Lakshmi Kant Patel Vs. The State of Bihar and Ors. - (High Court of Patna) (17 Dec 2018)

When no order of punishment had been imposed, gratuity by way of punishment cannot be withheld

MANU/BH/2428/2018

Service

The present appeal has been preferred against the order, whereby the learned single Judge has declined to pass an order for payment of full gratuity with interest to the Appellant only on the ground of pendency of a criminal case involving disproportionate assets, though in the departmental proceeding the allegation against the Petitioner has not been substantially proved and an order to deduct 10% of pension amount payable to the petitioner has already been passed.

The Petitioner has already been given the punishment of withholding of 10% of pension in the departmental enquiry, which was concluded against the petitioner, vide departmental Enquiry. In the departmental enquiry, charges against the Petitioner of disproportionate income was not established, barring the possession of a Mahindra SUV vehicle, which was omitted to be shown in the return filed by the Petitioner. Thus, even though the charges were not fully established against the Petitioner, he was given the punishment of withholding of 10% of pension under Rule 139 of the Bihar Pension Rules, vide notification contained in Memo No. 9638(S) dated 29th November, 2016 and against such punishment order, the Petitioner has already represented. The learned single Judge has clearly erred in declining the prayer of the Petitioner for payment of gratuity.

Moreover, since there is no question of defalcation of any amount or expected recovery of any amount from the Petitioner, in such circumstances, in the considered opinion of this Court, no amount against the gratuity payable to the Petitioner can be withheld. Furthermore, the criminal proceeding without any charge sheet cannot raise any presumption at this stage that there was enough material against the Petitioner for taking cognizance of the offence, as alleged. Moreover, there is no finding in the departmental proceedings against the Petitioner of having defalcated any amount from the State exchequer or having caused any pecuniary loss to the State.

In view of Rules, particularly Rule 43(b) of the Bihar Pension Rules, Court find that the crux of the Government circular is that whenever there is an expected recovery, those amounts can be withheld awaiting the outcome of the criminal proceedings or the departmental proceedings. In the instant case, there is no finding of guilt by the departmental enquiry officer against the Petitioner, save and except that he had purchased a vehicle on getting loan, which he had failed to disclose in his assets for which the petitioner has suffered withholding of 10% of the pension amount and thus, in the above background, there appears to be no justification to withhold gratuity as well.

The order of the learned single Judge, so far as it relates to the withholding of the gratuity, cannot be upheld and is, accordingly, set aside to the said extent. The amount of gratuity payable to the Petitioner is directed to be released forthwith along with interest payable on the same from the date the said amount became payable to the date of payment. The appeal is accordingly allowed.

Tags : GRATUITY PAYMENT DIRECTION