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2017 Supreme(Pat) 614
IN THE HIGH COURT OF PATNA
ASHWANI KUMAR SINGH, J.
Arvind Kumar Singh – Appellant
Versus
The State of Bihar and Ors. – Respondent
CWJC No. 15328 of 2016
Decided On : 16-05-2017
For the Appellant : S.B.K. Mangalam.
For the Respondent: Prashant Pratap.
The main legal point established in the judgment is the need for a Larger Bench to decide on the correct interpretation of Rule 43(c) of the Bihar Pension Rules and the permissibility of withholding retirement benefits when a departmental or judicial proceeding is pending against a government servant after retirement.
Headnote:
Pension Rules - Retirement Benefits - Rule 43(c) of the Bihar Pension Rules - Summary
Fact of the Case:
The petitioner, a retired government servant, sought payment of retirement benefits including full pension, gratuity, and leave encashment. The petitioner was placed under suspension due to a pending criminal case and departmental proceeding. The petitioner contended that his retirement benefits should not be withheld based on the provisions of the Bihar Pension Rules and relevant case law.
Finding of the Court:
The court found that the issue of withholding retirement benefits when a departmental or judicial proceeding is pending against a government servant after retirement was of extreme importance. The court noted conflicting decisions by different benches and referred the matter to a Larger Bench for decision.
Issues: The issues included the correct interpretation of Rule 43(c) of the Bihar Pension Rules and whether the withholding of gratuity and leave encashment was permissible under the law.
Ratio Decidendi: The court held that the conflicting decisions and the importance of the issue warranted a reference to a Larger Bench for decision.
Final Decision: The court referred the matter to a Larger Bench for decision and formulated specific questions for consideration.
ASHWANI KUMAR SINGH, J.
1. The petitioner seeks following reliefs in the present writ application:--
"(I) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities for payment of retirement benefits of the petitioner under the following heads:--
(a) For payment of full pension to the petitioner in view of the provisions contained under Rule 156(2) of the Bihar Pension Rules on the deduction of account of provisional pension already paid to the petitioner on the ground that if Bihar Pension Rules provides for payment of pension to a retired employees on the basis of his last salary drawn on the date of retirement had he not been placed under suspension;
(b) Gratuity;
(c) Leave encashment;
(II) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities for payment of the aforesaid amount to the petitioner with interest on the ground that despite the provisions contained under the Bihar Pension Rules and the judgment of the Hon'ble Supreme Court in the case of State of Jharkhand and Others v. Jitendra Kumar Srivastava and Others, the Respondent Authorities have not reimbursed the aforesaid amount to the petitioner till date.
(III) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be found entitled under (sic) facts and circumstances of the case."
The brief facts of the case are that the petitioner was initially appointed as an Assistant Engineer in the then Public Works Department in the year 1980. While he was posted as Superintending Engineer in the Rural Works Department, Works Circle-Siwan, a raid was conducted on 22.8.2013 in the premises of the petitioner and pursuant thereto Vigilance P.S. Case No. 50 of 2013 dated 22.8.2013 was registered against him for the offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, which is pending before the Vigilance Court.
2. In view of the fact that the petitioner being a public servant was found in possession of property disproportionate to his known sources of income, he was put under suspension vide notification dated 18.2.2014 issued by the State Government in exercise of its power conferred under Rule 9(1)(c) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005.
3. Thereafter, the State Government decided to hold departmental proceeding against the petitioner. The petitioner was also served with a copy of the charge-sheet dated 10.2.2014. However, before the departmental proceeding could conclude, the petitioner superannuated from service on 31.5.2015. After superannuation, he submitted his pension papers to the respondent authorities for payment of his retirement benefits.
4. It is submitted by the learned counsel for the petitioner that after superannuation though the petitioner has been paid 90% provisional pension and provident fund amount, the balance 10% pension, full gratuity and the admissible leave encashment have not been paid to him so far. He contended that pendency of criminal case or departmental proceeding cannot be a ground to deprive the retired employee from getting his 90% gratuity and full leave encashment in terms with Rules 43(b) and (c) of the Bihar Pension Rules, 1950 (for short "Pension Rules"). He submitted that in the matter of State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Ors. (2013)12 SCC 210 : [2013(3) PLJR (SC) 458], the Supreme Court has held that unless a finding of guilt is recorded against a Government servant, his pensionary benefits cannot be reduced. He contended that Rule 43(b) of the Pension Rules, which confers power upon the State to withheld or withdraw pension or any part of it whether permanently or for specified period, can be exercised only after the concerned Government servant is found guilty in departmental or judicial proceeding. In this regard he has placed relianc
