Patna High Court - Orders
The State Of Bihar & Ors vs Ram Suresh Tiwary & Anr on 11 September, 2014
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.837 of 2012
In
Civil Writ Jurisdiction Case No. 18001 of 2010
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1. The State of Bihar through The Principal Secretary, Road Construction
Department, Vishwesharaiya Bhawan Distt- Patna.
2.The Additional Secretary, Road Construction Department,
Vishwesharaiya Bhawan, Distt- Patna.
3. The Joint Secretary, Road Construction Department, Vishwesharaiya
Bhawan, Distt- Patna.
.... .... Respondents-Appellants
Versus
1. Ram Suresh Tiwary S/O Late Muneshwar Tiwary, resident of Civil
Lines, Sasaram, Police Station- Sasaram, Distt- Rohtas.
... ... Petitioner-Respondent
2. The Accountant General (A & E), Virchand Patel Path, Patna.
.... .... Respondent- Respondents
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Appearance :
For the Appellant/s : Mr. P K Verma, AAG V
Mr. Nand Kumar Singh, AC to AAG V
For the Respondent no 1. : Mr. Rupak Kumar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
5 11-09-2014This Appeal under clause 10 of the Letters Patent has been preferred by the respondent-State of Bihar against the order dated 3rd May 2011 made by the learned Single Judge in CWJC No. 18001 of 2010.
The respondent-writ petitioner is a former employee Patna High Court LPA No.837 of 2012 (5) dt.11-09-2014 2/7 of the State of Bihar, an Assistant Engineer, retired from service on 31st July 2008. As early as in 1993, the writ petitioner was found guilty of amassing wealth beyond his known sources of income over a period from 1973 to 1993. An investigation was made in respect of the assets owned by the writ petitioner and a criminal case being Special Case No. 45 of 1993 was lodged against the petitioner in the court of Special Judge, Vigilance I, Patna. The trial court has, under its judgment and order dated 29th June 2009, convicted the writ petitioner for offence punishable under Sections 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988. For the said offence proved against the petitioner, he has been sentenced with punishment of rigorous imprisonment for three years and a fine of Rs.10,000/-. Feeling aggrieved by the order of conviction and sentence, the writ petitioner has preferred Criminal Appeal No. 536 of 2009 before this Court. Pending the said Appeal, the petitioner has been released on bail. Pursuant to his conviction in the criminal case, on 1st June 2010 the Government of Bihar issued a notice upon the petitioner to show cause why action pursuant to his conviction as per the Circular dated 27th March 2009 be not taken against the petitioner. After receipt of his reply, under Notification dated 30th August 2010, the pension sanctioned to the petitioner has been withheld.
Feeling aggrieved, the petitioner has approached this Court under Article 226 of the Constitution in above CWJC No. 18001 of 2010. The Petition was contested by the State Government. The learned Single Judge has taken note of the Criminal Appeal preferred by the writ petitioner and has held withholding of the entire pension pending the Appeal is not justified. The learned Single Judge has directed to release 75% of Patna High Court LPA No.837 of 2012 (5) dt.11-09-2014 3/7 the pension pending the Criminal Appeal on condition that the petitioner shall give undertaking not to dispose of the house property pending the Criminal Appeal. Therefore, this Appeal.
Learned Additional Advocate General Mr. P K Verma has appeared for the appellant-State of Bihar. He has assailed the judgment of the learned Single Judge. He has submitted that the State Government is empowered under Rule 43 of the Bihar Pension Rules, 1950 to withhold the pension of a retired Government servant if he is found guilty, inter alia, in a judicial proceeding. In the present case, the writ petitioner has been found guilty and is punished under the Prevention of Corruption Act, 1988. The State Government is, therefore, justified in withholding the entire pension of the writ petitioner. In support of his submission, he has relied upon the judgment of this Court in the matter of Dr. Bajrang Deo Narain Sinha vs. State of Bihar [2013(2) PLJR 521].
Learned advocate Mr. Rupak Kumar has appeared for the respondent-writ petitioner. He has contested the Appeal. Mr. Rupak Kumar has submitted that the impugned order of withholding of pension has been made by the State Government pursuant to certain instructions issued by the Vigilance Department. He has submitted that Rule 43 of the Pension Rules contemplates initiation of disciplinary proceeding after retirement of a Government servant. In the instant case, the State Government has not initiated any proceeding against the writ petitioner and has solely relied upon the instruction issued by the Vigilance Department contrary to Rule 43 of the Pension Rules. He has submitted that the instruction issued by the Vigilance Department amounts to amendment to Rule 43 of the Pension Patna High Court LPA No.837 of 2012 (5) dt.11-09-2014 4/7 Rules. The Pension Rules which are framed under Article 309 of the Constitution of India cannot be amended by a mere instruction. A departmental instruction cannot prevail over the statutory provision. In support thereof, he has relied upon the judgments of the Hon‟ble Supreme Court in the matter of Ajaya Kumar Das vs. State of Orissa [2010 (1) PLJR (SC) 28]. He has also relied upon the judgments of the Hon‟ble Supreme Court in the matters of Rameshwar Yadav vs. Union of India & Another [1989 Supp (2) SCC 565] and of State of Jharkhand & Ors. Vs Jitendra Kumar Srivastava & Another [2013 (3) PLJR (SC) 458 = (2013) 12 SCC 210].
We entirely agree with Mr. Rupak Kumar in proposition that a statutory rule cannot be amended by an executive instruction. We also agree that the statutory rule shall prevail over the executive instruction.
We are, however, unable to agree with Mr. Rupak Kumar that the action of the State Government in withholding the pension of the writ petitioner is contrary to the aforesaid Rule 43 of the Pension Rules, and the order has been made pursuant to the instruction dated 27th March 2009 issued by the Vigilance Department. Under the above referred letter dated 27th March 2009 addressed to the State Government, the Vigilance Department has indicated that in case of conviction under the Prevention of Corruption Act the pension of the retired Government servant should be withheld. It is also true that in the impugned Notification dated 30th August 2010, the State Government has referred to the communication sent by the Vigilance Department rather than Rule 43 of the Pension Rules. It is well settled that reference to a wrong provision does not Patna High Court LPA No.837 of 2012 (5) dt.11-09-2014 5/7 invalidate the order. We are, therefore, required to examine whether the impugned Notification has been issued in consonance with Rule 43 of the Bihar Pension Rules, 1950.
Clause (a) of Rule 43 of the Bihar Pension Rules empowers the State Government to withhold or withdraw a pension or a part of it if the pensioner is convicted of serious crime or is guilty of grave misconduct. Under clause (b) thereof, the State Government is empowered to withhold or withdraw the pension or any part of it or to make recovery from pension of the pecuniary loss caused by the pensioner if the pensioner is found in a departmental or a judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss. The Proviso thereof imposes certain conditions if the departmental proceeding were not initiated while the pensioner was in service and is initiated after the pensioner has retired from service. Explanation thereof provides the point of time at which the departmental or judicial proceeding can be said to have been instituted.
Mr. Rupak Kumar has vehemently submitted that this Rule 43(b) envisages a departmental proceeding after retirement of a Government servant before the State Government withholds or withdraws the pension or any part of it. In the present case, no departmental proceeding has been initiated against the writ petitioner after he retired from service. Obviously, Mr. Rupak Kumar has been labouring under a misconception of law. Clause
(a) of Rule 43 empowers the State Government to withdraw the pension or any part of it in the following terms:-
"43.(a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the Patna High Court LPA No.837 of 2012 (5) dt.11-09-2014 6/7 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."
Once the writ petitioner has been held guilty by the Court of competent jurisdiction; has been convicted and sentenced, no further enquiry is contemplated. Based on such conviction the State Government is empowered to order withholding of pension. At the best the State Government may be required is to issue a notice to show cause against the intended action. The same having been done in the present case, the impugned Notification dated 30th August 2010 cannot be vitiated.
The judgments relied upon by Mr. Rupak Kumar support this view. The said judgments do not lend support to the writ petitioner.
The course of action adopted by the learned Single Judge is also erroneous and is not supported by any precedent. The above referred judgments of the Hon‟ble Supreme Court categorically held that the "conviction" means the conviction recorded by the Court of competent jurisdiction. Pendency of appeal against the order of conviction or the order of suspension of sentence pending the appeal against conviction and sentence are of no relevance for the purpose of withholding of pension under Rule 43 of the Pension Rules.
The conviction of the petitioner under the Prevention of Corruption Act is a conviction for a „serious crime‟ Patna High Court LPA No.837 of 2012 (5) dt.11-09-2014 7/7 contemplated under the aforesaid Rule 43(a) of the Bihar Pension Rules, 1950. No exception can be made in respect of such grave offence. The impugned action of the State Government is in consonance with Rule 43 of the Bihar Pension Rules.
For the aforesaid reasons, Appeal is allowed. The impugned order dated 3rd May 2011passed by the learned Single Judge in CWJC No.18001 of 2010 is set aside. CWJC No. 18001 of 2010 is dismissed.
(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) mrl U