IMPORTANT POINTS
Right to receive pension of a public servant being covered under "right to property" protected under Article 300A even after the repeal of Article 31(1).
Circulars and Government resolution merely being administrative decisions do not have force of law.
Before 2012 pension could not be withheld under Bihar Pension Rules but after 2012 by insertion of section 43(c), 10% pension can be withheld.

JUDGMENT:

Indu Malhotra, J.

Delay condoned. Leave granted.

1. The short issue which arises for consideration is whether the State of Bihar was justified in withholding 10% pension and full gratuity of the Appellant under Circulars dated 22.08.1974 and 31.10.194, and Government Resolution dated 31.07.1980, on the ground of pending criminal proceedings?

2. The Appellant was appointed to the post of Touring Veterinary Officer (TVO) at Pawana, Bihar by the Respondent-State. While the Appellant was in active service, he was made an accused in the Fodder Scam lodged by the CBI in RC Case No. 48A/1996 wherein a Charge-Sheet was filed against him on 21.11.2003. The Special Judge, CBI, Animal Husbandry took cognizance in the criminal case. The Appellant was placed under suspension on 31.05.2002 under Rule 49(a) of the Civil Services (Classification, Control & Appeal) Rules, 1930, which were in force prior to the enforcement of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005. The Appellant continued to remain under suspension till he attained the age of superannuation on 31.03.2008.

3. On attaining the age of superannuation, the State Government vide Order dated 17.09.2008 sanctioned payment of 90% of the provisional pension of the Appellant, and withheld 10% of the pension, entire gratuity, leave encashment and GPF on account of pending criminal proceedings.

4. Aggrieved by the action of withholding 10% pension and other retiral benefits, the Appellant filed a Writ Petition before the Patna High Court praying for a writ of mandamus directing the Respondents to pay full pension, gratuity, leave encashment, and General Provident Fund along with interest.

5. The Appellant inter alia contended that the Bihar Pension Rules, 1950 do not prohibit payment of full pension and gratuity to a retired Government servant against whom criminal proceedings were pending. Rule 43(b) of the Bihar Pension Rules is not applicable, until the delinquent employee is found to be guilty of grave misconduct in a departmental or judicial proceedings or to have caused pecuniary loss to the Government by misconduct or negligence. Consequently, Rule 43(b) would not be applicable during the pendency of criminal proceedings. Reliance was placed on the judgment of this Court in State of Jharkhand and Ors. vs. Jitendra Kumar Srivastava and Ors., (2013) 12 SCC 210, wherein it has been that Rule 43(b) does not permit withholding of pension and gratuity when departmental or judicial proceedings are still pending. It was further contended the Government Resolution dated 31.07.1980, being an executive instruction had no force of law, and could not take away the right to receive pension, which is recognised as a constitutional right under Article 300A of the Constitution.

6. The State of Bihar filed its Counter-Affidavit stating that a sum of Rs. 12,78,711/- towards G.P.F and Rs. 1,35,256/-towards leave encashment had since been paid to the Appellant on 15.01.2009 and 03.02.2009 respectively. The State justified its stand on the basis of Circulars dated 22.08.1974 and 31.10.1974 issued by the Finance Department read with Government Resolution dated 31.07.1980, which lays down that if a government servant retires while under suspension, he will not be entitled to payment of full pension and gratuity, and at best, would be entitled to payment of 90% of the provisional pension till the conclusion of the departmental or judicial proceedings. It further provided that no gratuity or death-cum-retirement gratuity would be payable until the conclusion of the said proceedings, and the issuance of final orders thereon.

7. The issue which remained for consideration was with respect to withholding payment of 10% of the pension and full amount of gratuity.

8. The learned Single Judge of the High Court dismissed the Writ Petition vide Judgment & Order dated 23.01.2013 holding that the claim of full pension and gratuity until conclusion of the criminal proceedings was unte