Patna High Court - Orders
The State Of Bihar vs Jyotimary Madhuri, on 25 April, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1580 of 2019
In
Civil Writ Jurisdiction Case No.10056 of 2014
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The State of Bihar
... ... Appellant/s
Versus
Jyotimary Madhuri
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. P.K. Verma, AAG 3
Mr. Saroj Kumar Sharma (Ac To AAG 3)
For the Respondent/s : Mr. Vijoy Nandan Sahay
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
7 25-04-2023Heard Mr. P.K. Verma, learned AAG -3 for the State of Bihar/appellant and Mr. Vijoy Nandan Sahay for the respondent.
The State of Bihar/appellant has challenged the judgment dated 14.03.2018 passed by the learned Single Judge in CWJC No. 10056 of 2014 setting aside the decision of the authority to withhold the pension of the husband of the appellant on account of his conviction in one of the cases of fodder scam.
The order passed by the authority was based on Patna High Court L.P.A No.1580 of 2019(7) dt.25-04-2023 2/6 the provisions contained in 43 (a) and (b) of the Bihar Pension Rules.
The learned Single Judge has held that there could be withholding of pension under 43 (a) only if it relates to future good conduct of an employee. 43 (a) and 43 (b) operate in two different fields.
In the present case, the husband of the respondent superannuated in the year 1995. A criminal case was lodged in the year 1996 naming the husband of the appellant as one of the accused in which charge- sheet was submitted way back in the year 2000. The conviction against the husband of the appellant was recorded in 2009. The order withholding the pension by the authority concerned has been passed in the year 2011.
The learned Single Judge after having held that for a Government authority to withhold or withdraw pension of a pensioner, who has been convicted of serious crime or is guilty of grave misconduct, it need Patna High Court L.P.A No.1580 of 2019(7) dt.25-04-2023 3/6 not await till the decision in appeal. ( Dr. Bajrang Deo Narain Sinha vs. The State of Bihar & Ors. 2013 (2) PLJR 521).
However, with respect to any offence having been committed during the service tenure of the pensioner, the provision which would apply is 43 (b) and not 43 (a) of the Pension Rules.
By referring to a judgment of the Division Bench in Nityanand Kumar Singh vs. The State of Bihar and Ors. 2016 (2) PLJR 315, which was based on a referral by a learned Single Judge, it was found that the serious crime or grave misconduct described in Rule 43 (a) is not relatable to the conduct of a pensioner during service or service rendered on re-employment. It is only a conduct expected of a pensioner in future after he starts getting pension.
The proviso after 43 (b) is applicable only in cases of offence committed during the tenure of the service of the pensioner. A care has been taken that a Patna High Court L.P.A No.1580 of 2019(7) dt.25-04-2023 4/6 departmental proceeding or a judicial proceeding by virtue of which the pension can be withdrawn or withheld should be relatable to an event which took place not more than four years before the institution of such proceeding.
With respect to judicial proceeding, it has been specified that in cases of complaint, the relevant date would be the date of filing of complaint and in case of FIR, the relevant date would be submission of charge- sheet.
Rule 43 (a) nowhere refers to any departmental proceeding instituted earlier or to be instituted later. In such situation, the factors cannot be governed by proviso A (II) to Rule 43 (b) which only applies to initiation of departmental proceeding/judicial proceeding by the Government after an employee has retired.
Thus, holding that Section 43 (a) is not at all relatable to any past service or misconduct of the pensioner, the part of the order of the authority invoking Patna High Court L.P.A No.1580 of 2019(7) dt.25-04-2023 5/6 the provisions of Section 43 (a) was found to be bad in the eyes of law.
After having taken note of the dates when the FIR was registered and the date of superannuation of the pensioner as also the date when charge-sheet was submitted and ultimately conviction was recorded, the learned Single Judge has held that the condition which is to be taken care of under 43 (b) specially is that the event should not be of an antiquity of more than four years when such proceeding is initiated i.e. when charge- sheet is submitted.
Testing on this ground as well, the order of the authority withholding the pension of the pensioner was not found to be justified.
Mr. P.K. Verma, learned AAG submits that Rule 43 (a) need not be compartmentalized for conviction of grave misconduct of a pensioner post-retirement.
No doubt, future good conduct of a pensioner is a condition precedent for his continuing to get pension Patna High Court L.P.A No.1580 of 2019(7) dt.25-04-2023 6/6 but the authority of the Government to withdraw or withhold pension after the superannuation of the pensioner need not be relatable to a misconduct or grave offence leading to his conviction of a period post- retirement.
He submits that there could not be any trammeling over the power of the provincial government to withhold the pension in case of any grave misconduct or conviction of a pensioner, be it for any offence or misconduct committed prior to his superannuation or later in point of time.
He further submits that he shall bring case laws in support of the aforenoted contention.
Re-notify on 2nd of May, 2023.
(Ashutosh Kumar, J) (Harish Kumar, J) krishna/shivank U