ORAL JUDGMENT

(Per: HONOURABLE THE ACTING CHIEF JUSTICE)

Date : 17-03-2025 Heard Mr. Vivek Prasad, the learned Advocate for the State/appellants and Mr. Rajendra Narain, the learned Senior Advocate for the respondent.

2. After the conviction of the respondent in the year 2017, his pension was withheld, leading to the present litigation.

3. The short facts necessary for deciding this appeal is that the respondent served as an Assistant Commissioner of Commercial Taxes, who superannuated on 30.09.2014. However, during the tenure of his service, a criminal case was instituted against him and others vide R.C. Case No. 64A of 1996 for the offences under Sections 120B read with Sections 420, 467, 468, 477A of the I.P.C and Sections 13(1)(c)(d) of the Prevention of Corruption Act, 1988.

4. The trial continued after the retirement of the respondent, on completion of which he was convicted vide judgment dated 23.12.2017.

5. The respondent, before his conviction and after his retirement, was getting 90 % pension in accordance with the provisions contained in Rule 43(b) of the Bihar Pension Rules, 1950.

6. Immediately after his conviction, the payment of pension was stopped, taking recourse to the provisions contained in Rule 43(a) of the Bihar Pension Rules, 1950, which reads as follows :

(a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this Rule, shall be final and conclusive.

7. The respondent / petitioner challenged the aforenoted decision of the appellant / respondent vide CWJC No. 4614 of 2020 on the ground that Rule 43(a) of the Bihar Pension Rules, 1950 would not relate to the conduct of the person during service and/or service.

8. In Nityanand Kumar Singh Vs. State of Bihar; 2016(2) PLJR 315 (DB), it was held that it is a conduct expected of a pensioner in future after he is granted pension which falls for desideratum while invoking the provision under Rule 43(a).

9. The decision under Rule 43(a) cannot be taken on account of any departmental proceeding or a judicial proceeding instituted while the Government servant was in service or instituted later in respect of an event which related to the service rendered before retirement or on re-employment.

10. The contention was challenged by the State, taking the plea that the respondent had retired from service on 30.09.2014 and no departmental proceeding had been initiated under Rule 43(b) of the Bihar Pension Rules but a criminal case was pending against him in which he was convicted and sentenced to undergo imprisonment for three and half years and to pay a fine of Rs. 5,00,000/-.

11. The learned Single Judge vide his judgment dated 24.09.2020 passed in C.W.J.C No. 4614 of 2020, referred to above, set aside the order of the appellants/State in withholding the entire pension of the respondent.

12. Shortly, thereafter, Rule 43(b) of the Bihar Pension Rules, 1950 was invoked and 15 days notice was given to the respondent for responding. A final order, thereafter, was passed against the respondent on 20.07.2021 contained in Memo No. Con/v- 121/2003/58/C-Patna, withholding the full pension and gratuity of the respondent.

13. This was challenged by the respondent again before this Court vide CWJC No. 7243 of 2021.

14. A learned Single Judge of this Court vide his judgment dated 18.07.2024 found that only after the decision of the respondents under Rule 43(a) did not find favour with the Court, a proceeding was initiated under Rule 43(b) of the Bihar Pension Rules, 1950 without any sanction of the State. The order of withholding of pension and gratuity was set aside.

15. According to the learned Single Judge, sanction of any proceeding, be it departmental or