Patna High Court - Orders
Arvind Kumar Singh vs The State Of Bihar & Ors on 16 May, 2017
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15328 of 2016
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1. Arvind Kumar Singh Son of Late Rup Narayan Singh Resident of village
and P.O. Madhopur Hazari, P.S. Sahebganj, District Muzaffarpur the retired
Superintending Engineer, Rural Works Department, Work Circle, Siwan
.... .... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar,
Patna
2. The Principal Secretary, Rural Works Department, Government of Bihar,
Patna
3. The Accountant General, Bihar, Patna
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. S.B.K. Mangalam, Adv.
For the Respondent/s : Mr. Prashant Pratap- GP-2
For Accountant General : Mr. J.K. Roy, Adv.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
7 16-05-2017The petitioner seeks following reliefs in the present writ application :
"(I) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities for payment of retirement benefits of the petitioner under the following heads :-
(a) For payment of full pension to the petitioner in view of the provisions contained under Rule-
156(2) of the Bihar Pension Rules on the deduction of account of provisional pension already paid to the petitioner on the ground that if Bihar Pension Rules provides for payment of pension to a retired employees on the basis of his last salary drawn on the date of retirement had he not been placed under suspension;
(b) Gratuity;
(c) Leave encashment;
(II) For issuance of an appropriate writ in the nature Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 2/10 of MANDAMUS, commanding and directing the Respondent Authorities for payment of the aforesaid amount to the petitioner with interest on the ground that despite the provisions contained under the Bihar Pension Rules and the judgment of the Hon‟ble Supreme Court in the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and others, the Respondent Authorities have not reimbursed the aforesaid amount to the petitioner till date. (III) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be found entitled under the facts and circumstances of the case."
2. The brief facts of the case are that the petitioner was initially appointed as an Assistant Engineer in the then Public Works Department in the year 1980. While he was posted as Superintending Engineer in the Rural Works Department, Works Circle- Siwan, a raid was conducted on 22.08.2013 in the premises of the petitioner and pursuant thereto Vigilance P.S. Case No. 50 of 2013 dated 22.08.2013 was registered against him for the offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, which is pending before the Vigilance Court.
3. In view of the fact that the petitioner being a public servant was found in possession of property disproportionate to his known sources of income, he was put under suspension vide notification dated 18.02.2014 issued by the State Government in Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 3/10 exercise of its power conferred under Rule 9(1)(c) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005.
4. Thereafter, the State Government decided to hold departmental proceeding against the petitioner. The petitioner was also served with a copy of the charge-sheet dated 10.02.2014. However, before the departmental proceeding could conclude, the petitioner superannuated from service on 31.05.2015. After superannuation, he submitted his pension papers to the respondent authorities for payment of his retirement benefits.
5. It is submitted by the learned counsel for the petitioner that after superannuation though the petitioner has been paid 90% provisional pension and provident fund amount, the balance 10% pension, full gratuity and the admissible leave encashment have not been paid to him so far. He contended that pendency of criminal case or departmental proceeding cannot be a ground to deprive the retired employee from getting his 90% gratuity and full leave encashment in terms with Rules 43(b) and
(c) of the Bihar Pension Rules, 1950 (for short „Pension Rules‟). He submitted that in the matter of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Ors. [(2013) 12 SCC 210], the Supreme Court has held that unless a finding of guilt is recorded Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 4/10 against a Government servant, his pensionary benefits cannot be reduced. He contended that Rule 43(b) of the Pension Rules, which confers power upon the State to withheld or withdraw pension or any part of it whether permanently or for specified period, can be exercised only after the concerned Government servant is found guilty in departmental or judicial proceeding. In this regard he has placed reliance on a Division Bench judgment of this Court in Md. Idris Ansari Vs. State of Bihar & Ors. [1994 (1) PLJR 809]. He submitted that on challenge made by the State of Bihar against the Division Bench judgment of this Court in Md. Idris Ansari (Supra), the Supreme Court in State of Bihar & Ors. Vs. Md. Idris Ansari [AIR 1995 SC 1853] clearly held that before the power under Rule 43(b) of the Pension Rules can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in the departmental proceeding or judicial proceeding the concerned Government servant is found guilty of gross misconduct.
6. He submitted that there is no provision in the Pension Rules for withholding the leave encashment. He submitted that as Division Bench of this Court in the case of Bajrang Deo Narain Sinha Vs. State of Bihar [1999 (3) PLJR 949] held that the pensionary dues payable to the appellant, including gratuity which Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 5/10 is also pension within the meaning of the Pension Rules cannot be withheld till such time as an order is passed under Rule 43(b) of the Pension Rules. He contended that the Division Bench further held that the leave encashment dues also cannot be withheld since that is paid in lieu of unutilized leave and, therefore, partakes the character of salary.
7. Per contra, learned counsel for the State submitted that the petitioner has already been sanctioned his retiral benefits to which he has been found entitled to. He contended that since a criminal proceeding as well as a departmental proceeding is pending against him, a decision would be taken in respect of his balance 10% pension, full gratuity and admissible leave encashment only after the conclusion of the proceedings. He contended that withholdment of 10% of pension, admissible leave encashment and full gratuity is permissible in view of the law laid down by a Division Bench of this Court in the matter of Vijay Kumar Mishra Vs. The State of Bihar & Ors. [2017(1) PLJR 575]. In this regard, he has also placed his reliance on a Division Bench judgment of this Court delivered on 22.03.2017 in State of Bihar & Ors. Vs. Mozaffar Hassan (LPA No. 720 of 2014) and a single Judge decision of this Court delivered on 20.08.2016 in Ram Prakash Yadav Vs. The State of Bihar & Ors. (C.W.J.C. Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 6/10 No. 448 of 2013).
8. In reply, learned counsel for the petitioner submitted that in case of Vijay Kumar Mishra (Supra) the Division Bench of this Court has not held that the entire gratuity of retired Government servant can be withheld. He submitted that the Division Bench in State of Bihar & Ors. Vs. Mozaffar Hassan (Supra) placed reliance upon Vijay Kumar Mishra (Supra) for holding that 100% gratuity of a Government servant can be withheld where a departmental proceeding or a judicial proceeding is pending against him whereas in Vijay Kumar Mishra (Supra) the Division Bench simply held that withholdment of gratuity is permissible without fixing the quantum to what extent it can be withheld. He contended that in Ram Prakash Yadav (Supra) the attention of the learned single Judge was not drawn towards Rule 43(c) of the Pension Rules, which prescribes that in case of pendency of departmental or judicial proceedings the amount of provisional pension shall in no case be less than 90%. He contended that in none of the aforesaid judgments relied upon by the learned counsel for the State the attention of this Court was drawn towards the earlier Division Bench judgment of this Court in the matter of Bajrang Deo Narain Sinha (Supra) wherein it was categorically held that the pensionary dues payable to the Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 7/10 appellant including gratuity, which is also pension within the meaning of Pension Rules cannot be withheld till such time as an order is passed under Rule 43(b) of the Pension Rules. The Division Bench further held that leave encashment dues cannot be withheld since that is paid in lieu of unutilized leave and, therefore, partakes character of salary.
9. I have heard learned counsel for the parties and carefully perused the relevant provisions of the Pension Rules and the decisions cited on behalf of the parties.
10. In exercise of the powers conferred under Article 309 of the Constitution of India, the Government of Bihar has added a new sub rule 43(c) after sub-rule 43(b) of the Pension Rules with effect from 19th July, 2012, which reads as under :-
"43(c) Where the departmental proceeding or judicial proceeding, in which the 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 per cent)."
(emphasis mine)
11. It would be further relevant to refer to Rule 27 of the Bihar Pension Rules, 1950, which reads as under :-
"27. Pension includes a gratuity."Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017
8/10
12. From a conjoint reading of the aforesaid Rules 43(c) and 27 of the Pension Rules, it would be evident that if the departmental proceeding or the judicial proceeding initiated during service period of the Government servant is not concluded till the retirement of the Government servant, the amount of provisional pension which includes gratuity shall be less than the maximum admissible amount but shall in no case be less than 90%. I further find that there is no provision under the Pension Rules which prescribes for withholdment of leave encashment.
13. Keeping in mind the fact that the issue raised in the present writ application is of extreme importance as also the fact that the relevant Rule 43(c) of the Pension Rules which came into force with effect from 19th July, 2012 was not brought to the notice of the Division Bench in Vijay Kumar Mishra (Supra) and of the learned Single Judge in Ram Prakash Yadav (Supra) as also the fact that the earlier Division Bench Judgments of this Court in Bajrang Deo Narain Sinha (Supra) and Idris Ansari (Supra) and the decision of the Supreme Court in State of Bihar Vs. Md. Idris Ansari (Supra) were not brought to the notice of the Court in the cases relied upon by the learned counsel for the State and the fact that the two Division Benches of this Court in Bajrang Deo Narain Sinha (Supra) and Vijay Kumar Mishra (Supra) have Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 9/10 given conflicting decision in respect of withholdment of amount of gratuity and leave encashment where a departmental or judicial proceeding is pending against a Government servant even after retirement, I am of the opinion that the matter is required to be referred to a Larger Bench for decision. I formulate the following questions for decision by the Larger Bench :-
(i) whether the law laid down by a Bench of this Court in Vijay Kumar Mishra (Supra) holding that the leave encashment of a Government employee besides gratuity can be withheld under the provisions of the Bihar Pension Rules has been correctly laid down in view of the fact that there is no provision in the said Bihar Pension Rules in this regard providing for withholdment of leave encashment also ?
(ii) Whether the law laid down by a Bench of this Court in The State of Bihar & Ors. Vs. Mozaffar Hassan (Supra) and by a learned Single Judge in Ram Prakash Yadav (Supra) holding that the entire amount of gratuity and leave encashment can be withheld under the provisions of the Bihar Pension Rules in view of the law laid down in Vijay Kumar Patna High Court CWJC No.15328 of 2016 (7) dt.16-05-2017 10/10 Mishra (Supra) has been correctly laid down specially in view of the statutory provision as contained in Rule 43(c) of the Bihar Pension Rules?
14. I also refer the entire matter to the Larger Bench which may re-frame the questions and/or add further questions as it may deem fit and proper.
15. Let the record be placed before Hon‟ble the Chief Justice on administrative side for needful.
(Ashwani Kumar Singh, J) Pradeep/-
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