Bihar State Power Holding Company Ltd. And ORS v. Daya Nand Ojha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1462 of 2016 IN Civil Writ Jurisdiction Case No. 2064 of 2015 ==========================================================
1. Bihar State Power Holding Company Ltd Bailey Road, Patna through the Chairman-cum-Managing Director.
2. The Chairman-cum-managing Director, Bihar State Power Holding Company Ltd., Bailey Road, Patna.
3. The Joint Secretary, Bihar State Power Holding Company Ltd., Bailey Road, Patna.
4. The Finance Controller, Bihar State Power Holding Company Ltd., Bailey Road, Patna.
5. The Chief Engineer (Project and Design), Bihar State Power Holding Company Ltd., Bailey Road, Patna.
6. The Senior Manager (Finance and Account), Head Quarter, Bihar State Power Holding Company Ltd., Bailey Road, Patna.
7. The Accounts Officer, Bihar State Power Holding Company Ltd., Bailey Road, Patna.
.... .... Appellants
Versus
Daya Nand Ojha Son of Late Jagarnath Ojha Resident of Flat No-101, Chandra Kutir Apartmnt, Sita Ram Path, West Patel Nagar, P.O - and P.S Shastri Nagar, Town and District -Patna the retird Assistant Executive Engineer, Project and Design Department, Bihar State power Holding Company Ltd., Patna.
.... .... Respondent ========================================================== Appearance :
For the Appellants :
Mr. Vinay Kirti Singh, Sr. Advocate Mr. Akhileshwar Singh, Advocate Mr. Vijay Kr. Verma, Advocate For the Respondent:
Mr. Dineshwar Mishra, Advocate Mr. Surendra Mishra, Advocate ========================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI And HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI) Date: 05-12-2017
Patna High Court LPA No.1462 of 2016 dt.05-12-2017 Heard learned senior counsel for the appellants and learned counsel for the private respondent. Submission of learned senior counsel is that the learned Single Judge has committed an error of law by allowing 100% pension and gratuity by going into the principle of law relating to pension laid down in the case of D.S. Nakara & Ors. vs. Union of India reported in 1983 (1) SCC 305 and Deokinandan Prasad vs. The State of Bihar and Ors. reported in 1971 (2) SCC 330.
What has been missed out by learned Single Judge is that under Rule 43 of the Bihar Pension Rules an amended provision i.e. sub-rule (c) has been added which authorizes the authority to withhold pension and gratuity in a case where a departmental proceeding or a criminal proceeding is pending against an employee.
In the present case, criminal case has been instituted by the C.B.I. for which charge-sheet has also been filed and the present private respondent is an accused. In this background, 90% provisional pension and 90% provisional gratuity has been authorized in favour of the private
Patna High Court LPA No.1462 of 2016 dt.05-12-2017 respondent.
The decision of the appellants to authorize 90% pension and gratuity is in order. The order of learned Single Judge to release 100% pension and gratuity is erroneous in law keeping in mind the decision rendered in the case of Vijay Kumar Mishra vs. The State of Bihar and Others reported in 2017(1) PLJR 575.
This appeal is allowed. The impugned order dated 11.05.2016 passed by learned Single Judge is set aside. Before parting, learned counsel for the private respondent submits that the leave encashment has also not been released and paid, if it is so, then the appellants are directed to ensure that the leave encashment is authorized and paid to the private respondent preferably within a period of three months from the date of production of a copy of this order.
(Ajay Kumar Tripathi, J.) (Rajeev Ranjan Prasad, J.) Rajeev/- AFR/NAFR NAFR CAV DATE NA Uploading Date 07.12.2017 Transmission Date NA