and 3rd MACP and in

the year 2018, the leave encashment in lieu of unutilized leave of 300 days

has also been sanctioned in favour of the petitioner by letter No.1064 dated

13.03.2018.

12. Thus, now the only dispute remains in the instant writ application

is with respect to non-payment of Rs.5 lakh which has been deducted from

the gratuity amount of this petitioner. In this regard, now the law is no more

res integra that for any deduction or recovery from the retiral benefit of any

employee; the Government will have to resort to the provisions as enshrined

in Bihar Pension Rules wherein Rule 43B and Rule 139 is very clear.

It is not a case of the respondents that negligence and/or culpable

negligence have been proved against this petitioner. The only stand of the

respondents with regard to non-payment of gratuity amount and/or recovery

of Rs.5 lakh which was looted amount is based on the letter of Finance

Department.

At this stage it is pertinent to mention here that Rule-34 of Bihar

Finance Rules deals with "Responsibility for Losses" wherein it is stipulated

that every Government servant will be held personally responsible for any

loss sustained by the Government through fraud or negligence. At the cost of

repetition; no proceeding, whatsoever, was ever initiated even to prove the

negligence of this petitioner at the time of his service though Rs.5 lakhs was

looted from this petitioner on 05.03.2011 and the petitioner retired on

31.07.2014. So in spite of having sufficient time with the Respondents to

initiate any proceeding to prove negligence and/or culpable negligence; they

failed to do so, instead recommended for writing off the aforesaid amount.

Even after retirement of this petitioner; no proceeding either

under Rule-43B and /or Rule-139 of Bihar Pension Rules has either been

initiated or completed as against this petitioner. The law has been laid down

in catena of judgments that without any recourse of law; not even a single

penny can be recovered and in the instant case; admittedly, no proceeding has

been initiated, as such, the respondents cannot recover the amount of Rs. 5

Lakh from gratuity and the impugned action is totally illegal and does not

have any legs to stand.

13. The judgment cited by learned counsel for the respondents does

not apply in the instant case, inasmuch as; the facts of the cited case is

entirely on different set of facts and further there is specific provisions under

the Bihar Pension Rules to recover any amount after retirement. As such, I am

not in agreement with the contention of learned counsel for the respondents.

14. In view of the aforesaid discussions, the instant writ application

is allowed and the impugned letter as contained in Memo No.1064 dated

13.03.2018 is quashed and set aside.

15. The respondents are directed to release the seized amount of Rs.5

lakh within a period of 3 months from the date of receipt/production of copy

of this order; failing which, the petitioner shall be entitled for simple interest

@ 6% per annum from the date of entitlement till the date of actual payment.

It goes without saying that any legitimate dues, which though

sanctioned but not paid, shall be paid during the aforesaid stipulated period.

16. With the aforesaid observation and direction, the instant writ

application stands allowed and disposed of.

(Deepak Roshan, J.)

Pramanik/

AFR