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PATNA HIGH COURT
RADHA MOHAN PRASAD, J.
Satyendra Narain Sinha @ Dr. Satyendra Narain Sinha - Petitioner
Vs.
The State of Bihar & ors. - Respondents
C.W.J.C. No. 221/99.
Decided on : 17.9.1999
PENSION - WITHHOLDING - PENDING DEPARTMENTAL OR JUDICIAL PROCEEDING - EXECUTIVE ORDER - VALIDITY - BIHAR PENSION RULES, RULES 43, 139.
Fact of the Case:
Petitioner, a retired Accounts Officer, challenged the withholding of his full pension and gratuity during the pendency of a Vigilance P.S. Case against him. The impugned orders were passed based on executive orders allowing for provisional pension payment at 90% during such proceedings.
Finding of the Court:
The court held that the executive orders relied upon by the respondents were in conflict with the statutory provisions of the Bihar Pension Rules, which vested the power to withhold or withdraw pension only upon a finding of guilt in a judicial or departmental proceeding. The court found that there was no such finding against the petitioner, and thus the withholding of his pension was arbitrary and violative of natural justice.
Issues: 1. Whether the executive orders allowing for provisional pension payment at 90% during the pendency of departmental or judicial proceedings were valid.
Ratio Decidendi: 1. The court held that the executive orders were invalid as they conflicted with the statutory provisions of the Bihar Pension Rules, which vested the power to withhold or withdraw pension only upon a finding of guilt in a judicial or departmental proceeding.
Final Decision: The court allowed the writ petition, quashed the impugned orders, and directed the respondents to release the remaining pensionary benefits of the petitioner within two weeks.
Heard leaned counsel for the parties.
2. In this writ petition the petitioner is aggrieved by govt. order dated 1.12.1996 issued by the Deputy Secretary, Water Resources (Irrigation) Department (respondent no.4) as contained in Annexure 12, whereby and whereunder during the pendency of Vigilance P.S. Case No.53 of 1990 the petitioner was held to be not entitled for full pension and gratuity and a direction has been issued for approval of pension and gratuity on provisional basis. The petitioner is also aggrieved by order dated 2.5.1997 issued by the Accounts Officer (Administration), Water Resources Department, contained in Annexure 11, whereby approval has been accorded for payment of only 90% of the amount payable towards the leave encashment.
3. The relevant facts are that the petitioner superannuated on 30.6.1995 from Water Resources Department as Accounts Officer at Jamshedpur. On 29.11.1990 F.I.R. was lodged against the Engineers and Officials with respect to purchase of goods of the Water Resources Department at higher rate. The petitioner was also made one of the accused giving rise to the aforementioned Vigilance P.S. Case No.53 of 1990. Thereafter the petitioner was taken in custody and later released on bail by this Court by order dated 7.1.1993. Vide order dated 22.2.1993 the petitioner was placed under suspension with effect from 18.12.1992 under Rule 100 of the Bihar Service Code. Thereafter the petitioner tiled a writ petition bearing C.W.J.C. No.1105 of 1995, whereafter, the order of suspension was revoked vide order dated 21.4.1995 (Annexure 6), but after inflicting certain punishment and he was posted at Jamshedpur from where he superannuated on 30.6.1995 while posted as Accounts Officer. The payment of pensionary benefits vide sanction orders as contained in Annexures 11 and 12 were passed only for 90% of the amount due.
4. The learned counsel for the petitioner has submitted that under the Bihar Pension Rules the State Government is vested with the power of withholding or withdrawing pension or any part thereof whether permanently or for specified period only if the pensioner is found guilty in judicial or departmental proceeding for misconduct for his negligence during his service period and not otherwise.
5. In the instant case the validity of the order inflicting several punishments on the petitioner, without there being any departmental proceeding was challenged by the petitioner in C.W.J.C. No. 3200 of 1995, in which this Court vide order dated 13.9.95 contained in Annexure 8, relying upon the decision of the Supreme Court in the case of Kulwant Singh Vs. State of Punjab reported in 1991 Suppl. (1) S.C.C.504, quashed the said order of punishment and allowed tile writ petition. This Court further directed that since the petitioner had already superannuated no purpose would be served in remanding the case to the respondent-authority. Thus according to the learned counsel for the petitioner there is no finding whatsoever either in departmental proceeding or for judicial proceeding against the petitioner in which he has been held guilty for misconduct or being negligent so for. It is thus submitted that under such circumstance the orders withholding the pensionery benefits of the petitioner contained in Annexures 11 and 12 cannot be sustained. In support of his contention the learned counsel for the petitioner has placed reliance upon the decision of the Division Bench of this Court in the case of Bajrangdeo Narain Sinha vs. State of Bihar & others in L.P.A. No. 124 of 1999 disposed of on 26.8.99 [1999(3) PLJR 949].
6. The learned Additional Advocate General No.3, appearing for the respondent-State has tried to defend the impugned orders on the basis of the Circular of the Finance Department contained in Memo No. C-11- 4028/74/9144-F, dated 2.8.74 read with Finance Department's Memo No. PC-11-40-98/74/11216-F., dated 31.10.74 and Finance Department's Resolution No.3014 dated 31.7.80, in which a provision
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