1 [W.P.(S) No.

993 of 2019]

IN THE HIGH COURT OF JHARKHAND, RANCHI

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W.P.(S) No. 993 of 2019
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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)
….. Petitioner
-- Versus --

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
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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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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
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11/15.02.2021 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].

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

 2 [W.P.(S) No. 993 of 2019]

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.

3. 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.

4. 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.

5. 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.

6. 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
 3 [W.P.(S) No. 993 of 2019]

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.

7. 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.

8. 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.

9. 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.6607 of 2002 whereby

 4 [W.P.(S) No. 993 of 2019]

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’ (2013) 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:
 5 [W.P.(S) No. 993 of 2019]

“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.”

10. 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.

11. The respondent State of Jharkhand is directed to release

the entire pension and gratuity, 10% of pension and gratuity so withheld

within twelve weeks.

12. 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.

( Sanjay Kumar Dwivedi, J)

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