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 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.
The court while allowing the petition observed that “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.” Further, held that “the respondent State of Jharkhand is directed to release the entire pension and gratuity, 10% of pension and gratuity so withheld within twelve weeks.”
