DINESHWAR PRASAD SHARMA, SON OF LATE R.S. SHARMA, RESIDENT OF BARIATU, P.O. AND P.S. BARIATU, DISTRICT RANCHI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Initially the writ application, contained for two-fold prayers. Subsequently, vide order dated 11.02.2016 passed in I.A. No.2395 of 2015, amendment has been made to the writ application and in the amended writ application, following prayers have been sought for by the petitioner:

(2.) The factual matrix, as averred in the writ application, in a nutshell is that while the petitioner was serving as Touring Veterinary Officer, Animal Husbandry and Fishery Department, remained under suspension from 21.03.2002 to 29.02.2012 till the date of his retirement and his suspension order was passed under Rule 49 A of the Civil Services (CCA) Rules. During pendency of criminal case i.e. R.C.45(A)/1996, no specific order for revocation of order of suspension was passed till the petitioner attained the age of superannuation i.e. 29.02.2012. The aforesaid criminal case as mentioned above initiated in the year 1996 is pending for disposal. While the petitioner was continuing in service, a departmental proceeding was initiated on the self same charges on 05.03.2009 vide notification no.470 but the said proceeding was dropped on 01.10.2009 as per Annexure-11 of the rejoinder to the counter affidavit of the amended writ application.

(3.) In order to substantiate the prayer no.1, learned counsel for the petitioner submits that the release of suspension allowance for the period from 21.03.2002 to 04.09.2002, 29.03.2003 to 08.03.2006 and 09.03.2006 to 30.04.2007 has been denied, on the ground of non attendance in the headquarter fixed at District Animal Husbandry office, Palamu, during the period of suspension. But the petitioner is entitled to subsistence allowance as laid down under Rule 96 of the Service Code. Learned counsel for the petitioner submitted with vehemence that supplying of certificate of no employment in any other organization, during the suspension period is to be complied and no extra condition of daily attendance at the headquarter has been made as has been held by the Honourable Apex Court in the case of State of Bihar Vs. Arbind reported in AIR 2013 SC 3329 . So far as prayer no.2 in the amended writ petition is concerned, learned counsel for the petitioner submits that the same relates to payment of full salary for the suspension period after retirement. Learned counsel for the petitioner submits that since salary does not form part of the pension, hence it cannot be withheld after retirement. Since the leave encashment, which is salary cannot be touched after retirement as dealt in Full Bench decision of this Court in case of Doodh Nath Pandey Vs. State of Jharkhand & Ors. reported in 2007 (4) JCR 1 (Jhr) (FB) , the principle of which has been upheld in Jitendra Kumar Srivastava's case. Therefore, the counsel for the petitioner submits that the petitioner is entitled to full salary as there is no specific provision to deal with the period of suspension after retirement as per the decision of the Honourable Apex Court reported in AIR 1964 SC 787 (R.P. Kapur Vs. Union of India and Anr.) . So far as prayer no.3, which pertains to fixation of pensionary benefits on full salary on the date of retirement after adding the increments pursuant to 6th pay revision commission. Learned counsel for the petitioner submitted that after retirement the order of suspension was merged with normal superannuation of the petitioner. Since on the date of retirement there was no finding of grave misconduct or the pecuniary loss is proved or the service record is found unsatisfactory or future conduct doubtful, therefore, the petitioner is entitled to the said reliefs. So far as prayer no.4 of the amended writ petition is concerned, learned counsel for the petitioner by referring to various circulars 14.08.2002, 01.09.2009, 11.09.2002 and 20.11.2008, which have been annexed as Annexure-12 series to the rejoinder to the counter to the amended writ petition, submitted that the petitioner is entitled to get the increments and the said increments can be recovered, if ultimately the petitioner is found guilty in the criminal case.