Patna High Court
Sheo Pujan Singh vs State Of Bihar And Ors. on 3 May, 1988
Equivalent citations: 1989(37)BLJR90, (1990)ILLJ465PAT
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, J.
1. In this writ petition the petitioner prays for issuance of a writ of or in the nature of mandamus directing the respondents to pay full pension to the petitioner.
2. The facts of the case lie in a very narrow compass.
3. The petitioner who was in the employment of the State of Bihar reached his age of superannuation on 1st May 1979. The petitioner was not given his pension an gratuity legally due to him. The petitioner approached this Court in its writ jurisdiction which was registered as C.W.J.C. No. 2616 of 1979 and was disposed of on 7th December 1979 by an order contained in Annexure 2 to the writ petition.
4. As there has been violation of the direction contained in the aforementioned judgment dt. 7th December 1979 as contained in Annexure 2 to the writ petition, the petitioner filed an application for initiating a proceeding of contempt of Court which was registered as Miscellaneous Judicial Case No. 147 of 1980. The said case was disposed of by a judgment dt. 10th July, 1980. The said judgment is contained in Annexure 3 to the writ petition. In the aforementioned judgment dt. 10th July, it was held as follows:-
'It is, therefore, necessary to see as to the circumstances in which Rule 43(b) is applicable. It is accepted that no departmental proceeding is pending against the petitioner. So far as judicial proceedings are concerned it has been clearly stated in the explanation to this rule that judicial proceeding shall be deemed to be instituted in case of criminal proceedings on the date on which a complaint is made or chargesheet is submitted to a Criminal Court. It is an accepted position here that neither any complaint has been made nor a chargesheet has been submitted to a Criminal Court. In this situation Rule 43 is clearly inapplicable. Moreover, proviso to Rule 43 envisages inapplicability of the rule to judicial proceedings in respect of an event which had taken place not more than 4 years before the institution of the said proceedings. This appears to be another reason for non-applicability of Rule 43 so far as the case of the petitioner is concerned."
5. It was admitted that the petitioner was granted pension and gratuity to the extent of 75 per cent.
6. On 31st July, 1981, the Finance Department of the State of Bihar issued a circular wherein it was categorically stated that the provisional pension shall be payable in its entirety after a period of two years.
7. According to the State of Bihar, as it appears from its counter affidavit, the said circular will have no application in relation to the persons, who retired on or after 31st March 1980. However, from Clause 20 of the said circular it appears that although the said circular does not apply in its entirety in respect of a person who retired on or after the 31st March 1980 but the prescribed procedures in relation thereto apply to a!l persons whose cases relating to the pension have not then been disposed of. In view of this circular, the learned counsel contends that the petitioner ought to have been paid the entire sum payable to him by way of pension and gratuity.
8. Smt. Indu Prabha Singh, the learned Government Pleader No. (VI), on the other hand, submitted that the petitioner cannot be granted enhanced pension and gratuity in view of the fact that a criminal case is still pending decision, as it appears from Annexure 'A' to the said counter affidavit. From Annexure 'A' to the said counter affidavit it also appears that sanction of prosecution against various persons including the petitioner was granted in relation to a case, the period whereof is 26th July 1965 to 22nd October 1966. The learned Government Pleader No. VI, therefore, contends that in this view of the matter Rule 43 (b) of the Bihar Pension Rules is attracted in the instant case.
9. However, in the counter affidavit the State has admitted that the criminal case has not been disposed of even after a lapse of 17 years. It has further been admitted in the said counter affidavit that one Kailash Rai against whom a similar case was pending was allowed to cross the efficieny bar and who has further been promoted as Executive Engineer.
Rule 43(b) of the Bihar Pension Rules reads as follows:-
"The State Government further reserve to themselves the right of withholding or withdrawing pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement.
Provided that-
(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment:
(i) shall not be instituted save with the sanction of the State Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;
(b) Judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment, shall have been instituted in accordance with Sub-clause (ii) of Clause (a); and
(c) the Bihar Public Service Commission, shall be consulted before final orders are passed".
10. Rule 43(b) speaks of both departmental and judicial proceedings. In such a departmental or judicial proceeding an employee must be found to be guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re-employment after retirement.
However, such a departmental proceedings has to be initiated subject to the conditions mentioned therein, one of them being that the same should be initiated in respect of an event which took place not more than four years before the institution of such proceedings.
In the instant case, therefore, no departmental proceedings is possible to be initiated against the petitioner. However, rightly or wrongly a judicial proceedings in the shape of aforementioned criminal case is pending.
11. This aspect of the matter has been considered by the Division Bench in the aforementioned M.J.C. No. 147 of 1980 and in that case the Division Bench has categorically held that the plea that a criminal case was pending against the petitioner cannot be accepted in view of the fact that no charge sheet was submitted to a Criminal Court.
Rightly or wrongly the Division Bench came to the conclusion that Rule 43(b) of the Bihar Pension Rules was not attracted in the aforementioned case. The State must be held to be bound by the aforementioned judgment. In the earlier case the petitioner was directed to be paid 75 per cent of pension and grautity.
12. Evidently, at that point of time the resolution dt. 31st July 1980 was not available and in that view of the matter, in my opinion, as now the said resolution at. 31st July 1980, as contained in Annexure 1 to the writ petition, has come into force, the procedure whereof is applicable in the case of the petitioner also. In my opinion, the State of Bihar should now pay the entire pension and gratuity to the petitione.
It is needless to add that if in the judicial proceedings it is found that the petitioner has caused pecuniary loss by misconduct or negligence or is guilty of grave misconduct, in such an event it would be open to the State of Bihar to take action in accordance with law.
13. However, in view the very fact that criminal case is pending for such a long time, it is not justified to withhold pension and gratuity of the petitioner in spite of the aforementioned resolution dt. 31st July, 1980 and as contained in Annexure 1 to the writ petition.
14. In the result this writ petition is allowed and the respondents are hereby directed to grant full pension and gratuity to the petitioner within two months from today.
15. In view of the fact that the State has not implemented its own circular dt. 31st July, 1980, the petitioner would be entitled to interest at the rate of 12 per cent per annum with effect from 1st May 1981.
It is also made clear that the State of Bihar must pass an order with regard to the petitioner's pension and gratuity.
16. In the facts and circumstances of the case, there will, however, be no order as to costs.