SHIVAJEE JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner, the Counsel for the State as well as the counsel appearing for the Accountant General, Bihar, Patna.

(2.) PETITIONER has filed this application for a direction to the respondents to make payment of his pension and other retiral dues considering the fact that he retired on 31.1.2002 from the post of Clerk -cum -cash -ier from the office of the Superintendent of Darbhanga Medical College Hospital, Leheriasarai, Darbhanga. Petitioners case is that after his retirement he submitted his pension paper with no dues certificate issued by the concerned authority. Accordingly The Accountant General issued authority slip for payment of pension and gratuity in favour of the petitioner, but on the direction of the respondent Superintendent of D.M.C.H. the Treasury Officer is not making the payment due to non receipt of no dues certificate.

(3.) CONSIDERING the pleadings of the parties and the submissions made by their counsel it transpires that till the date of petitioners retirement there was no allegation of defalcation against him. He retired on 31.1.2002 and the authority slip was issued by the Accountant General in the year 2003 on the basis of the order of sanction by the competent authority. Till that date also no allegation was made against the petitioner. It has been admitted by the counsel appearing for the State that no proceeding has been initiated against the petitioner under Section 43(b) or under Section 139(a) of the Bihar Pension Rules. Till 25.8.2004 no criminal proceeding has been initiated against the petitioner. Subsequently a criminal case has been instituted against the petitioner under sections 406 and 409 of the Indian Penal Code vide Laheriasarai P.S. Case No.78 of 2005. The legal provision on this point is quite clear. Once an employee is retired and no proceeding was initiated against him till date he was in service in that case if subsequently it is detected that pecuniary loss has been caused to the government by the concerned employee, proceeding under section 43(b) of the Bihar Pension Rules can be initiated against him and that proceeding must conclude as provided under the pension rules. In case the pension has already been fixed in favour of an retired employee, proceeding under Section 139(a) of the Bihar Pension Rules should be initiated against the retired employee. Only on conclusion of the proceeding the total or part of the pension can be withheld. Unless such proceeding is adopted by the respondent authority the pension of the retired employee cannot be withheld arbitrarily. In the present case admittedly pension of the petitioner has been fixed and authority slip has been issued in his favour and till date no proceeding under the pension rules has been initiated against him. In the facts and circumstances of the case the respondent authority cannot withheld the payment of pension and gratuity as well as other retiral dues to the petitioner. Any such action on the part of the respondent authority will be deemed to be illegal and arbitrary on his part.