Patna High Court
Param Hans Kumar Singh vs The State Of Bihar And Anr on 17 November, 2022
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6478 of 2018
======================================================
Param Hans Kumar Singh Son of Late Surendra Singh, Resident of Village-
Bikrampur, P.S.-Fatuha, District-Patna.
... ... Petitioner/s
Versus
1. The State Of Bihar through Commissioner Commercial, Taxes cum
Principal Secretary, Commercial Taxes Department, Government of Bihar,
Patna.
2. The Accountant General, of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Santosh Kumar Sinha No.2, Advocate.
: Mr. Arvind Prasad Singh, Advocate.
For the Accountant General : Mr. Vivekanand Kumar, Advocate.
For the Respondent/s : Mr. Hari Shankar Rai, AC to AG.
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 17-11-2022
Heard Mr. Santosh Kumar Sinha No.2, learned counsel
for the petitioner duly assisted by learned counsel Mr. Arvind
Prasad Singh, Mr. Vivekanand Kumar, learned counsel for the
respondent Accountant General and Mr. Hari Shankar Rai, learned
Assistant Counsel to Advocate General for the State.
2. The present writ application has been filed seeking
direction upon the respondents to ensure payment of post retiral
dues, including gratuity, leave encashment with statutory interest
and other benefits, which has been withheld by the order issued by
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
2/13
the Commissioner Commercial Taxes cum Principal
Secretary, Commercial Taxes Department, Government of
Bihar, Patna, as contained in letter no.6/PE U 14-15/2012,
670, dated 01.03.2013.
3. The short facts in narrow compass is that the
petitioner joined the service on 12.09.1984, on the post of
Commercial Taxes Officer in the office of Joint
Commissioner Commercial Taxes, Patna Division, Patna.
After completion of probation, he was posted in Urban Circle
Officer, Jamshedpur, on the post of Commercial Taxes
Officer. It is further submitted that somehow or other on
account of certain allegation, the petitioner was charged in the
Fodder Scam bearing Case No. RC63A/96 (Pat). During the
pendency of the aforesaid criminal case, the petitioner retired
from his service on 31.12.2012 from the office of the Joint
Commissioner, Commercial Taxes (Audit) Patna.
4. Learned counsel for the petitioner submits that
after his superannuation, the petitioner has submitted
requisite documents before the authority concerned for grant
of his retiral benefits, however, the petitioner has been
allowed only pension to the extent of 90 per cent and neither
amount of the gratuity nor the leave encashment has been
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
3/13
bestowed upon him. He further submits that by the order of
the Commissioner Commercial Taxes cum Principal
Secretary, dated 01.03.2013, the claim of the petitioner was
considered and having found that the prosecution has been
sanctioned against the petitioner in Fodder Scam, which has
not been disposed of till date, the amount of gratuity has been
withheld and he has been allowed only 90 per cent of pension
in the light of the resolution no.3014 dated 31.07.1980, issued
by the Finance Department. He also submits that after the
retirement of the petitioner the amount under head of leave
encashment was sanctioned, but the same has also not been
paid to the petitioner.
5. On the other hand, learned counsel for the State
by referring to the averments made in the counter affidavit
submits that in exercise of the power conferred in Article 309
of the Constitution of India, the amendment has taken place
in Bihar Pension Rules 1950 by amending Rule 43 (d) which
clearly empowers the State Government that "if any
departmental or Judicial Proceeding is pending against the
government servant at the time of retirement, full amount of
gratuity may be with held till the final conclusion of the
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
4/13
Departmental or Judicial Proceeding and issuance of order
accordingly.
Provided that where departmental proceedings has
been instituted under Rule 19 of Bihar Government Servants
(Classification, Control & Appeal) Rules, 2005 (As amended
time to time) for imposing minor penalties under Rule 14 (i)
(ii) and (v) of the said rules, payment of gratuity may be
made to the government servant."
6. He next submits that there is no prayer for
quashing of the impugned order dated 01.03.2013 and in
absence of such prayer no relief can be granted to the
petitioner. He also submits that the criminal case is still
subjudice and there is every possibility that the learned
Competent Court may pass order of recovery against the
petitioner, inasmuch as the petitioner is an accused of
"Animal Husbandry Scam" and in such circumstances order
passed by the Commissioner Commercial Taxes cum
Principal Secretary, Commercial Department, Government of
Bihar, has been passed in accordance with law.
7. The issue involved in the present matter has
already been set at rest by the judgment rendered by the
learned Full Bench of this Court in the case of Arvind
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
5/13
Kumar Singh Vs. State of Bihar since reported in 2018 (2)
PLJR 933, it would be apt to quote Paragraph nos. 25 to 29
which is as follows:-
"25. When this amendment was incorporated
on 19th of July, 2012, the State Government was aware of
the earlier statutory circular dated 31st of July, 1980 and
the administrative circulars of 1974, but while
incorporating a provision in the rule itself by amending it,
i.e. Rule 43(c), the rule maker consciously used the word
"pension" only without carving out an exception with
regard to withholding of gratuity. The omission of the
word "gratuity" in the amended provisions of Rule 43(c),
in our considered view, is a deliberate and conscious
omission on the part of the rule maker. The rule maker
knew that pension includes gratuity and when they speak
about payment of provisional pension, the rule of
interpretation mandates us to hold that it would mean
payment of not only provisional pension but also gratuity
until and unless the rule specifically provides for
withholding of gratuity. That being so, once Rule 43(c)
was incorporated into the statute and when Rule 43(c)
does not empower the Government to withhold gratuity
and when gratuity includes pension, in view of the
provisions of Rule 27, the contention of the State
Government and the learned Advocate General cannot be
accepted. We have to hold that once Rule 43(c) was
incorporated in the statutory rule, the effect of the earlier
statutory notification dated 30th of July, 1980 is wiped out,
nullified or deemed to have been repealed. Incorporation
of Rule 43(c) on 19th of July, 2012 will have the effect of
annulling the earlier notification dated 30th of July, 1980
or the circulars of 1974 and therefore, once a statutory
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
6/13
provision-Rule 43(c) is incorporated in the rule itself, it
has to be given its full and complete meaning, by adopting
a literal meaning to each and every word used therein,
and if this principle of statutory interpretation is followed,
the contention of the State Government has to be rejected
and we have no hesitation in holding that after coming
into force of the amendment to the Pension Rules by
incorporating Rule 43(c) on 19th of July, 2012, an
employee who is facing departmental inquiry or judicial
proceeding on the date of his superannuation would be
entitled to provisional pension which would include
gratuity to the tune of an amount not less than 90 per cent.
26. Having held so, with regard to pension
and gratuity, we are now required to consider the next
question pertaining to grant of leave encashment to a
retired employee.
27. As far as leave encashment is concerned,
we find that there is no statutory provision, rule or
regulation providing for encashment of Earned Leave.
During the course of hearing, we had asked specific
questions to the counsel appearing in the matters and we
were informed that there is no statutory rule governing
grant of leave encashment. It was stated that it is based
on executive instructions and the statutory provision is
only for granting Earned Leave to a Government
employee.
28. The Bihar Service Code, Chapter-VI deals
with general conditions of leave and from Rule 149
onwards, provisions have been made for grant of various
kinds of leave like Casual Leave, Special Leave, Medical
Leave, Extraordinary Leave, Hospital Leave etc. and
under this Chapter from Rule 227 onwards provisions
have been made for grant of Earned Leave. Under Rule
227 (1) it is stipulated that the Earned Leave admissible to
a Government servant in permanent employment shall be
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
7/13
in accordance to Clause (a) and (b) stipulated therein and
under sub-section 2 it is contemplated that a Government
servant shall cease to earn such leave when the Earned
Leave due to him has reached a particular level. The
method and principle for calculating Earned Leave etc.
are provided in the Rule. Nowhere in this rule is there a
provision for permitting leave encashment. It is for the
first time by an executive instruction bearing No. 4564
dated 6th of July, 1993, that a provision has been made for
encashment of unused Earned Leave after retirement and
in this circular in Paragraph 2 the following stipulations
have been made:--
29. From the aforesaid, it is clear that as far
as leave encashment is concerned, leave encashment is
not provided for in the Pension Rule. Under the Bihar
Service Code, a provision has been made for grant of
Earned Leave and by an executive instruction issued on
6th of July, 1993, a provision is made for encashment of
Earned Leave and while making the said provision a
condition is stipulated that an employee shall not be
granted encashment of Earned Leave till finalization of
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
8/13
the departmental inquiry or the judicial proceeding.
When the terms and conditions with regard to encashment
of leave is not governed by any statutory provision and
when the same is granted by an executive or
administrative decision of the State Government so long
as the administrative decision to withhold encashment of
Earned Leave subsists, then on the happening of such
circumstances, as are contemplated, we see no reason to
hold that leave encashment can be granted even in cases
where the employee at the time of retirement is facing
departmental or judicial proceeding. The law laid down
in this regard in the cases referred to hereinabove do not
consider this aspect of the matter, all the cases proceeded
under the mistaken asumption that the leave encashment
is provided for in the Pension Rules, and, therefore, we
have no hesitation in holding that when an employee is
facing a criminal case or a departmental proceeding, at
the time of his retirement, the Government is well within
its power in withholding leave encashment."
8. This court is conscious of the fact that the
petitioner superannuated on 31.12.2012 and prior to his
superannuation the Rule 43 (c) was incorporated in the Bihar
Pension Rule on 19.07.2012, which reads as follows :-
"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 percent)."
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
9/13
9. It would also to be apt and proper to quote the
relevant paragraph nos.20 to 28 & 33 of the judgment
rendered by learned Co-ordinate Bench of this court, while
dealing with the similar issue, inter alia, regarding the issue
of retrospective application of rule 43 (d) of the Bihar
Pension Rules, in the case of Dr. Aquil Ahmad Vs. State of
Bihar, since reported in 2021 (1) PLJR 293, held as follows:-
"20. To come out of the rigorous of the Full
Bench judgment of this Court the amendments were
brought by substituting Rule 27 and then by inserting one
sub-Rule (d) after Rule 43(c) of the Bihar Pension Rules.
In these circumstances now the question arises as to
whether the substituted provision of Rule 27 and newly
inserted Rule 43(d) of the Bihar Pension Rules vide
Memo No. 77 dated 21.01.2019 may be applied with a
retrospective effect so as to deprive the petitioner from
getting his admissible gratuity amount. This Court has
already quoted the Memo No. 77 dated 21.01.2019 in the
preceeding paragraphs.
21. While dealing with the right of a retired
employee to get his gratuity amount this Court would be
required to take into consideration the relevant provisions
of the Gratuity Act 1972. The background of the coming
into force of the payment of gratuity Act was the fact that
prior to this enactment the different States were having
different enactment with respect to the payment of
gratuity to the employees. It was thought necessary to
have a central law on this subject so as to ensure an
uniform pattern of payment of gratuity to the employees
throughout the Country and it was also required to avoid
different treatment to the employees of the establishments
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
10/13
having branches in more than one State. The Statement of
Objects and Reasons behind enactment of the Payment of
Gratuity Act, 1972 may be referred to in this regard.
According to Section '4' of the Payment of Gratuity Act
the gratuity shall be payable to an employee on the
termination of his employment after he has rendered
continuance service for not less than five years and one of
the modes of termination of the employment is his
superannuation from service. Under Section 4(6)
employer has power to forfeit gratuity payable to an
employee in certain circumstances. Section 4(6) of the Act
of 1972 reads as under:--
"4(6) Notwithstanding anything contained in
sub-section (i),--
(a) the gratuity of an employee, whose
services have been terminated for any act, wilful omission
or negligence causing any damage or loss to, or
destruction of, property belonging to the employer, shall
be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee [may
be wholly or partially forfeited].
(i) if the services of such employee have been
terminated for his riotous or disorderly conduct or any
other act of violence on his part; or
(ii) if the services of such employee have been
terminated for any act which constitutes an offence
involving moral turpitude, provided that such offence is
committed by him in the course of his employment."
27. So far as the retrospective applicability of
a provision contained in a Statute is concerned, again it
is well settled law that the provisions which are brought
by way of an amendment which will have an effect of
depriving a person from getting his vested rights and
Patna High Court CWJC No.6478 of 2018 dt.17-11-2022
11/13
taking away the benefits such as post retiral dues cannot
be given a retrospective effect unless it is so provided
specifically in the Statute/Rule or by necessary
intendment.
28. On the issue of retrospective applicability
of a statute or statutory provision touching upon the
existing rights Lord Blanesburg while delivering the
opinion of the Privy Council in the case of Delhi Cloth &
General Mills Ltd. v. C.I.T., Delhi reported in AIR 1927
PC 242 observed "Provisions, which, if applied
retrospectively, would deprive of their existing finality or
orders, which, when the statute came into force, were
final, are provisions which touch existing rights.
Accordingly, if the section now in question is to apply to
orders final at the date when it came into force, it must be
clearly so provided".
33. Thus, considering the provisions of the
payment of Gratuity Act, the judgment of Hon'ble Full
Bench of this Court in the case of Arvind Kumar Singh
(supra) and that of Hon'ble Supreme Court in Dr. Hira
Lal's case as also the fact that the amendment in Rule 27
by way of substitution and then by inserting a new
provision such as sub-rule (d) of Rule 43 in the Bihar
Pension Rules 1950 have come into force w.e.f.
21.01.2019the respondents cannot apply those provisions with a retrospective effect so as to take away the vested right of the petitioner to receive his gratuity amount in terms of the settled law in the case of Arvind Kumar Singh (supra). Any judgment of this Court cannot be negated by bringing a legislation much less by way of a rule framed under Article 309 of the Constitution by applying the same with retrospective effect. Such amendment will only be prospective in nature. Judgment of the Hon'ble Supreme Court in Madan Mohan Pathak v. Patna High Court CWJC No.6478 of 2018 dt.17-11-2022 12/13 Union of India reported in (1978) 2 SCC 50 : AIR 1978 SC 803 is an authority on this point. Taking recourse to the amendments the petitioner cannot be deprived of his vested right to receive the gratuity amount in terms of the law laid down by Hon'ble Full Bench in Arvind Kumar Singh (supra) which has been virtually approved by Hon'ble Supreme Court in the case of Dr. Heera Lal (supra)."
10. In view of the aforesaid factual and settled legal position, the order dated 04.03.2013 as contained in Annexure-I, passed by the Commissioner Commercial Taxes cum Principal Secretary, Commercial Department, Government of Bihar, Patna, is held to be unjustified improper and not sustainable in law. The Commissioner Commercial Taxes cum Principal Secretary, Commercial Department, Government of Bihar, Patna, is hereby directed to consider the case of the petitioner afresh for grant of his due retiral benefits, including, gratuity and leave encashment in the light of the aforesaid judgment rendered by the learned Full Bench and Co-ordinate Bench of this Court, as discussed hereinabove.
11. It is needless to say that the entire exercise must be completed within a period of six weeks from the date of receipt/production of this order. If the claim of the petitioner Patna High Court CWJC No.6478 of 2018 dt.17-11-2022 13/13 finds favour, necessary order for payment must be passed within the aforesaid period.
12. Accordingly, the present writ application stands allowed with the aforesaid observation and direction.
(Harish Kumar, J) manoj/-
AFR/NAFR AFR CAV DATE NA Uploading Date 21.11.2022. Transmission Date NA