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IN THE HIGH COURT OF JUDICATURE AT PATNA
Rajeev Ranjan Prasad, J.
Aquil Ahmad - Appellant
Versus
State of Bihar - Respondent
Civil Writ Jurisdiction Case No. 11974 of 2019
Decided On : 01-10-2020
Bihar Pension Rules, 1950 – Rules 27 and 43(d) – Payment of Gratuity Act, 1972 – Sections 4 and 7 – Withholding of amount of gratuity – Withholding/forfeiture of gratuity should be strictly within prescribed limit of Section 4(6) of Act of 1972 – Provisions which are brought by way of an amendment which will have an effect of depriving a person from getting his vested rights and taking away benefits such as post retiral dues cannot be given a retrospective effect unless it is so provided specifically in Statute/Rule or by necessary intendment – Pension includes gratuity and retired employee would be entitled to get gratuity in similar manner to the extent of 90% as is provided with respect to payment of provisional pension – While bringing amendment in Rule 27 and inserting a new provision in form of sub-rule (d) in Rule 43 there is no indication at all that there was any intention of rule making authority to touch upon vested rights of employee such as petitioner and it cannot be readily inserted in absence of any such provision that rule making authority had any intention to take away vested rights of petitioner – Respondents cannot apply those provisions with a retrospective effect so as to take away vested right of petitioner to receive his gratuity amount – There cannot be a retrospective application of amended Rule 27 and newly inserted Rule 43(d) in Pension Rules as that would be violative of Article 14, 16 and 311 of Constitution of India – Respondents directed to pay gratuity amount due to petitioner with statutory interest. (Paras 16, 22, 27, 32, 37 and 38)
Interpretation of Statute – In absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have effect of altering law applicable to a claim in litigation at the time when the Act was passed – Any judgment of this Court cannot be negated by bringing a legislation much less by way of a rule framed under Article 309 of Constitution by applying the same with retrospective effect – Such amendment will only be prospective in nature. (Paras 30 and 33)
JUDGMENT
Rajeev Ranjan Prasad, J. - Heard learned counsel for the petitioner and learned AAG-IX for the State.
2. Mr. S.D. Yadav, learned AAG-IX has submitted that only yesterday an affidavit has been filed on behalf of the General Administration Department, Government of Bihar and a plea has been taken therein that there is no resolution of the General Administration Department whereby the 90% gratuity amount may be released in the cases where the departmental proceeding is still pending under the Bihar Pension Rules.
3. Pleadings are complete.
4. In this case, petitioner has moved this Court seeking a writ in the nature of a writ of mandamus commanding the respondent authorities to fix the pension of the petitioner after releasing the post-retiral benefits. The petitioner has superannuated from service on 31.07.2017 while working as an Incharge Medical Officer, Primary Health Service, Piprahi, Sheohar, Bihar.
5. It is the case of the petitioner that he has been paid the GPF amount vide Annexure-2 to the writ application and Incharge Medical Officer, Primary Health Center, Piprahi, Civil Surgeon-cum-Chief Medical Officer, Sheohar has already sent the pension application of the petitioner to the Principal Secretary, Department of Health, Government of Bihar vide letter dated 372 dated 05.05.2018 as contained in Annexure-3 to the writ application, but the pension was not fixed by the Principal Secretary and the post-retrial benefits of the petitioner has not been released save and except the General Provident Fund (GPF) amount and group insurance amount.
6. It is his further submission that he represented before the Director-in-Chief, Health Services, Government of Bihar, Patna on 24.04.2019 and in this connection Annexure-4 and 5 to the writ application is brought on record.
7. In the counter affidavit filed on behalf of the Principal Secretary, Department of Health, Government of Bihar a stand has been taken that after this Court passed the order on 16.06.2020 calling upon the Principal Secretary to explain the delay in not processing the pension papers of the petitioner, the Principal Secretary after having knowledge about the order took the following steps:-
(a) Vide Departmental Letter no.728(2) dated 08.07.2020 90% pension of the petitioner has been sanctioned and 10% pension has been kept in abeyance due to pendency of departmental proceeding already initiated against him vide memo no.905(9) dated 10.08.2006.
(b) Vide Departmental Letter no.727(2) dated 08.07.2020 necessary sanction order has also been issued for making payment of unutilized earned leave amount equivalent to 300 days.
(c) For colossal delay in processing the file of the petitioner erring officials have been identified and necessary explanations have been sought from them.
8. As regards the gratuity amount, it is stated that in the light of the notification of the Finance Department, Government of Bihar issued vide memo no.77 dated 21.01.2019 the gratuity of the petitioner has been kept in abeyance due to pendency of the departmental proceeding. In this connection reference has been made to the memo no.77 dated 21.01.2019 as contained in Annexure-A to the supplementary counter affidavit filed on behalf of the State-respondents.
9. In this case matter was adjourned earlier on the request of learned AAG-9 and this Court passed the order dated 07.09.2020 which is extracted hereunder for a ready reference:-
"A counter affidavit has been filed on behalf of the State. Mr. S.D. Yadav, learned counsel representing the State submits that the gratuity of the petitioner has not been paid in view of the amendment brought in the Bihar Pension Rules by which rule 43(c) has been inserted whereunder during pendency of a department proceeding the entire gratuity amount may be withheld.
In this case, the departmental proceeding against the petitioner is said to have been initiated in the year 2006 i.e. about 14 years back, in the affidavit though stand has been taken that g
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