Gaur Mohan Roy v. The State Of Bihar And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11392 of 2014 =========================================================== Gaur Mohan Roy, Son of Late Tuni Lal Roy, Resident of Village + Post OfficeKanheria, Police Station- Degarwa, District- Purnea, Bihar .... .... Petitioner
Versus
1. The State of Bihar through the Secretary, Social Welfare Department, New Secretariat, Patna
2. Director, Social Welfare Department, Sichai Bhavan, Patna
3. Deputy Director, Social Welfare, Tirhut Division, Muzaffarpur
4. Assistant Director, Social Security Cell-cum-Child Protection Unit, Muzaffarpur
5. District Welfare, Purnea
6. Treasury Officer, Purnea
7. The Accountant General, Bihar, Birehand Patel Path, Patna .... .... Respondents =========================================================== Appearance :
For the Petitioner/s : Mr. Vindhya Keshri Kumar, Senior Advocate Mr. Shailendra Kumar Singh, Advocate For the Respondent/s : Mr. Syed Hussain Majeed, AC to SC-6 =========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date: 07-08-2017 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Accountant General.
2. This writ petition has been filed by the petitioner for direction to the respondents to continue payment of sanctioned
2 / 12 pension and also for direction to pay the gratuity and arrear of pension and also to pay the amount of unutilized earned leave.
3. The case of the petitioner in brief is that he was appointed as clerk in the office of District Welfare Office, Purnea on 01.04.1972. He was posted at various places and was granted 1st Assured Career Progression on 01.04.1985 and was lastly posted as Deputy Superintendent, Remand Home, Muzaffarpur from where he superannuated on 30.06.2009. He submitted his pension papers on 01.07.2009 in the office of Assistant Director, Social Security, Muzaffarpur (respondent no.4), who was his immediate controlling officer, with request to send pension papers for sanction and payment of post retiral dues. When after repeated persuasion, pension papers were not sent by the respondent no.4, the petitioner filed a petition before the Deputy Director, Social Welfare, Tirhut Division, Muzaffarpur, who directed the respondent no.4 to sanction provisional pension and forward his pension papers to the Accountant General, Bihar vide order as contained in Memo No.871 dated 20.04.2010 (Annexure-2).
4. Thereafter, the petitioner filed a writ petition, vide C.W.J.C. No.18102 of 2010, for direction to pay the leave encashment, gratuity and pension. During pendency of the writ petition, the respondent no.4 forwarded the pension papers to the
3 / 12 office of the Accountant General, Bihar, Patna. The Accountant General, Bihar, Patna passed order authorizing payment of pension and gratuity to the petitioner, vide Pension Payment Order and Gratuity Payment Order dated 30.04.2011. Even after issuance of Pension Payment Order and Gratuity Payment Order, the payments were not made to the petitioner by the Treasury Officer, Purnea. In the meantime, the writ petition filed by the petitioner was taken up by this Court and by order dated 05.04.2012, this Court directed the petitioner to appear before the Treasury Officer, Purnea along with copies of Pension Payment Order and Gratuity Payment Order within four weeks along with a copy of the order whereafter, the Treasury Officer was directed to ensure that the entire dues as per two authority slips are paid to the petitioner within ten days. After, the aforesaid order dated 05.04.2012 passed by this Court, the respondents paid pension to the petitioner only for the month of July, 2012 and no payment was made thereafter.
5. Being aggrieved by the action of the respondents, the petitioner filed a contempt petition before this Court, vide M.J.C. No.5654 of 2012 against the respondent-Treasury Officer, Purnea and others in which an affidavit was filed by the Treasury Officer, Purnea stating that since „no dues certificate‟ had not been issued in favour of the petitioner by the Assistant Director, Social Security
4 / 12 Cell-cum-Child Protection Unit, Muzaffarpur, the payment of pension of the petitioner after July, 2011 was stopped. Thereafter, contempt petition was disposed of on 25.09.2013 with liberty to the petitioner to seek remedy in accordance with law.
6. Mr. Vindhya Keshri Kumar, learned Senior Advocate appearing for the petitioner has submitted once this Court had issued direction for payment of retiral dues to the petitioner in terms of the Pension Payment Order and Gratuity Payment Order, there was no occasion for the respondents to stop the payment of pension. He has submitted that the impugned action whereby the respondents have stopped the payment of pension after paying pension for a month and not paying gratuity and leave encashment in the name that „no dues certificate‟ has not been granted to the petitioner by the Assistant Director, Social Welfare Cell-cum-Child Protection Unit, Muzaffarpur is erroneous in law as also on facts. He has submitted that prior to the retirement of the petitioner, no departmental proceeding was pending against him.
Even after his retirement, no departmental proceeding was ever initiated against him. There is also no criminal case instituted against him either in the police station or before the court.
5 / 12 withholding the payment of retiral dues to the petitioner.
7. On the other hand, learned counsel for the State has submitted that between the year 2005 and 2007, a total amount of Rs.31,66,924/- had been withdrawn by the petitioner from Muzaffarpur Treasury and spent in maintenance of Observation Home, Muzaffarpur, but the same has not been mentioned in the cash book of Observation Home submitted to the office of the Assistant Director, Social Security Cell-cum-Child Protection Unit, Muzaffarpur. He has submitted that in absence of the entries having made in respect of the expenditure of the aforesaid amount, it is inferred that the amount has been misappropriated by the petitioner. He has submitted that moreover after retirement, the petitioner did not immediately hand over the charge.
He kept delaying handing over of charge and now he is taking plea that all the vouchers and registers of the Observation Home have been burnt by the children of the Observation Home. On query made by the Court, he would admit that no FIR has been registered against the petitioner regarding the alleged act of misconduct on the part of the petitioner. However, he has submitted that if the vouchers and records had been burnt, it was his duty to institute FIR in this regard and inform the authorities concerned, but he failed to do so.
6 / 12 charge of Rs. 31,66,924/- has taken place nor account has been submitted by the petitioner and, thus, „no dues certificate‟ has not been issued to him and in absence of „no dues certificate‟ having been issued by respondent no.4, the Treasury Officer has rightly stopped the payment of pension to the petitioner. He has also justified the action of the Treasury Officer in not releasing the payment of gratuity and earned leave.
8. In reply, Mr. Vindhya Keshri Kumar, learned Senior Advocate appearing for the petitioner has submitted that the argument advanced by the learned counsel for the State are not correct. He has submitted that the petitioner had not withdrawn any amount, as he was not Drawing and Disbursing Officer. As a matter of fact, the District Welfare Officer-cum-Superintendent of Observation Home, Muzaffarpur was the Drawing and Disbursing Officer of the said office. He has submitted that the bills prepared by the office are signed by the Drawing and Disbursing Officer and sent to the treasury and, after passing of the same by the Treasury Officer, the same is deposited in the account in the name of District Welfare Officer-cum-Superintendent of Observation Home, Muzaffarpur in SBI, Main Branch, Muzaffarpur and if any amount is withdrawn from the said account, it was only by the cheque issued by the Drawing and Disbursing Officer. He has submitted that respondent
7 / 12 no.4 had earlier issued sanction order for payment of pension and gratuity knowing fully well that there is no dues against the petitioner and only thereafter, the Accountant General, Bihar, Patna had issued the Pension Payment Order and Gratuity Payment Order. In respect of non-handing over of the charge, he has submitted that the petitioner had handed over charge to one Sadan Kumar on 29.12.2009. The remaining documents such as voucher, cash book, stock register, bill book could not be handed over to him because of non-cooperation of said Sadan Kumar. In the meantime, the petitioner fell seriously ill and was hospitalized at Muzaffarpur and, thereafter, he was taken to his native place. He has submitted all those documents were burnt to ashes on 16.01.2010. By that time, the petitioner had already retired from service and, thus, it was not for him to institute FIR rather it was for his successor Sadan Kumar to institute FIR.
9. I have heard learned counsel for the parties and perused the record.
10. The facts of the case to the extent that the petitioner retired on 30.06.2009 and at the time of his retirement no departmental proceeding was pending against him has not been disputed by the learned counsel for the State. It has also not been disputed by the learned counsel for the State that even after
8 / 12 retirement no proceeding under the Bihar Pension Rules has been initiated against the petitioner. It is also not disputed that till date no criminal case (complaint or first information report) has been instituted against the petitioner in respect of misappropriation of any amount. The only dispute being raised by the State is that the petitioner, while in service, had withdrawn Rs.31,66,924/- from the treasury, which was not accounted for by him during his service period and that the petitioner has not handed over charge to his successor. These facts are disputed by the learned Senior Advocate appearing for the petitioner. It is also an admitted position that after retirement of the petitioner, the respondent no.4, the Assistant Director, Social Security Cell-cum-Child Protection Unit, Muzaffarpur has sanctioned the payment of pension and gratuity to the petitioner pursuant to which, Pension Payment Order and Gratuity Payment Order were issued by the office of the Accountant General, Bihar, Patna.
11. It is well settled in law that once a government servant is allowed to retire from service, the relationship of master and servant ceases to exist on account of severance of status. Hence, the respondents cannot initiate any disciplinary proceeding, as the petitioner was allowed to retire without any objection. However, after retirement from service, the State is empowered to withhold or
9 / 12 withdraw the pension or any part of pension or to recover from the pension of the whole or part of any pecuniary loss caused to the government by misconduct or negligence in terms of Rule 43(b) of the Bihar Pension Rules, but the government can exercise such power only in case if the pensioner is found guilty of grave misconduct in departmental or judicial proceeding. Further, in terms of Rule 43(c) of the Bihar Pension Rules, in appropriate case, the State may sanction only provisional pension instead of final pension.
12. The proviso to Rule 43(b) of the Bihar Pension Rules stipulates that such departmental proceeding, if not instituted while the government servant was on duty either before the retirement or during re-employment shall not be instituted save with the permission of the State Government and such sanction shall not be accorded in respect of any event, which took place more than four years before the institution of such proceedings. It further stipulates that the proceedings shall be conducted in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
13. Rule 43(c) of the Bihar Pension Rules confers power upon the State Government to pay provisional pension to the government servant where departmental or judicial proceeding in which prosecution sanctioned and initiated against such servant is not
10 / 12 concluded till his retirement. However, in such case also, the amount of provisional pension shall in no case be less than 90%.
14. In the present case, since no departmental or judicial proceeding was initiated during the service period, there is no question of taking any action by the respondent-State under Rule 43(c) of the Bihar Pension Rules against the petitioner.
15. Similarly, in terms of the proviso to Rule 43(b) of the Bihar Pension Rules, no sanction can be accorded for initiating any proceeding under Rule 43(b) of the Bihar Pension Rules, as the petitioner retired on 30.06.2009 and the alleged withdrawal of amount relates to the period 2005 to 2007, that is certainly more than the statutory period of four years prescribed under the Bihar Pension Rules.
16. Thus, the respondents are clearly debarred from initiating any proceeding against the petitioner for withholding or recovering any amount from his pension. Hence, merely because the respondents allege that the petitioner did not account for certain amount, which he withdrew while in service, which is disputed by the petitioner, they would not be justified in denying payment of pension or gratuity or earned leave to the petitioner, which have duly been sanctioned by the respondent no.4 and authorized by the Accountant General, Bihar, Patna.
11 / 12
17. Such denial of payment of pension and other retiral dues by the respondents is contrary to the ratio laid down by the Supreme Court in the matter of State of Jharkhand and Ors. vs. Jitendra Kumar Srivastava and Anr. [(2013) 12 SCC 210]. In the said case, the Supreme Court observed that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. It is thus hard earned benefit, which accrues to an employee and is in the nature of "property". It observed that this right to "property" cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India. It held that by mere executive order, the State had no power to withhold the pension of the retired employee.
18. Having noticed the factual and legal position, I hereby direct the respondent no.4, (the Assistant Director, Social Security Cell-cum-Child Protection Unit, Muzaffarpur) and the respondent no.6, (the Treasury Officer, Purnea) to pay the arrear of pension and current pension as also the amount of gratuity and earned leave to the petitioner within a period of two months from the date of receipt/production of a copy of the order. It would, however, be open to the State to take appropriate steps in accordance with law to proceed against the petitioner for recovery of any financial loss
12 / 12 caused to it in a civil proceeding before a court of competent jurisdiction.
19. With the aforesaid observations and direction, the writ petition is allowed.
(Ashwani Kumar Singh, J.) Sanjeet/- AFR/NAFR NAFR CAV DATE NA Uploading Date 11.08.2017 Transmission NA Date