Jharkhand High Court

Mahendra Narayan Singh vs The State Of Jharkhand on 18 February, 2021

                                                 -1-                   W.P. (S) No. 1673 of 2019


                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 W.P. (S) No. 1673 of 2019
                   Mahendra Narayan Singh, aged about 60 years, son of Late Sri Bhikan
                   Singh, resident of Hazaribag, P.O., P.S. & District- Hazaribag
                   (Jharkhand)                                      ... Petitioner

                                            -Versus-

             1.  The State of Jharkhand
             2.  The Principal Secretary, Water Resources Department, Government of
                 Jharkhand, Project Bhawan, P.O. Dhurwa, P.S. Jagarnathpur, District-
                 Ranchi
             3. Chief Engineer, Waterways Circle, Water Resources Department,
                 Government of Jharkhand, Hazaribag, P.O., P.S. & District- Hazaribag
             4. Superintending Engineer, Waterways Circle, Water Resources
                 Department, Government of Jharkhand, Hazaribag, P.O., P.S. &
                 District- Hazaribag
             5. Superintending Engineer, Minor Irrigation Division, Hazaribag, P.O.,
                 P.S. & District- Hazaribag
             6. State of Bihar through its Principal Secretary, Minor Water Resources
                 Department, Government of Bihar, Irrigation Building, Old Secretariat,
                 P.O. & P.S. Sachiwalaya, District- Patna
             7. Chief Engineer, Minor Water Resources Department, Government of
                 Bihar, Irrigation Building, Old Secretariat, P.O. & P.S. Sachiwalaya,
                 District- Patna
             8. Executive Engineer, Minor Irrigation Division, Arrah, P.O., P.S. &
                 District- Arrah
             9. Executive Engineer, National Rural Employment Programme, Bhojpur,
                 Arrah, P.O., P.S. & District- Arrah
             10. Executive Engineer, Local Area Engineering Organization, Works
                 Division-I, Arrah, Bhojpur, P.O., P.S. & District- Arrah
                                                                          ... Respondents
                                             -----

             CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                             -----

             For   the Petitioner            :   Mrs. Swati Shalini, Advocate
             For   the State of Jharkhand    :   Mr. Rishu Ranjan, A.C. to S.C.-III
             For   the State of Bihar        :   Mr. Diwakar Upadhyay, Advocate
             For   Respondent No.10          :   Mr. Ashish Kumar Thakur, Advocate
                                             -----

10/18.02.2021. Heard Mrs. Swati Shalini, learned counsel for the petitioner, Mr. Rishu

Ranjan, learned counsel for the respondent-State of Jharkhand, Mr. Diwakar

Upadhyay, learned counsel for the respondent-State of Bihar and Mr. Ashish

Kumar Thakur, learned counsel for respondent no.10.

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2. This writ petition has been heard through Video Conferencing in view

of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been

heard on merit.

3. The petitioner has preferred this writ petition for quashing the letter

dated 05.03.2019, contained in Annexure-13 of the writ petition. During the

pendency of the writ petition, the petitioner has filed I.A. No.2508 of 2020

for amendment in the prayer portion of the writ petition, whereby, such

prayer was allowed, which was incorporated by the petitioner in red ink in

the writ petition. By way of amendment, the order dated 20.02.2020 passed

by the Superintending Engineer, Waterways Circle, Hazaribag, contained in

Annexure-15 of the supplementary affidavit filed by the petitioner, was

challenged by the petitioner by which a sum of Rs.11,78,500/- was directed

to be recovered from the pensionary benefits of the petitioner. The prayers

for fixation of pension and release of pensionary and retiral benefits of the

petitioner have also been made pursuant to the said I.A.

4. The petitioner joined on the post of Junior Engineer under the Minor

Water Resources Department, erstwhile State of Bihar. The petitioner has

been transferred to several places during his entire service period where he

has served the respondents to their utmost satisfaction. The Government

initiated National Rural Employment Programme (NREP) with a view to

significantly increase employment opportunities in rural area. The Deputy

Development Commissioner vide its order dated 13.03.2002 sent the service

of the petitioner in Abhigaon Block for successful implementation and

execution of work under the NREP. The petitioner joined there. After

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bifurcation of the State of Bihar, the service of the petitioner was allocated

to the cadre of the State of Jharkhand in the year 2004. The Assistant

Engineer, Minor Irrigation Division, Arrah vide its office order dated

11.09.2004 relieved the petitioner to submit his joining in the State of

Jharkhand and directed him to handover his complete charge to one Krishna

Mohan Gupta, Junior Engineer, who has refused to accept the charge from

the petitioner as the petitioner was holding an additional post under

deputation. After allocation of the cadre, the petitioner joined the service in

the State of Jharkhand and he was posted at Waterways Division,

Hazaribag. After joining in the State of Jharkhand, the petitioner was not

being paid salary, which compelled him to move before this Court in W.P. (S)

No. 5715 of 2009, which was disposed of vide order dated 10.10.2018 with

direction to the respondents to decide the representation of the petitioner

with regard to issuance of Last Pay Certificate (LPC) and, thereafter, the

petitioner's salary has been started and the petitioner has received the

salary. The Executive Engineer, Minor Irrigation Division, Arrah vide letter

dated 26.06.2007 directed the Assistant Engineer, Minor Irrigation

Subdivision, Arrah to issue no dues certificate of the petitioner in absence of

which his service book and LPC are not being issued. A letter dated

08.05.2009 was issued, whereby, it has been intimated that the petitioner

received an advance of Rs.43,51,900/- for 35 plans that were registered in

the year 2003-04, out of which, the estimated cost of 26 plans was

Rs.38,06,600/- against which bills amounting to Rs.37,70,038/- has been

adjusted. The petitioner submitted an account of Rs.9,37,800/- for the

remaining 8 plans, which were mentioned in the measurement book and

passed by the Assistant Engineer, which has not been adjusted and one

-4- W.P. (S) No. 1673 of 2019

plan involving construction of the room at primary school has not been

completed for want of advance. The petitioner got an advance of

Rs.43,51,900/- for the implementation of 35 schemes for which he

submitted a bill of Rs.37,70,038/- which was adjusted for 26 plans after

which an advance of Rs.5,81,862/- remained with the petitioner. The

petitioner submitted a bill of Rs.9,37,800/- for remaining 8 plans which has

not been adjusted till date. The respondents adjusted the bill of

Rs.9,37,800/- for the 8 plans mentioned in the measurement book.

5. Mrs. Swati Shalini, learned counsel for the petitioner assailed the

impugned orders on the ground that there is no due on the part of the

petitioner. She submits that the petitioner is entitled for payment of

Rs.3,35,938/-, whereas, the respondents have arbitrarily demanded

Rs.11,78,500/- from the petitioner. She further submits that there is no

material on the record to suggest that the amount is still due with the

petitioner. She refers to the impugned order dated 05.03.2019, contained in

Annexure-13 of the writ petition and submits that in paragraphs 5 and 9 of

the impugned order, it has been disclosed that no material is available with

regard to adjustment of such due on the part of the petitioner. She also

submits that in the said impugned order, several attempts were made by the

authority concerned for procuring the document, but nothing has been

provided and in spite of that recovery order has been passed and the retiral

benefits of petitioner including the pension are not paid to the petitioner

and that is why the petitioner is compelled to move before this Court.

6. Mr. Rishu Ranjan, learned counsel for the respondent-State of

Jharkhand submits that the amount in question was disclosed by the State

of Bihar and that is why the impugned order has been passed. He refers to

-5- W.P. (S) No. 1673 of 2019

Annexure-7 of the writ petition and submits that calculation is there, so far

as recovery of Rs.11,78,500/- is concerned. He further submits that in the

LPC, recovery of that amount is also disclosed. By referring this document,

he submits that because of such reason, recovery order has been passed.

So far as payment of retirement benefits to the petitioner is concerned,

learned counsel for the respondent-State of Jharkhand is not in a position to

submit as to whether the same has been paid or not.

7. Mr. Diwakar Upadhyay, learned counsel for the respondent-State of

Bihar submits that respondent nos. 6 to 8 have filed counter affidavit and in

paragraph 9 of the said counter affidavit, it has been stated that the

grievance of the petitioner with respect to non-adjustment of advance of

Rs.11,78,500/- is related to the office of respondent no.10 and the State of

Bihar has nothing to do with the adjustment of the said advance. He further

submits that respondent no.10 is the competent authority to give specific

reply to the averments made in the writ petition with respect to the said

grievance of the petitioner.

8. Pursuant to the said stand of the respondent-State of Bihar, notice

was issued upon respondent no.10 by this Court vide order dated

19.10.2020. On 16.12.2020, Mr. Ashish Kumar Thakur appeared on behalf

of respondent no.10 and he took time for filing counter affidavit and the

counter affidavit has been filed on behalf of respondent no.10, wherein, it

has been stated that the document with regard to work done by the

petitioner is not available with respondent no.10.

9. Having heard learned counsel for the parties, the Court has gone

through the materials on the record. In the impugned order dated

05.03.2019, it has been disclosed in so many words that in spite of best

-6- W.P. (S) No. 1673 of 2019

efforts and special messenger deputed by the competent authority, nothing

has been procured in that regard. In paragraph 13 of the impugned order

dated 20.02.2020, contained in Annexure-15 of the supplementary affidavit

filed by the petitioner, it has been disclosed that the petitioner has

submitted the book of accounts and it has also been stated in clear terms

that with regard to due amount of Rs.11,78,500/-, no source of adjustment

has been disclosed and that is why the Executive Engineer has directed to

recover that amount from the pensionary benefits of the petitioner.

However, it has been further stated that the Executive Engineer has made

certain objections. No departmental proceeding was pending against the

petitioner before his retirement. It has been submitted at bar that no

criminal case is pending against the petitioner. There is no reason why the

amount, which has not been established in spite of so many efforts made by

the respondents, has been ordered to be withheld and not paid to the

petitioner. On perusal of the impugned orders, it is clear that there is no

material with regard to the said amount against the petitioner. A reference

in this regard may be made to the judgment rendered by the Hon'ble

Supreme Court in the case of State of Jharkhand v. Jitendra Kumar

Srivastav, reported in (2013) 12 SCC 210. Paragraphs 11 and 16 of the

said judgment are quoted herein below:

"11. From the reading of the aforesaid Rule 43(b), following position emerges:

(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.

(ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending.

-7- W.P. (S) No. 1673 of 2019

(iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings.

(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before."

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 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 encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."

10. The State of Bihar in paragraph 9 of their counter affidavit has

disclosed that there is no document to that regard. Pursuant to issuance of

notice upon respondent no.10, he has appeared and he has also filed

counter affidavit, wherein, it has been stated that respondent no.10 is also

not able to disclose anything against the petitioner.

11. In that view of the matter, the impugned orders cannot sustain in the

eyes of law. Accordingly, the impugned order dated 05.03.2019, contained

in Annexure-13 of the writ petition and the impugned order dated

20.02.2020, contained in Annexure-15 of the supplementary affidavit filed

by the petitioner, are quashed. The respondents shall expedite the process

for payment of pension to the petitioner and they will complete the exercise

within a period of twelve weeks from the date of receipt/production of a