Patna High Court
Shashi Kumar Sinha vs The State Of Bihar & Ors on 13 August, 2008
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC NO. 4866 OF 2002
SHASHI KUMAR SINHA-------------------------------------------(Petitioner)
Versus
THE STATE OF BIHAR & ORS--------------------------------(Respondents)
For The Petitioner : AMBAR NATH BANERJI, Advocate
For The Respondent : Government Pleader No. 7
PRESENT
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
Mihir Kumar In this writ application, the petitioner has sought for a
Jha, J
direction from this Court commanding upon the respondents
for making payment of his full pension gratuity, leave
encashment which according to him became payable since
June, 2001. The petitioner has also prayed for payment of
interest on all the aforementioned dues amount at the rate of
12%.
It is the case of the petitioner that he was appointed on
30.10.1966as Block Animal Husbandry Supervisor (Class III Post) and thereafter he was also promoted on Class II post of Touring Veterinary Officer (Mobile). The petitioner however has stated that he was suspended on 30.6.2001 in contemplation of a departmental proceeding and he has also admitted in paragraph no.6 of the writ petition that he was made accused in the animal husbandry scam cases being R.C. (Special) Case No. 23/96, 24/96, 35/96, 41/96 and 46/96 and was also taken into custody but subsequently he had been enlarged on bail and in none of them he has been convicted till date.
-2-The petitioner claims as no departmental proceeding has been initiated against him till the date of his retirement, no proceeding under Rule 43 (b) of Bihar Pension Rule is pending against him and yet he was only sanctioned 90% of the pension by the Accountant General, Bihar vide his letter dated 25.2.2002. The petitioner therefore has claimed that 10% of pension, full gratuity and the amount of leave encashment having been not paid, this application was filed for payment of his full retirement benefit. The petitioner in this context has placed his reliance on the judgment of this Court dated 26.8.1999 Bajrang Deo Narayan Sinha Vs. State of Bihar and Ors. reported in 1999(3) PLJR 949 wherein this Division Bench of this Court has held that the pensional dues payable to an employee cannot be withheld till such time as an order is passed under Rule 43(b) of Bihar Pension Rules and even the leave encashment cannot be withheld.
A counter affidavit has been filed on behalf of the respondent State wherein it has been stated that as the petitioner has been made accused in five criminal cases all relating to animal husbandry scam namely R.C. (Special) Case No. 23/96, 24/96, 35/96, 41/96 and 46/96, the State Government in keeping with the provisions of Rule 43(b) and Finance Department Resolution No. 3014, 1980 had decided to withhold 10% pension as well as other retrial benefits (gratuity and leave encashment) due to pendency of criminal cases. It has further been stated that it is only after disposal of the criminal cases by special court of CBI that the -3- Government will consider the claim of the petitioner.
Counsel for the petitioner had submitted that under Rule 43(b) of the Bihar Pension Rules, pension including gratuity can be withheld only when a pensioner is convicted of a serious crime or be guilty of grave misconduct. In this context, it was submitted that admittedly no departmental proceeding had been drawn against the petitioner during his service period for any misconduct and that the petitioner has not been convicted in any of the criminal cases pending against him and as such, the decision taken by the Deputy Secretary to the Government in the Department of Animal Husbandry and Fisheries sanctioning for authorization of only 90% of the provisional pension to the petitioner was wholly without jurisdiction and consequently the decision to pay him only 90% of pension was unsustainable either on fact or in law.
Counsel for the State on the other hand contended that admittedly the petitioner was placed under suspension on 16th April, 1996 in terms of Rule 49(a) of Civil Services Classification Control and Appeal Rules for committing gross misconduct and irregularity in the matter of withdrawal of Government money and as such a departmental proceeding in terms of Rule 43(b) of the Bihar Pension Rules would be deemed to have been pending. He had further submitted that even judicial proceeding against the petitioner would be deemed to have been instituted in view of the criminal case being pending against him in which charge-sheet has already -4- been submitted which stood corroborated even as per own version of the petitioner, who claims that trial in which aforementioned five cases in the CBI Court is still going on. In this context, the counsel for the State had also referred to the decision of the Finance Department contained in its Memo No. 50-7012753 dated 26.11.1970 which according to him entitles the Government to continue with the departmental or judicial proceeding even after retirement of a Government servant. He has further placed reliance on another circular of the Finance Department containing in Memo No. BC-11-40-28/74/9144F dated 22.8.1974 that during continuance of such departmental or judicial proceeding against an officer of the Government who had retired under suspension, he would be only entitled for payment of provisional pension of 75% but no gratuity or death cum retrial gratuity would be paid to him only on conclusion of the judicial or departmental proceeding and the issue of official orders thereof.. Contending further on the basis of aforementioned decision of the Government contained in Circular dated 22.8.1974, learned counsel for the State had also placed reliance on paragraph no. 7(ga) of the resolution of the Finance Department No. 3014 dated 31.7.1980 wherein the amount of provisional pension from 75% as provided in the circular of the Finance Department dated 22.8.74 and 31.10.74 had been enhanced to 90%, which has already been paid to the petitioner and therefore the claim of the petitioner for payment of full pension, -5- gratuity and leave encashment was not admissible in this case. Learned counsel for the State in this context had also sought to draw a line of distinction as with regard to the permanent withholding of pension including gratuity upon conviction in a criminal case and temporary withholding of pension or any part thereof till such time the final decision in the criminal proceeding had been arrived at because a charge-sheet had already been submitted in the criminal case while the petitioner was in service. In this context, he had referred to judgment of this Court in the case of Lakshmi Shankar Prasad Vs. State & Ors. reported in 1999(3) PLJR
654. Having given anxious consideration to the rival submission of both the parties, this Court is of the view that the claim of full payment of pension including gratuity of the petitioner is untenable till the conclusion of the criminal case and his clean acquittal in such criminal cases. In this regard this court cannot overlook the admitted fact that the petitioner was placed under suspension while he was continuing in service in terms of an order dated 16th of April, 1996 under Rule 49(a) of Civil Services (Classification, Control & Appeal) Rules. Rule 49(a) of the aforementioned rules envisages suspension both in contemplation or during pendency of a departmental proceeding or even during pendency of enquiry investigation or trial of a criminal case. In this respect, it will be relevant to quote Rule 49(a) of the Civil Services (Classification, Control & Appeal) Rules which -6- reads as follows:-
[49A. (1) The appointing authority or any authority to which it is subordinate or the Governor by general or special order, may place a Government servant under suspension-
(a) where disciplinary proceeding against him is contemplated or is pending, or,
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
¼x½ fookg ds lkr lky ds Hkhrj fdlh efgyk dh e`R;w] tyus ls vFkok 'kkjhfjd pksV ls vFkok vlk/kkj.k ifjfLFkfr;ksa esa gks tkrh gS vkSj ;g n'kkZ;k tkrk gS fd mldh e`R` ;w ds rRdky igys mlds ifr vFkok mlds ifr ds fdlh fj'rsnkj }kjk ngst lEcU/kh fdlh ekWx ds fy, vFkok ngst ds lEcU/k esa dzwjrkiw.kZ O;ogkj fd;k x;k gks vFkok ijs'kku fd;k x;k gks rks ,slh e`R;w dks ngst lEcU/kh e`R;q dgk tk,xk vkSj ;g le>k tk;sxk fd og e`R;w dks ngst lEcU/kh e`R;w dgk tk,xk vkSj ;g le>k tk;sxk fd og e`R;q mlds ifr vFkok fj'rsnkj ds dkj.k gqbZ gS vkSj ;fn ljdkjh deZpkjh ds fo:) Hkk-n-la- 1860 ¼vf/kfu;e 45] 1860½ dh /kkjk 304 [k ds vUrxZr iqfyl }kjk dksbZ ekeyk ntZ fd;k x;k gks rks] ;g ekuk tk;sxk fd vijk/k djus ds dkj.k muds fo:) izFken`"V;k ekeyk curk gSA naM izfdz;k lafgrk 1973 ¼vf/kfu;e 2] 1974½ dh /kkjk 173 dh mi&/kkjk 2 ds v/khu Fkkuk izHkkjh }kjk eftLV~sV dks fjiksVZ izLrqr fd;s tkus ij ;fn mDr fjiksVZ ls izFke n`"V;k ;g fufnZ"V gksrk gks fd vijk/k ljdkjh deZpkjh }kjk fd;k x;k gS rks mls fuyfEcr dj fn;k tk;sxkA (2) A Government servant shall be deemed to -7- have been placed under suspension by an order of appointing authority -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
Explanation:- The period of forty-eight hours-referred to in clause (b) of this sub-
rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(3) Where a penalty of dismissal,
removal or compulsory retirement
from service imposed upon a
Government servant under
suspension is set-aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal,
removal or compulsory retirement
-8-
from service imposed upon a
Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
(5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.
(b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall -9- continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate."
Once the petitioner was suspended on 16th of April, 1996 and five criminal cases of the year 1996 were pending against the petitioner, he will be deemed to be continuing under departmental proceeding in terms of Rule 43(b) which reads as follows:-
"43 (b) The State Government further reserve to themselves the right of withholding or withdrawing a 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 re-employment;
- 10 -
(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 re-employment, 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.
Explanation.- For the purposes of the rule-
(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the petitioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted:-
(i) in the case of criminal proceedings, on the date on which a complaint is made or a
- 11 -
charge-sheet is submitted, to a criminal court; and
(ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court."
Thus on a conjoint reading of the provisions of Rule 43(b) of Bihar Pension Rules read with Rule 49(a) of Civil Services (Classification, Control & Appeal) Rule both a departmental proceeding and a judicial proceeding was pending against the petitioner on the date of his retirement i.e. 31.01.2006 on account of his continuing under an order of his suspension dated 16.04.1996 (Annexure-1) as also submission of chargesheet in all the five criminal cases Learned counsel for the State therefore is correct in his submission that the petitioner was in fact allowed to retire without revocation or modification of his order of suspension as required under Rule-49(A) (5) of C.C.S. C.C.A. Rules in terms of the Circular of the State Government dated 26.11.1970 wherein the State Government had made the following provisions:-
"It is to refer to the provisions contained in rule 73(f) of the Bihar Service Code according to which Government servants under suspension on charge of misconduct should not be required or permitted to retire on reaching the age of compulsory retirement until the enquiry into the charges are concluded and a final order is passed
- 12 -
by the Competent Authority. Thus the Government servants concerned are required to be retained in service by granting extension beyond the age of superannuation until the enquiries into the charges against them are concluded.
2. It has been brought to the notice of Government that the application of the said rule often leads to delay in finalization of the pension claims of the Govt. servants and also result in unnecessary payment of substantive grant for a longer period without adequate justification. Besides, this procedure confers the benefit of automatic extension in case of Government servants who are fully exonerated in due course on the conclusion of the enquiries or proceedings.
The matter has been carefully considered by the State Government and it has now been decided that Government servants under suspension should retire on reaching the age of superannuation irrespective of the question whether enquiries into charge or departmental or judicial proceedings initiated against them have been concluded or not. It has further been decided that this revised procedure should take effect from the 1st November, 1970.
3. The enquiries or proceedings that might have been already started or likely to be taken up against Government servant in future would however, be continued even after their retirement from Government service in accordance with the procedure
- 13 -
laid down in rule 43(b) of the Bihar Pension Rules. Separate instructions would issue about the manner in which pension would be paid to such Government servants on retirement from the Government service, in accordance with the decision taken in paragraph 2 above.
4. In the light of the decision conveyed in paragraph 2 above steps are being taken to delete rule 73(f) of the Bihar Service Code by issuing necessary correction slips. In the meanwhile, the said rule should be deemed to have ceased to be in operation with effect from 1st November, 1970."
In view of the aforementioned provisions in the Circular of the State Government dated 26.11.1970, the petitioner cannot be heard to say that his such departmental proceeding and judicial proceeding came to an end only because he while continuing in suspension was allowed to retire on reaching the age of superannuation.
As a matter of fact, the decision of the Government issued in the Circular of the Finance Department dated 22.8.1974 also makes it clear that such a Government servant under suspension who retires under the deemed departmental proceeding or judicial proceeding on account of being placed under suspension and/or filing of a charge- sheet in a criminal cases, would not be entitled for payment of gratuity and would at best be entitled to only payment of provision pension till conclusion of the departmental proceeding/judicial proceeding.
- 14 -
In this context, the Circular of the Finance Department dated 22.08.1974 on the subject of payment of pension to Government servant who were under suspension or against him departmental or judicial proceeding or enquiries had not been concluded on the date of their retirement also needs to be taken into consideration which reads as follows:-
"The question of sanctioning pension to Government servants who are under suspension or against whom departmental of judicial proceedings or enquiries have not been concluded on the date of compulsory retirement has been under active consideration of Government.
2. The State Government have been pleased to decide that (i) where any departmental or judicial proceeding is instituted under rule 43(b) of Bihar Pension Rules, a Government servant or where a departmental proceeding is continued against an officer who have retired on attaining the age of compulsory retirement, or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceedings, final orders are passed 75% provisional pension of the pension which would have been admissible on the basis of his qualifying service upto the date of retirement, or if he was under
suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the
- 15 -
conclusion of such proceeding and the issue of final orders thereon.
(ii) Payment of provisional pension may under the above provision shall be adjusted against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional or the pension is reduced or withheld either permanently or for a specified period.
3. The grant of pension under the aforesaid provision shall not prejudice the operation of rule 139 of Bihar Pension Rules where final pension is sanctioned upon the conclusion of the proceedings.
4. These orders will be effective from the 1st November, 1970. All pending cases will be decided accordingly.
It is in this respect that one has to also examine the relevance of the subsequent Government Resolution No. 3014 dated 31.7.1980 wherein in paragraph no. 7(Ga), the State Government while reiterating the aforementioned Government Resolution dated 22.8.1974 as with regard to withholding the full amount of gratuity paying the provisional pension till the conclusion of the judicial proceeding and departmental proceeding, had only enhanced the quantum of amount of provisional pension from 75% to 90%. To make the things clear, paragraph no. 7(Ga) of the aforementioned Government Resolution No. 3014 dated 31.7.1980 is also quoted hereinbelow:-
- 16 -
^^¼x½ tgkW ljdkjh lsod dh lsok vof/k esa izkjEHk dh x;h foHkkxh; ;k U;kf;d dk;Zokfg;kW lsok fuo`fr dh frfFk rd vfUre :i ls fu"ikfnr gksus dh lEHkouk u gks ogkW for foHkkx ds ifji=kad 9144@fo0] fnukad 22-8-1974 ,oa 11260 fo0] fnukad 31-10-1974 ds izko/kkuksa ds v/khu vkSicaf/kd isa'ku Lohd`fr djus dh dkjZokbZ dh tk; ftlls lsok fuo`r gksusokys ljdkjh lsod dks dfBukbZ u gksA uhps dafMdk 8 ds ¼x½ esa fufgr izko/kku bl dksfV ds ekeys esa ykxw ugha gksaxsA bl dksfV ds ekeys esa vkSicaf/kd isa'ku dh jkf'k fu;er% vuqekU; isa'u dh vf/kdre jkf'k ls de gksxh ij fdlh Hkh fLFkfr esa 90 izfr'kr ls de ugha gksxhA** In terms of the aforementioned provision made by the Government in its Circular as referred above, it cannot be said that if a decision has been taken for temporarily withholding of 10% of payment of pension and full amount of gratuity till the conclusion of criminal case against the petitioner, the same is not against the spirit of Rule 43(a) of the Bihar Pension Rule. This aspect of the matter in fact stands concluded by the judgment of Division Bench in the case of State of Bihar & Ors. Vs. Ganga Bishun Mahto & Ors.
reported in 2001(4)PLJR 435 wherein the Division Bench having taken into consideration Finance Department Memo No. PC-11-40-28/74/9144F dated 22.8.1974 and PC-11-40- 98/74-11260F dated 31.10.1974 and addressing to the background in which the two circulars came to be issued
- 17 -
had in paragraph no.10 of the aforesaid judgment, held as follows:-
"It came to the notice of the State Government that delay is being caused in finalization of the pension claim of the government servant against whom a departmental of judicial proceedings have not been concluded on the date of superannuation. Accordingly, it issued instructions or circulars from time to time. The first instruction was issued vide Finance Department Memo No. PC-11-40- 28/74/9144 F; dated 22.8.1974 which became effective from 1st November, 1970. It provided that where any departmental or a judicial proceeding is instituted under rule 43(b) of the Rules and the same is continuing after retirement of the employee concerned under the aforesaid provision, he shall be paid during pendency of the proceeding till final orders are passed 75% provisional pension which would have been admissible on the basis of his qualifying service up to the date of retirement. The State Government again vide F.D. Memo No. PC-11-98-40-98/74-11260 F, dated 31.10.1974 clarified the matter and stated that payment of 75% of provisional pension shall be adjusted against the final retirement benefits sanctioned to such officer on conclusion of the proceedings but no recovery shall be made when the pension finally sanctioned is less than thee provisional pension or pension is reduced or withheld permanently or for specified
- 18 -
period. It has been further stated therein that grant of pension shall not prejudice the operation of Rule 139 of the Rules where final pension is sanctioned upon the conclusion of the proceeding. In spite of issuance of the aforesaid circulars, the State Government found that the employees are facing difficulties in payment of retirement benefits and as such it issued another instruction, vide Finance Department Resolution No. 3014 dated 31st July, 1980, simplifying the procedure to grant of pension where elaborate procedure has been made for taking steps for payment of pension at the time of superannuation. Clause (7) provides inter alia that in case of government servant against whom, no departmental or judicial proceeding has been initiated, in that case his pension is not to be withheld. However, if the proceeding is pending and there is no chance of conclusion prior to his retirement in that case, earlier circular of 1974 will apply and the employee will be paid provisional pension which shall not be less than 90% of the pension."
In Ganga Bishu Mahto & Ors. case (supra), the Division Bench in fact had also considered the issue as to whether these two circulars had the effect of supplanting or supplementing the provisions made in Rule 43 of Bihar Pension Rules and in paragraph no. 22, the Division Bench had come to the following conclusions:-
"In the present case, as stated above, the pension rules are silent with regard to
- 19 -
payment of retrial dues to the employees on superannuation against whom the proceeding is pending and it has not come to final conclusion. To meet that situation, instructions have been issued that provisional pension has to be paid in such a situation. After the proceeding is concluded, a final decision with regard to final pension is to be taken in terms of the finding arrived at by the disciplinary authority. It was also provided inter alia that even if the pension is reduced, or fixed at a level lower than the provisional pension, no recovery would be made from the concerned employee. Thus, the aforesaid provisions are for benefit of the employees and are supplemental to the rules and they are not in case of pendency of the proceeding after superannuation, the concerned authority can not take a final decision under Rules 139 regarding the satisfactory service and in such situation there would be delay in payment of retrial dues to the superannuated employee. To meet the said situation and to mitigate the hardships to the retired employees, the said provision has been made. Accordingly, the view taken by the learned Single Judge in the case of Satyendra Narain Sinha @ Dr. Satyendra Narain Sinha (supra) on which he has relied upon in allowing the writ application is not correct."
Thus, in view of what has been held above by the Division Bench in the case of Ganga Bishun Mahto (Supra), it can be safely held that where a case of departmental proceeding or judicial proceeding has remained pending, the
- 20 -
Government servant in terms of the aforementioned circular of the Finance Department dated 22.8.1974 read with subsequent circular dated 31.10.1974 is only entitled for payment of provisional pension till conclusion of such departmental/judicial proceeding. There being no doubt that in the case of the petitioner that such a judicial proceeding, by way of pendency of the five criminal cases against the petitioner is still pending and as such, the petitioner will not be entitled for payment of full pension, full gratuity as has been claimed in this writ application.
The reliance placed by the petitioner on the earlier judgment of the Division Bench in the case of Bajrang Deo Narain Sinha Vrs. State of Bihar & Ors. reported in 1999(3) PLJR 949 is apparently misconceived inasmuch as the subsequent Division Bench Judgment in the case of Ganga Bishun Mahto & Ors. case (supra) it was held that the relevant circulars/instruction of the year 1970, 1974 & 1980 which contains provision for payment of provisional pension during pendency of the proceeding for the purposes of withholding pension etc. were neither referred to nor noticed. In this context in paragraph no.17 of Ganga Bishun Mahto & Ors. case, the Division Bench had held as follows:-
"From perusal of the decision in the case of Bajrang Deo Narain Sinha (supra), it appears that the aforesaid instructions of the years 1970, 1974 and 1980 which contained provision for payment of provisional pension during pendency of the proceeding for the purpose of withholding
- 21 -
pension etc. were not referred to nor noticed and thus the question as to whether the provisions contained in the aforesaid executive instruction are valid or not, was not at all subject matter of the decision in that case, and as such the said case is not an authority on the point that the aforesaid executive instruction cannot be given effect to being in conflict with the statutory provision contained under rule 43(b) or rule 139 of the Rules."
Judged in this background, the decision of Bajrang Deo Narain Sinha case is itself perincuriam both on account of not considering the aforementioned relevant 1970, 1974 and 1980 circulars/instruction of the Finance Department which were relied in the case of Ganga Bishun Mahto & Ors. (supra) but also on account of the fact that the decision of Bajrang Deo Narain Sinha (supra) is based on the judgment of Supreme Court in the case of D.V.Kapoor Vrs. Union of India reported in AIR 1990 SC 1923 which was also overruled by the Supreme Court in the subsequent judgment of Jarnail Singh Vrs. The Secretary, Ministry of Home Affairs & Ors. reported in AIR 1994 SC 1484. In that view of the matter the decision in Bajrang Deo Narain Sinha cannot be held to be a good law.
As a matter of fact, subsequently after the judgment of Bajrang Deo Narain Sinha (supra) and Ganga Bishun Mahto (supra) an issue came before this Court as with regard to the admissibility of payment of full pension and full gratuity during pendency of a criminal case i.e. judicial proceeding
- 22 -
and learned Single Judge in the case of Awadh Behari Chaudhary Vs. State of Bihar & Ors. reported in 2004(1) Bihar Law Journal Report 127 had chosen to rely on the judgment of Bajrang Deo Narain Sinha to the effect that the State cannot withhold pension or any part thereof till such time an order is passed under Rule 43 of the Bihar Pension Rules and only in cases of proved misconduct that a part or whole of the pension could be withheld and had in this context laid down the law in following terms:-
"7. I have perused the pleadings on record and considered the submissions of learned counsel for the parties. I observe that the counter-affidavit was sworn in on 3.3.2003 and no statement has been made about the present position of vigilance P.S. Case No. 6/1997, wherein the petitioner is a named accused as per the statement made in the counter-affidavit. No attempt has been made to explain as to how the six years that have elapsed since institution of the case been utilized and the progress made in the investigation of the case. The Board has not "thought it fit to inform this Court of the present stage of the Vigilance Case and has instead confronted this Court with the conclusion of payment of provisional pension. The Board has also not informed this Court of the petitioner's involvement in the criminal case. Learned counsel for the petitioner has rightly relied on the judgments of this Court in Baliram Thakur Vs. Bihar State Electricity Board (supra). The latter is a Division Bench
- 23 -
Judgment of this Court. It has been held in both the judgments that the state cannot withhold pension or any part thereof till such time an order is passed under Rule 43(b) of the Bihar Pension Rules and only in cases of proved misconduct that a part or whole of pension can be withheld. Even if it is taken to mean that such an order withholding part or full of the pension does not take within its sweep a provisionally withheld pension, yet the same cannot be withheld on a provisional basis for an unduly long time. In the present case, as stated hereinabove, not the slightest of indication is to be found in the counter- affidavit as to how six to seven years have been utilized, the present stage of the vigilance case, and the extent of the petitioner's involvement. The respondent should have filed a more responsible counter affidavit placing all the relevant materials before this Court to come to its conclusions, rather than confronting it with its conclusion.
8. The Division Bench judgment of this Court in the State of Bihar Vs. Ganga Bishun Mahto (supra) is not applicable to the facts and circumstances of the present case, wherein it has, interalia, been held that the right to pension flows to an employee not because an order of payment is passed, but by virtue of the rules governing grant of pension. The pension can be withheld or reduced in terms of Rule 43(b) and/or Rule 139(B) of the Bihar Pension Rules, if the service of a
- 24 -
Government servant is not found thoroughly satisfactory or there is proof of grave misconduct during his service tenure, proof of misconduct has to be determined by taking recourse to the provisions contained in Rule 43(B). There cannot be any dispute with this proposition, but the same is applicable to the facts and circumstances of the present case because no action has been taken in terms of Rule 43(b) or rule 139 of the Bihar Pension Rules. The question raised here is covered by the judgments relied upon by learned counsel for the petitioner.
The said judgment of learned Single Judge however was set aside by the Division Bench in L.P.A. No. 446/2003 disposed of on 7.8.2003 in the following terms:-
"The Division Bench of this Court in the case of State of Bihar & Ors. Vs. Ganga Vishun Mahto & Ors. reported in 2001(4) PLJR 435 has resolved the issue and has held that under the Bihar Pension Rules no provision has been made to meet the situation when a departmental or criminal proceedings is pending and no final order has been passed with regard to the misconduct. It has been held that under the Bihar Pension Rules, order to withhold pension has been vested in the authority after proving of misconduct in the departmental or criminal proceedings. No provision has been made to meet the situation where a departmental or judicial proceeding is pending and no final order has been passed with regard to the
- 25 -
misconduct. To meet such situation, notifications/circulars have been issued providing for payment of provisional pension. It is relevant to quote paragraphs 18 & 22 of the said judgment which run as follows:-
"18. In the case of Md. Idris Ansari (supra), the Apex Court has held the two situations where the pension can be withheld or reduced as noticed above. Under the Pension Rules, no provision has been made to meet the situation where a departmental or judicial proceeding is pending and no final order has been passed with regard to misconduct. A pension is to be payable when the service of a government servant is thoroughly satisfactory. Where a proceeding is pending against a government servant, in that case it will be difficult for the sanctioning authority to come to the conclusion that the service of a government servant is thoroughly satisfactory during the period. As there was no provision in the rule to meet the aforesaid situation, the government has issued the aforesaid circulars/instructions containing provisions for payment of provisional pension to the government servants during the pendency of the proceedings so that they may not suffer because of the pendency of the proceedings."
"22. In the present case, as stated
- 26 -
above, the pension rules are silent with regard to payment or retrial dues to the employees on superannuation against whom the proceeding is pending and it has not come to final conclusion. To meet that situation, instructions have been issued that provisional pension has to be paid in such a situation. After the proceeding is concluded, a final decision with regard to final pension is to be taken in terms of the finding arrived at by the disciplinary authority. It was also provided interalia that even if the pension is reduced, or fixed at a level lower than the provisional pension, no recovery would be made from the concerned employee. Thus, the aforesaid provisions are for benefit of the employees and are supplemental to the rules and they are not in conflict or inconsistent with the rules. In case of pendency of the proceeding after superannuation, the concerned authority cannot take a final decision under Rule 139 regarding the satisfactory service and in such situation there would be delay in payment of retrial dues to the superannuated employee. To meet the said situation and to mitigate the hardships to the retired employees, the said provision has been made. Accordingly, the view taken by the learned Single Judge in the case of
- 27 -
Satyendra Narain Sinha @ Dr. Satyendra Narain Sinha (supra) on which he has relied upon in allowing the writ application is not correct. The same view has been taken by the earlier Division Bench of this Court in the case of Ram Bahadur Sinha Vs. State of Bihar & Ors. (1994 (2) PLJR 724).
It is an admitted position that a vigilance case is pending in the Court against the respondent. In that view of the matter, the Board was justified in sanctioning the provisional pension during the pendency of the criminal proceedings in the Court."
Thus, it has to be held that the law laid down by this Court in the case of Ganga Bishun Mahto (supra) is still a good law and applying the ratio thereof there is no escape from the conclusion that the petitioner is not entitled for payment of full pension and full gratuity till the pendency of the criminal case against him.
The question however still remains as to whether the State Government can withhold the amount of leave encashment payable to the petitioner during the pendency of a criminal case. Leave encashment is actually an amount payable in lieu of unutilized leave and partake, the character of salary. The amount of salary cannot be withheld on the ground of pendency of a proceeding under Rule 43(b) whether it be a departmental proceeding or judicial proceeding in terms of Rule 43(b). This aspect of the matter in fact has been also clarified by the Bench in the case of
- 28 -
Lakshmi Shankar Prasad Vs. State & Ors. (supra) reported in 1999(3) PLJR 654 wherein it was held that:-
"From the submissions made and the affidavits I find that the order dated 24th December,1996 was issued illegally, in contradiction to the order of this Court dated 8th August, 1995 passed in CWJC No. 9990/93, so the same cannot be given effect, but, there was no willful intention of the opposite parties in issuance of the aforesaid order. However, I find that the State Government can withhold part of the pension till the final decision taken in the Criminal proceeding as charge-sheet was submitted in the criminal case while the petitioner was in service. However, in such case the State Government is liable to pay the rest of the pension amount, after withholdment part of the pension, in terms of the Government Circular, subject to the final decision in criminal proceeding."
As such, it has to be held that even during pendency of a criminal case, the petitioner is entitled for payment of rest of amount such as provident fund, unutilized leave, group insurance etc. In view of what has been held above, this Court directs the respondents to make payment of amount of leave encashment to the petitioner, if not already paid to him, within a period of three months from the date of receipt/production of copy of this order.
It is further directed that the payment of balance 10%
- 29 -
pension and full amount of gratuity to the petitioner would abide by the result of the five criminal cases being R.C. (Special) Case No. 23/96, 24/96, 35/96, 41/96 and 46/96 pending before the Special Court, CBI.
This writ application is accordingly allowed in part to the extent indicated above but there would be no order as to cost.
Patna High Court (Mihir Kumar Jha, J.) Dated, the 13th of August 2008 AFR/Rsh