Jharkhand High Court
Navneet Kumar Shishu vs The State Of Jharkhand on 3 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP(S) No. 1888 of 2020
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Navneet Kumar Shishu ..... Petitioner(s)
-Versus-
1. The State of Jharkhand
2. The Secretary Labour Employment and Training Department, Govt. of
Jharkhand, Nepal House, Doranda, Ranchi.
3. The Accountant General, Jharkhand, Ranchi. ..... Respondent(s)
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CORAM: HON'BLE MR. JUSTICE ANANDA SEN.
Through: Video Conferencing.
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For the petitioner(s): Mr. Sanjay Praad, Advocate.
For the State: Mr. Shivam Utkarsh Sahay, AC to SC (Mines)-II
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ORDER
C.A.V on: 04.08.2021 Pronounced on: 03 /09/2021
1. Heard the learned counsel for the parties through video
conferencing. They had no complaint in respect of the audio and video clarity
and quality.
2. In this writ petition, the petitioner has as prayed for a direction upon
the respondent authorities for payment of gratuity and 10% pension to the
petitioner, which have been withheld by the respondent authorities, along with
penal and statutory interest.
3. Counsel for the petitioner submits that the petitioner was posted as
Factory Inspector and got superannuated with effect from 30.6.2019. He submits
that during course his service tenure, he was implicated in a criminal case being
Vigilance P.S. Case No. 01/2006 dated 9.1.2006 under Sections 7 and 13 of the
Prevention of Corruption Act. He further submits that the case is pending before
the Additional Judicial Commissioner-VIII, Ranchi. He also submits that on the
pretext of pendency of the said criminal case, the respondent authorities have
withheld gratuity and 10% pension of the petitioner. Counsel for the petitioner
admits that 90% pension has been paid to the petitioner. He further submits that
the respondents are taking shelter of Rule 43(c) of the Jharkhand Pension Rules,
but in the case of the petitioner, the same cannot be applied. During course of
argument, the counsel for the petitioner only relies upon the judgment passed in
the case of Dr. Hira Lal -Vs.- State of Bihar and Others reported in (2020) 4
SCC 346. By relying upon the aforesaid judgment, he submits that the
respondent authorities have acted beyond their jurisdiction to deduct 10%
pension and withhold the entire gratuity of the petitioner. He further submits that
Rule 43(c) of the Jharkhand Pension Rules cannot be made applicable so far as
this petitioner is concerned.
4. Counsel for the State submits that the judgment, which the
petitioner has relied upon, is of no help to him. It is submitted that admittedly the
petitioner is involved in a criminal case and the trial of the same is pending. He
also submits that during pendency of the trial, the petitioner is not entitled to
receive balance amount of 10% of his pension and gratuity in terms of Rule
43(c) of the Jharkhand Pension Rules. As per the respondents, Rule 43(c ) of
the Jharkhand Pension Rules is applicable so far as this petitioner is concerned
and also as per the judgment dated 8.2.2019 delivered by this Court in WPS No.
3004 of 2018 (Laljit Prasad Sinha -Vs- the State of Jharkhand and Ors.),
which has been upheld by the Division Bench of this Court in LPA No.408/2019.
Rule 43(c) is prospective and the petitioner has superannuated after Rule 43(c)
was promulgated, thus this Rule is applicable so far as this petitioner is
concerned. He further submits that as per the said Rule, the petitioner is not
entitled for the relief(s), as claimed by him.
5. After hearing the parties and after going through the record, I find
that the petitioner superannuated from service with effect from 30.6.2019. He is
an accused in Vigilance P.S. Case No. 01/2006 registered under Sections 7 and
13 of the Prevention of Corruption Act, which is still pending against him. 90% of
pension has been paid to the petitioner whereas entire gratuity and 10% of
pension has been withheld in view of Rule 43(c) of the Jharkhand Pension Rules.
6. Now the question, which falls for consideration as to whether the
respondent authorities can withhold entire gratuity and 10% pension of the
petitioner by invoking Rule 43(c) of the Jharkhand Pension Rules. Rule 43(c) of
the Jharkhand Pension Rules has been incorporated in Jharkhand Service Code,
2000 by invoking Article 309 of the Constitution of India. Notification to that effect
was issued by the Order of the Hon'ble Governor on 23.7.2018. Thus, by virtue
of the said Notification, it can be said that the aforesaid provision is applicable
with effect from 23.7.2018.
7. This Hon'ble Court in the case of WPS No. 3004 of 2018 (Laljit
Prasad Sinha -Vs- the State of Jharkhand and Ors.) has held that Rule 43(c)
has to be given prospective effect and the same cannot be made applicable to
an employee, who has superannuated prior to promulgation of the said Rule.
8. For the better appreciation, it is necessary to quote Rule 43(c) of the
Jharkhand Pension Rules, which is as follows:-
"43 (c): Where any departmental or judicial proceeding is
instituted or continued against an officer/employee who has
retired on attaining the age of compulsory retirement or
otherwise, he shall be sanctioned by the Government which
instituted such proceeding, during the period commencing
from the date of his retirement to the date on which, upon
conclusion of such proceeding final orders are passed, a
provisional pension not exceeding the maximum pension
which would have been admissible on the basis of his
qualifying service upto the date of retirement, or if he was
under suspension on the date of retirement, upto the date
immediately preceding the date on which he was placed
under suspension, but no gratuity or death-cum-retirement
gratuity shall be paid to him until the conclusion of such
proceedings and the issue of final orders thereon."
9. As per the aforesaid Rule, if a judicial proceeding is continuing or
pending against an employee who has retired, no gratuity shall be paid to him
until conclusion of such proceeding. By virtue of the said Rules, the employer
gets power to withhold gratuity and pension also and the petitioner is only
entitled for provisional pension not exceeding the maximum pension, which
would have been admissible. The aforesaid provision thus gives power to the
employer to pay pension provisionally and withhold the entire amount of gratuity
till conclusion of the proceeding against the petitioner. In this case, admittedly
there is a criminal proceeding pending against the petitioner.
10. In the instant case, the petitioner has superannuated on 30.6.2019,
which is much after the rule has been framed. In view of the judgment passed in
WPS No. 3004 of 2018 (Laljit Prasad Sinha -Vs- the State of Jharkhand and
Ors.) by this Court, I hold that this Rule will govern the petitioner, as the
petitioner superannuated on 30.6.2019.
11. The petitioner heavily relied upon the judgment passed by the
Hon'ble Supreme Court of India in the case of Dr. Hira Lal -Vs.- State of Bihar
and Others reported in (2020) 4 SCC 346. He submits that as per the said
judgment, the respondent authorities cannot withheld gratuity and 10% pension
of an employee.
12. I have gone through the entire judgment of the Hon'ble
Supreme Court of India. On the facts of this case, the aforesaid judgment cannot
be made applicable to the case of the petitioner. The Hon'ble Supreme Court in
the aforesaid case had dealt with the situation of Government Servant of Bihar.
The Government of Bihar on the basis of some executive instruction had
withheld some portion of gratuity and pension of the applicant. The Hon'ble
Supreme Court has held that by virtue of some executive instruction, the right of
pension cannot be taken away nor can gratuity be withheld, since the gratuity is
the part of the pension. The Hon'ble Supreme Court took note of the fact that the
State of Bihar by invoking Article 309 of the Constitution had incorporated Rule
43(c) in the Bihar Pension Rules, which gives power to the State to withhold
gratuity and pension of an employee. This Rule was brought in the Statute on
19.7.2012. The Hon'ble Supreme Court, thus, in the aforesaid judgment in
paragraph 26 has held that the State was not justified in withholding 10%
pension, in view of administrative Circular, which was then prevalent. In the case
which was before the Hon'ble Supreme Court, the employee superannuated on
31.3.2008, whereas the amendment in Bihar Pension Rule came with effect from
19.7.2012. The Hon'ble Supreme Court held that withholding of pensionary
benefit is not proper and directed to release the pension, which was withheld
after superannuation of the applicant on 31.3.2008 till 19.7.2012 I.e when the law
was properly framed.
13. It is relevant to mention that 19.7.2012 is the date when State of
Bihar incorporated Rule 43(c) in Bihar Pension Rules. After holding such, the
Hon'ble Supreme Court held that after Rule 43(c) was inserted in the Bihar
Pension Rules with effect from 19.7.2012, the State is empowered to withhold
10% of pension amount of the applicant till criminal proceeding is concluded.
This clearly supports the view that from coming into effect the said Rule, the
retiral benefits can be withheld by invoking Rule 43(c) of the Pension Rules.
14. Thus, I find that Rule 43(c) of the Jharkhand Pension Rules is
applicable so far as this petitioner is concerned and the respondent authorities
are within their jurisdiction to withhold gratuity and 10% pension of the petitioner
in terms of Rule 43(c) of the Jharkhand Pension Rules. Further the judgment of
the Hon'ble Supreme Court, cited by the petitioner, in fact, supports the action of
the respondent authorities in withholding gratuity and 10% pension of the
petitioner and the same is of no help to the petitioner.
15. In view of what has been held above, this writ petition is dismissed.
NAFR/Anu-CP-2. (ANANDA SEN, J.)
