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: Jharkhand High Court
There is an imprimatur to the legal principle that the right to receive a pension is recognised as a right in property. It follows that the 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. The High of Court Jharkhand in the case of Manorama Jha vs The State of Jharkhand [W.P.(S) No. 993 of 2019] by Single Bench consisting of Hon’ble Shri Justice Sanjay Kumar Dwivedi. The husband of the petitioner was appointed on the post of Medical Officer in the Department of Health in the erstwhile State of Bihar. Subsequently, in view of the bifurcation of the State of Bihar, the petitioner was allocated the State of Jharkhand cadre and superannuated from the post of Civil Surgeon-cum Medical Officer. Further, the petitioner has preferred this writ petition for quashing the passed by the Government of Jharkhand whereby 10 % of Gratuity and Pension has been directed to be withheld. The learned counsel for the petitioner submits that the husband of the petitioner has not received any show cause, except a show-cause notice, which was duly replied nor any departmental or criminal case is pending against the husband of the petitioner. He submits that no departmental proceeding has been initiated against the husband of the petitioner. He submits that only on the basis of one letter of the State of Bihar the said order has been passed by the State of Jharkhand whereby 10 % pension and gratuity has been directed to be withheld. He submits that there is no finding of any loss in terms of Rule 43(b) which is a condition precedent for passing such order. He further submits that there was no departmental proceeding initiated against the husband of the petitioner before his superannuation. He submits that in that view of the matter, Rule 43(2)(b) has wrongly been applied that too, on a letter of 2001 by the State of Bihar. The learned counsel for the respondent-State of Jharkhand has tried to justify the order and submits that there is no material before the State of Jharkhand and the State of Jharkhand was compelled to take a decision in light of the 2001 order of the State of Bihar.
W.P.(S) No. 9919] IN THE HIGH COURT OF JHARKHAND RANCHI W.P.(S) No. 9919 Manorama Jha aged about 70 years wife of late Dr. Krishna Bandhu Jha resident of Hazaribagh Behind Caramel School PO Hazaribagh Sadar PS Hazaribagh Sadar District Hazaribagh(Jharkhand) Versus ….. Petitioner 1. The State of Jharkhand through the Principal Secretary Health Department Government of Jharkhand having its office at Project Bhawan PO Dhurwa PS Jagarnathpur District Ranchi 2. The Director in Chief Department of Health Government of Jharkhand having its office at Namkum PO Namkum PS Namkum District Ranchi 3. The State of Bihar through the Principal Secretary Health Department Government of Bihar having its office near New Secretariat PO PS and District Patna Bihar 4. The Accountant General Jharkhand having its office at Doranda PO and PS Doranda District Ranchi Jharkhand 5. The Accountant General Bihiar having its office near R Block PO and PS Patna District Patna Bihar ............................... Respondents CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Rohit Sinha Advocate For Resp. State Mr. Shadab bin Haque Advocate For Resp.State(Bihiar)Mr. Diwakar Upadhyay Advocate For Resp.No.4(Acct.Gen)Mr. Sudarshan Srivastav Advocate Heard Mr. Rohit Sinha the learned counsel appearing on behalf of the petitioner Mr. Shadab bin Haque the learned counsel appearing on behalf of the respondent State of Jharkhand Mr. Diwakar Upadhyay the learned counsel appearing on behalf of the respondent State of Bihar and Mr. Sudarshan Srivastava the learned counsel appearing for the respondent No.4[Accountant General]. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into W.P.(S) No. 9919] 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. The petitioner is happened to be the widow of late Dr. Krishna Bandhu Jha who died on 22.05.2015 and that is why she has come before this Court. The petitioner has preferred this writ petition for quashing the order dated 02.01.2004 passed by the Government of Jharkhand whereby 10 % of Gratuity and Pension has been directed to be withheld. The prayer for releasing of the said 100 % pension and gratuity were also made. Prayer for penal interest is also made. The husband of the petitioner was appointed on 02.12.1966 on the post of Medical Officer in the department of Health in the erstwhile State of Bihar. Subsequently in view of bifurcation of the State of Bihar the petitioner was allocated the State of Jharkhand cadre and superannuated on 31.01.2001 from the post of Civil Surgeon cum Medical Officer Giridih. A show cause was issued in the year 1998 for the alleged purchase of the medicine which was replied by the husband of the petitioner. The learned counsel for the petitioner submits that the petitioner has also moved in W.P.(S) No.6607 2002 which was disposed of with a direction to consider the case of the petitioner. He further submits that the husband of the petitioner has not received any show cause except a show cause dated 19.05.1998 which was duly replied nor any departmental or criminal case is pending against the husband of the petitioner. He submits that no departmental proceeding has been initiated against the husband of the petitioner. By way of referring the impugned order dated 02.01.2004 he submits that only on the basis of one letter W.P.(S) No. 9919] of the State of Bihar the said order has been passed by the State of Jharkhand whereby 10 % pension and gratuity has been directed to be withheld. He submits that there is no finding of any loss in terms of Rule 43(b) which is a condition precedent for passing such order. He further submits that there was no departmental proceeding initiated against the husband of the petitioner before his superannuation. He submits that in that view of the matter Rule 43(2)(b) has wrongly been applied that too on a letter of 2001 by the State of Bihar. He submits that the State of Jharkhand was required to take independent decision irrespective of the document of the Government of Bihar. The learned counsel for the respondent State of Jharkhand has tried to justify the order and submits that there is no material before the State of Jharkhand and the State of Jharkhand was compelled to take decision in light of 2001 order of the State of Bihar. Mr. Upadhyay the learned counsel for the respondent State of Bihar submits that pursuant to the order of this Court dated 25.11.2020 a supplementary counter affidavit dated 04.02.2021 has been filed on behalf of the respondent State of Bihar. By way of referring paragraph no.5 of the said supplementary counter affidavit he submits that the office of the Superintendent of Police Central Bureau of Investigation Animal Husbandry Department Branch Patna informed vide letter dated 22.01.2021 wherein it has been stated that no MSD scam against Dr. Krishna Bandhu Jha the then District Tuberculosis Officer Hazaribagh is pending. Having heard the learned counsels appearing on behalf of the parties the Court has gone through the materials on record including the impugned order dated 02.01.2004. The said order was passed pursuant to the order of this Court in W.P.(S) No.66002 whereby W.P.(S) No. 9919] 10% of the pension and gratuity was directed to be withheld on the strength of the letter dated 11.07.2001 by the Government of Bihar and that too applying Rule 43(b) of Pension Rules. This order has been passed on the strength of Government of Bihar letter dated 11.07.2001 which was not required to be considered in view of the fact that now the petitioner was in the cadre of the State of Jharkhand and the State of the Jharkhand was required to take independent decision with regard to the husband of the petitioner. Rule 43(b) is not applicable in the facts and circumstances of the present case and in view of the fact that no departmental proceeding before the retirement was pending against the husband of the petitioner. There is no finding to that effect any loss has occurred to the State of Jharkhand and for Rule 43(b) finding of loss is condition precedent. In the supplementary counter affidavit in clear terms the State of Bihar has now disclosed that there is no MSD scam against the husband of the petitioner is pending. The case of the petitioner is fully covered in the light of the judgment rendered by Hon’ble Supreme Court in the case of ‘State of Jharkhand v. Jitendra Kumar Srivastav’12 SCC 210. Paragraph nos.11 and 16 of the said judgment are quoted hereinbelow: “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. 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: W.P.(S) No. 9919] “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.” As a cumulative effect of the above discussion the impugned order cannot sustain in the eye of law and accordingly the impugned order dated 02.01.2004 is quashed. The petitioner shall be entitled for consequential benefits. The respondent State of Jharkhand is directed to release the entire pension and gratuity 10% of pension and gratuity so withheld within twelve weeks. The prayer of interest to the petitioner is not being considered by this Court in view of the fact that the petitioner has approached this Court in the year 2019 whereas the impugned order was passed in the year 2004. SI Sanjay Kumar Dwivedi J) 