ANIL KUMAR SHARMA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel for the parties. This writ petition has been preferred for quashing the notification issued under Memo No. 4191 dated 26.11.2008 whereby a decision has been taken to convert departmental proceeding pending against the petitioner to continue under Rule 43B of the Bihar Pension Rules, 1950 (Now adopted by State of Jharkhand) as the petitioner has retired on 31.05.2007 during the pendency of disciplinary proceeding. The petitioner has sought for a direction upon the respondents to pay the entire retirement benefits including GPF, balance gratuity, pension, insurance amount, leave salary etc. Although, the main prayer in the writ petition preferred by the petitioner is challenging the conversion of the departmental proceeding under Rule 43B of the Jharkhand Pension Rules as directed by the impugned order dated 26.11.2008, learned counsel for the petitioner seeks to confine his prayer for the present for issuance of a direction upon the respondent to pay the balance of post retiral dues like 10 % of provisional pension, 10 % of provisional gratuity and 10 months leave salary, which are being withheld.

(2.) Reply to the counter affidavit has been filed by the learned counsel for the petitioner in which it has been stated that 90 % of provisional pension and provisional gratuity and in the unrevised scale has been paid, during the pendency of the writ petition. However, the petitioner submits that 10 % of the provisional pension and 10% of provisional gratuity has been withheld on account of pendency of the proceeding under Rule 43B in which till date no decision has been taken by the department. Learned counsel for the petitioner relied upon the judgment in the case of Dr. Dudh Nath Pandey Vs. State of Jharkhand & Ors, 2007 4 JCR 1 and submits that legal position has clearly been declared in the said judgment that Rule 43B does not contemplate the power to withhold the pension etc. during the pendency of the judicial proceeding or departmental proceeding. It contemplates exercise of such power only if the pensioner has been found guilty of grave misconduct in those proceeding. It has further been stated that apart from the aforesaid question which was answered in the Full Bench Judgment, it has also been held that there is no power at all for the State Government to withhold leave encashment under Rule 43B at any stage. The relevant paragraph nos. 19 to 21 of the judgment is quoted hereinbelow:-

(3.) Learned counsel for the respondents, on the other hand, submits that proceeding, which has been converted under Rule 43B against the petitioner vide order dated 26.11.2008 (Annexure-7) has not yet been concluded. However, he does not dispute the legal position as held in the judgment of the case quoted .