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2017 Supreme(Pat) 500
IN THE HIGH COURT OF PATNA
Ashwani Kumar Singh, J.
Shashi Sinha - Appellant
Vs.
The State of Bihar and Ors. - Respondents
Civil Writ Jurisdiction Case No. 19469 of 2016
Decided On : 23-03-2017
Advocate Appeared:
For the Appellant :Indu Bhushan, Advocate
For the Respondents: Aditya Nath Jha, A.C. to S.C.-18
The main legal point established in the judgment is that the benefit of pension is a hard-earned right of a government employee and cannot be withheld without due process of law, as it is in the nature of 'property' protected under the Constitution.
Headnote:
PENSION RULES - Withholding of Pension - Rule 43 of the Pension Rules - Summary of the relevant acts and sections discussed: Rule 43(a) and 43(b) of the Pension Rules empower the State Government to withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and to recover from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found guilty of grave misconduct or causing pecuniary loss to Government. The proviso to Rule 43(b) stipulates the conditions under which departmental proceedings can be instituted. Rule 43(c) confers power upon the State Government to pay provisional pension to the Government servant where the departmental or judicial proceeding, in which the prosecution sanctioned and initiated against such servant is not concluded till his retirement.
Fact of the Case:
The petitioner sought direction for payment of death-cum-retiral benefits of her deceased husband, a retired clerk, who faced criminal prosecution but was acquitted. The respondents withheld the benefits citing the criminal case and defalcation of funds.
Finding of the Court:
The court found that the respondents' action in withholding the retiral benefits was illegal and arbitrary, and directed the respondents to pay all the death-cum-retiral benefits to the petitioner with admissible statutory interest, and full family pension to the petitioner.
Issues: The main issue was whether the respondents were justified in withholding the retiral benefits of the deceased employee due to the criminal case and alleged defalcation of funds.
Ratio Decidendi: The court held that the Pension Rules did not provide for withholding the entire pension and gratuity of the petitioner's husband under the circumstances. It emphasized that the benefit of pension is hard-earned and not a bounty, and the right to receive pension is in the nature of 'property' and cannot be taken away without due process of law.
Final Decision: The court directed the respondents to pay all the death-cum-retiral benefits to the petitioner with admissible statutory interest, and full family pension to the petitioner, within a period of three months. It also imposed a cost of rupees one lakh upon the respondent State to be paid to the petitioner within the same period.
Ashwani Kumar Singh, J.
1. The petitioner has filed the present writ application for a direction to the respondents to pay death-cum-retiral benefits of her deceased husband, who retired from service on 28.02.2010 from the post of clerk from referral Hospital, Manjhaul, District-Begusarai.
2. It is submitted by the learned counsel for the petitioner that while the petitioner's husband was in service he was made accused in Begusarai P.S. Case No. 280 of 1992 which ultimately ended in acquittal on 26.05.2015 by a court of competent jurisdiction. He submitted that no disciplinary proceeding was initiated against him while he was in service. Even after retirement no proceeding was initiated against him under the Bihar Pension Rules, 1950 (for short 'Pension Rules'). The contention is that despite having retired from service in February, 2010 and having submitted application for grant of retiral benefits, the respondents did not sanction his retiral dues. He submitted that the husband of the petitioner regularly made representation to the respondents in this regard, but no heed was paid to his repeated request for grant of pension and other retiral benefits.
3. It is submitted that since the husband of the petitioner was suffering from serious ailments, he died on 20th August, 2016 due to lack of proper treatment for want of money. It is submitted that even after death of her husband, the petitioner has not been paid the death-cum-retiral benefits so far despite representation submitted by her to the Civil Surgeon, Begusarai on 30th October, 2016.
4. A counter affidavit has been filed on behalf of respondent No. 6 Civil Surgeon-cum-Chief Medical Officer, Begusarai wherein it is contended that since the husband of the petitioner was facing criminal prosecution in Begusarai P.S. Case No. 280 of 1992 instituted under Section 409 of the Indian Penal Code for defalcation of Rs. 2,52,646/-, his retiral benefits could not be paid. It is further contended that Public Accounts Committee in its review meeting held on 21.07.2016 found that the petitioner's husband had defalcated an amount of Rs. 8,31,805/- and recommendation was made to take action for recovery of the said amount. In compliance of the said direction, an opinion was sought for from the public prosecutor, Begusari by the Civil Surgeon, Begusarai, who vide letter dated 19th July, 2016 gave his opinion for institution of another FIR for defalcation of Rs. 5,79,159/- as the earlier FIR was lodged for an amount of Rs. 2,52,646/- only and as per the opinion given by the Public Prosecutor, Begusarai P.S. Case No. 291 of 2016 was instituted under Section 409 of Indian Penal Code on 22.07.2016 against the petitioner's husband. It is further contended that payment of retiral dues after deducting Rs. 5,79,159/- is under process and the same shall be paid as soon as possible and for payment of general provident fund amount a letter has already been sent to the District Provident Officer as well.
5. On query made by the Court, learned counsel for the State fairly conceded that a criminal prosecution can not continue against a dead person. He stated that in such circumstance the criminal case would abate. He also conceded that in no circumstance the provident fund amount of an employee could have been withheld. However, he contended that in view of a criminal case being pending against the petitioner's husband, the respondents were fully justified in withholding the other pensionary benefits of the petitioner's husband during his life time.
6. In reply, learned counsel for the petitioner submitted that action of the respondents in not paying even provisional pension to the deceased employee during his life time and not releasing full family pension and other retiral benefits including arrear of full pension after his death to the petitioner is wholly illegal and arbitrary. He submitted that simply because a criminal case was instituted against the deceased employee, the respondents Stat
