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Judgment
I.A. No. 3506 of 2019
The instant Interlocutory Application has been filed under Section 5 of the Limitation Act for condoning the delay of 236 days in filing the instant appeal.
It has been stated in the instant Interlocutory Application, referring to the ground for condoning the delay, that delay in preferring the appeal is caused due to the time consumed in the procedure for getting approval of the different departments in filing the appeal.
It has been submitted by Mr. Jai Prakash, learned A.A.G., representing the appellants-State of Jharkhand that if the limitation is not condoned, the appellants-State will suffer irreparable loss and injury and further the appellants would be rendered to be remediless.
Mr. Bhanu Kumar, learned counsel for the respondents-writ petitioners has vehemently opposed the cause shown for condonation of delay in the instant Interlocutory Application by submitting that the delay may not be condoned since day to day delay has not been explained.
This Court, having heard learned counsel for the parties and considering the reasons assigned in the Interlocutory Application for condonation of delay, deem it fit and proper to condone the delay, so that the matter may be decided on merit.
In view thereof, the delay in filing the appeal is condoned.
Accordingly, I.A. No. 3506 of 2019 stands disposed of.
L.P.A. No. 166 of 2019
The instant intra-court appeal is directed against the order/judgment dated 13.06.2018 passed by the learned Single Judge of this Court in W.P. (S) No. 6662 of 2016, whereby and whereunder the order as contained in memo no. 40 dated 08.01.2016, memo no. 1188 dated 06.08.2016 and letter no. 1737 dated 10.08.2015, whereby the respondents-appellants have ordered to recover the amount of royalty and advance taken for construction of class-rooms from the amount of unutilized earned leave after retirement, have been quashed and consequently directed to release the amount in lieu of unutilized earned leave to which the petitioners-respondents are legally entitled to after superannuation from services.
The brief facts of the case, as per the pleadings made in the writ petition, which is required to be enumerated herein reads hereunder as:
According to the writ petitioners, they were working as teachers of the nationalized school situated within the district of Giridih. After retirement, they have received their post retiral dues including the amount of pension, gratuity, GPF and group insurance, however, amount in lieu of unutilized earned leave had not been disbursed, which had been withheld by the respondents on the pretext of dues of some royalty to be paid to the Government and outstanding dues by way of advance given to the petitioners for construction of class-rooms of schools.
The writ petitioners, being aggrieved with the aforesaid action of the respondents-authorities in not disbursing the amount in lieu of unutilized earned leave, has approached this Court by filing W.P. (S) No. 6662 of 2016, which has been disposed of vide order dated 13.06.2018, which is the subject matter of the present intra-court appeal.
The learned Single Judge by referring to the decision rendered by Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) & Ors reported in (2015) 4 SCC 334 quashed the impugned decisions with a direction upon the respondents to disburse the amount pertaining to leave encashment within a stipulated period of eight weeks from the date of receipt of copy of this order.
The aforesaid order of the learned Single Judge has been assailed by the respondents-State by filing the present appeal, inter alia, on the following grounds:
(i).It has been contended that the judgment rendered by Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) (supra) is not applicable in the facts and circumstances of the present case.
(ii).According to the appellants-State, even accepting that the impugned decisions have been taken without providing opportunity of being heard to the writ petitioners, the appropriate and just decision would be to remit the matter before the respondents-authorities to take a fresh decision after providing opportunity of hearing to the writ petitioners but such direction is absent in the impugned order dated 13.06.2018 passed in W.P. (S) No. 6662 of 2016 and straightway direction has been passed for payment of leave encashment, which cannot be said to be sustainable in the eye of law.
(iii).Further ground has been agitated that the petitioners admittedly have received the money in their respective accounts for the so-called construction of the class-rooms and therefore, onus lies upon the writ petitioners to explain to the authorities, the details of the expenditure and if any amount is lying with them, the same is to be refunded as because the amount is a public money.
Further, on technicality, the public money which is in the accounts of the writ petitioners cannot be allowed to be siphoned away.
Per contra, Mr. Bhanu Kumar being assisted by Ms. Bharti Kumari, learned counsel for the respondents-writ petitioners has vehemently opposed the submissions advanced on behalf of the respondents-State, inter alia on the ground that it is incorrect to say that the judgment referred by learned Single Judge, passed in the case of State of Punjab Vs. Rafiq Masih (White Washer) (supra), is not applicable in the facts of the present case, as because according to them recovery has been made from the unutilized earned leave, therefore, the amount under the head of unutilized earned leave since comes under the terminal benefit as such any recovery made from the said amount would also come under the fold of the aforesaid judgment of the Hon'ble Apex Court and, therefore, the learned Single Judge has rightly made applicable the judgment rendered by the Hon'ble Apex Court while quashing the impugned decisions taken by respondents-authorities regarding the decision of recovery from the terminal benefits.
Learned counsel for the writ petitioners further submits that during pendency of the litigation, the amount of leave encashment has already been disbursed in their favour, therefore, the instant appeal may be dismissed on that ground since the respondents have already complied the order passed by the writ Court.
It has further been contended that so far dues alleged to have been in the accounts of the writ petitioners, the State is at liberty to take decision in this regard by resorting to the provisions, which is available under law.
Upon which, learned A.A.G, appearing for the appellants-State has submitted that they are not insisting for any direction by this Court about the payment, which has already been made pertaining to encashment of unutilized earned leave but certainly since the amount has been deposited in the respective accounts of the writ petitioners for construction of class-rooms, therefore, the appellants-State at least may be allowed to ask explanation from the writ petitioners about the details of expenditure made in this regard, otherwise, public money which has been disbursed for specific purpose and not spent, the State exchequer will suffer ultimately.
This Court, having heard learned counsel for the parties and on appreciating the rival submissions advanced by the parties, is of the view that so far the disbursement of the amount pertaining to unutilized earned leave is concerned, since the learned A.A.G., representing the State of Jharkhand, has submitted at Bar, that since the amount of leave encashment has already been paid, therefore, they are now not questioning the order passed by the learned Single Judge with respect to the direction pertaining to the disbursement of the amount in favour of the writ petitioners in the head of unutilized earned leave.
This Court, therefore, is not going into the issue which has been agitated by the appellants-State with respect to applicability of judgment rendered by Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) (supra).
So far the other part of the judgment, which pertains to the details of the amounts, which has been deposited in the respective accounts of the writ petitioners, is concerned admittedly the writ petitioners have not been issued any notice prior to taking such decision.
It transpires from the pleadings made in the writ petition that violation of principles of natural justice is also one of the grounds for assailing the impugned decisions taken by the respondents-authorities with respect to recovery and non-disbursement of the amount pertaining to unutilized earned leave, is not in dispute. It cannot be disputed that if there is involvement of public money, which has been transmitted to the account of the public servant for any purpose, it is incumbent upon such public servant to furnish details about the said amount, so that the authority who has transmitted the amount will be in a position to know about actual expenditure.
This Court keeping the aforesaid facts into consideration and looking the fact that the question of public money is involved, there for is of the view that the appellants-State is required to be provided liberty to call upon the petitioners and others who are involved in expenditure of money so that a decision may be taken after providing opportunity to the concerned.
In view thereof, the competent authority is directed to issue show cause notice to the petitioners and other concerned who are involved in the expenditure of public money, in turn, the writ petitioners-respondents are directed to furnish reply within the period, as referred in the show cause. Upon receipt of such reply, the State would be further at liberty to proceed in accordance with law after perusing the reply to the show cause.
It is made clear that this Court has not exercised its mind on merit, leaving it open to the State to fasten accountability upon the persons/authority/public servant, who are concerned with the expenditure of the aforesaid money.
With the aforesaid observations, order dated 13.06.2018 is modified to the extent indicated herein above.
Accordingly, the appeal stands disposed of.
In view of the disposal of the appeal, learned counsel for the appellants did not press I.A. No. 1945 of 2019.
Accordingly, I.A. No. 1945 of 2019 stands dismissed being not pressed.