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IN THE HIGH COURT OF JUDICATURE AT PATNA
PRABHAT KUMAR JHA, J.
Chandra Shekhar Prasad - Appellant
Versus
The State of Bihar and Others - Respondents
Civil Writ Jurisdiction Case No. 22973 of 2019
Decided On : 12-04-2021
Bihar Pension Rules, 1950 – Rules 43(b) and 139 – Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 – Rules 14 and 17 – Withholding of 10% pension – Petitioner was not inflicted any punishment during his service tenure although a departmental proceeding was initiated against petitioner, but there is nothing on record to show that same departmental proceeding continued even after retirement of petitioner under Rule 43(b) of Bihar Pension Rules, 1950 – If petitioner would have been inflicted any major punishment such as dismissal or reduction in rank, stoppage of increments with cumulative effect that would have affected payment of pension or less payment of pension to petitioner but petitioner was never punished during his service in accordance with law – Respondent has not stated about result of departmental proceeding even after retirement of petitioner and pension of petitioner cannot be stopped under Section 43(b) as none of conditions mentioned in Section 43 of Bihar Pension Rules is fulfilled – Government reserve its right for reduction in amount of pension, if it thinks proper after perusing service record of petitioner – If service record of an employee is found unsatisfactory only then authority can pass order reducing pension of petitioner but there is a condition that employee has not rendered satisfactory service only then pension of such employee can be reduced – Petitioner was not even inflicted any minor punishments on any action. (Paras 10, 11, 13 and 15)
Bihar Pension Rules, 1950 – Rules 43(b) and 139 – Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 – Rules 14 and 17 – Withholding of 10% pension – Mere institution of FIR and initiation of departmental proceeding cannot be a condition for reducing any amount of pension of a government servant – Employer of government or pension sanctioning authority is vested with power to reduce amount of admissible pension of an employee, if his service record is found unsatisfactory but since no adverse entry is made in service record of petitioner during his entire service tenure – Rule 139 does not bestow unbridled/unfettered power or pension sanctioning authority of any employee to withhold or reduce any amount of pension from admissible amount of pension to an employee on such vague and speculative that such employee had not rendered satisfactory Services – Impugned order is palpably illegal and not sustainable in eye of law – Gratuity and unutilized earned leave cannot be withheld on the ground that since 10% pension of petitioner has been reduced under Rule 139(b) of Pension Rules – No order can be passed with regard to payment of gratuity and unutilized earned leave encashment till pendency of criminal case – Right to pension cannot be taken away by a mere executive fiat or administrative instruction – Pension and gratuity are not mere bounties, or given out of generosity by employer – An employee earns these benefits by virtue of his long, continuous, faithful and un-blemished service – Right to receive pension of a public servant has been held to be covered under "right to property" under Article 31(1) of Constitution – Impugned order set aside and matter remitted to Principal Secretary, General Administration Department, Government of Bihar, to pass a fresh order. (Paras 15 to 19)
JUDGMENT :
1. Heard Mr. S.B.K. Mangalam, the learned counsel for the petitioner, Mr. Sheo Shankar Prasad, the learned S.C.8, and Mr. Binod Kumar Labh, the learned counsel appearing on behalf of the Accountant General.
2. The petitioner has moved this Court for the following reliefs:-
(ii) For issuance of an appropriate writ in the nature of certiorari for quashing the resolution as contained in Memo No.12081, dated 22.07.2013 whereby the respondent authorities were pleased to withhold 10% pension of the petitioner for his unsatisfactory service under Rule 139 of the Pension Rules but without holding any departmental proceeding in terms of Rule 43(b) of the Bihar Pension Rules.
(iii) For issuance of an appropriate writ in the nature of mandamus commanding and directing the respondent authorities for payment of leave encashment, gratuity for which the petitioner was entitled on the date of his retirement.
(iv) For issuance of an appropriate writ in the nature of mandamus commanding and directing the respondent authorities for payment of aforesaid amount of the petitioner with statutory as well as pendent elite interest on the ground that if the delay in payment is directly and solely attributable to the respondents, the petitioner is entitled to receive the aforesaid payments with interest.
(v) For issuance of any other writ/writs, order/orders, direction/directions for which the writ petitioner would be found entitled under the facts and circumstances of the case.
3. The facts relevant for disposal of the writ petition are that the petitioner was appointed as the Deputy Collector in pursuance of the recommendation of Bihar Public Service Commission and he joined as Deputy Collector on 19.03.1983. When the petitioner was posted as Sub-divisional Officer, Gogri, the Special District Magistrate vide Letter No. 1162, dated 21.09.2007 addressed to the Chief Secretary recommended for taking disciplinary action against the petitioner on different grounds of negligence in arrangements of boats and non-distribution of food grains amongst the flood victims. The petitioner was called upon to show cause vide Letter No.706, dated 27.06.2008 along with the memo of charges issued under the signature of District Magistrate, Khagaria, Annexure-P-2 and P-2/1. The petitioner responded to the charge sheet and submitted his reply vide Letter No. 1705, dated 25.08.2008 (Annexure-P-3).The petitioner continued to serve and he retired on 30.09.2010 as Additional District Magistrate at Lakhisarai. Vigilance Case No.115 of 2009 was registered under different sections of the Indian Penal Code and the Prevention of Corruption Act on 09.11.2009, but no departmental proceeding was initiated. Charges were levelled for purchase of cement against the District Magistrate, Banka and petitioner was also posted as Deputy Collector, Banka and he was also made accused in the case that cement was purchased without constituting a purchase committee. Petitioner retired from his service on 30.09.2010 and he was persuading for payment of his retiral dues but the respondent called upon the petitioner vide Letter No.6809, dated 14.05.2012 (Annexure-P-4) to file his reply to the charges made against him while he was posted as Sub-divisional Officer, Gogri. The petitioner submitted his show cause vide his Letter No.51, dated 06.06.2012 (Annexure-P-5). The respondent after considering the show-cause of the petitioner resolved vide resolution as contained in 12081, dated 22.07.2013 for withholding 10% pension of the petitioner (Annexure
Pension is a right of an employee and cannot be withheld without a proper inquiry and findings of misconduct; mere allegations or pending criminal cases are insufficient grounds for such action.
The decision to withhold a pension under Rule 43(a) of the Pension Rule should be based on future conduct, and if based on past conduct, Rule 43(b) should be invoked instead.
The main legal point established in the judgment is that the authorities have no power to withhold gratuity and pension even during the pendency of disciplinary/judicial proceedings if the government....
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