ORAL JUDGMENT

Date : 15-01-2024 Heard Mr. Prabhu Nath Pathak, learned counsel for the petitioner and Mr. Ravi Bhardwaj, learned counsel for the State.

2. The petitioner, who superannuated on 29.02.2020 from the post of Chief Engineer (Advance Planning Wing) and In-charge Engineer-in-Chief, Road Construction Department, Bihar, Patna, has filed the present writ petition seeking quashing of the order as contained in Memo No.3278(s) dated 03.06.2020 issued by the Deputy Secretary (Management Cell), Road Construction Department, Bihar, Patna, whereby and whereunder 10% of pension and 10% of gratuity have been withheld on account of pendency of investigation of C.B.I.

relating to Bitumen attached with Road Division, Munger.

3. It is submitted on behalf of the petitioner that admittedly the petitioner superannuated on 29.02.2020 and the date on which the petitioner superannuated, there was neither any pending departmental proceeding nor judicial proceeding in relation to any criminal case against him. He further submitted that admittedly in contemplation of a departmental proceeding vide Notification No. 1240(S) dated 14.02.2020 issued by the Government of Bihar in the Department of Road Construction Department, he was put under suspension. However, that suspension has also been revoked vide Notification No. 2747 (S) dated 11.05.2020 w.e.f. 29.02.2020.

4. He further drew the attention of this Court to the impugned order as contained in Annexure-1 to the writ petition and with reference thereto, he submitted that though 10% of pension and 10% of gratuity of the petitioner have been withheld on account of ongoing investigation of C.B.I. relating to Bitumen attached with Road Division, Munger, but it is not at all concerned with the petitioner. All the more, till date neither the petitioner has been made accused in relation to any criminal case nor during the course of investigation, the complicity of the petitioner has come, leading to filing of the charge-sheet.

Further submission has been made that after coming into force of the amendment under the Bihar Pension Rules, 1950 (for short “the Rules, 1950”), especially rule 43 by incorporating rule 43(c) and rule 43(d), the department is only empower to withhold 10% of pension and the gratuity, in case the employee(s) is facing any departmental or judicial proceeding, the date on which he superannuates.

5. A counter affidavit has been filed on behalf of the respondent no.3 and submission has been made that after having found certain irregularities, which took place during the service period of the petitioner, a departmental proceeding under rule 43(b) of the Rules, 1950 has been initiated vide Notification No. 610(S) dated 28.01.2021, which is still pending consideration before the department. He further submitted that since the investigation is going on at the level of the C.B.I., thus the petitioner has been allowed 90% provisional pension and 90% provisional gratuity and the final pension/gratuity shall be subject to the final outcome of the investigation.

6. This Court has heard the learned counsel appearing on behalf of the respective parties and also perused the materials available on record.

7. Before coming to the final conclusion, it would be proper to quote rule 43(c) and rule 43(d) of the Rules, 1950, which empowers the State Authority to withhold part pension and the gratuity, which reads as follows:-

“43(c) Where the departmental proceeding or judicial proceeding, in which prosecution has been sanctioned against such servant, initiated during the service period of the government servant, is not concluded till the retirement of the government servant, the amount of provisional pension shall be less than the maximum admissible amount of pension but shall in no case be less than 90% (ninety percent).

43(d) if any departmental or judicial proceeding is pending against the govt. servant at the time of retirement, full amount of gratuity may be with held till the final conclusion of the de