Ram Bahadur Sinha v. State of Bihar — 1994 DIGILAW 303 (PAT)

JUDGMENT S. N. Jha, J. This writ petition has been filed challenging the validity of the order dated 4th May 1993 by which the amount of pension and gratuity of the petitioner has been reduced by 100 % under Rule 139 of the Bihar pension Rules (in short, 'the Pension Rules' or 'the Bihar Rules') and the order dated 11th May, 1993 by which a proceeding under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 has been initiated against him. During the pendency of the case a corrigendum order was issued on 29th June, 1993 to the effect that the aforesaid proceeding will be seemed to be under Rule 43(b) of the Pension Rules. During course of hearing of the case, Counsel for the State stated that the order dated 4th May 1993 will be withdrawn. Thus the validity of the proceeding under Rule 43(b) of the Pension Rules alone survives for consideration. 2. The petitioner retired as Chief Engineer in the Water Resources Department of the State Government on 30th November 1991. He was served with a notice dated 21st May 1992 to show cause as to why recovery of the amount of loss to the tune of Rs.24 lakhs which the State Government, has suffered on account of the purchases made by the petitioner during the tenure of his service be not made from his pension and gratuity. The petitioner filed his show cause denying the allegations. The State Government, however, came out with the aforementioned orders dated 4th May, 1993 and 11th May 1993. It is not necessary to set out the facts relating to the charges or the explanation there to. 3. Mr. S. J. Mukhopadhayaya, learned counsel for the petitioner, did not dispute the power of the State Government to withhold pension under Rule 43(b) of the Pension Rules. According to him however, such withholdment cannot exceed 10% of the amount of pension. According to him further, so far as the gratuity is concerned, the same cannot be withheld at all. In support of the latter plea, he placed reliance on D.V. Kapoor v. Union of India: (1990)4 SCC 314 and FR. Jesuratnam v. Union of India: 1990 (Supp) SCC 640. According to him further, so far as the gratuity is concerned, the same cannot be withheld at all. In support of the latter plea, he placed reliance on D.V. Kapoor v. Union of India: (1990)4 SCC 314 and FR. Jesuratnam v. Union of India: 1990 (Supp) SCC 640. Faced, however, with the latter decision of the Supreme Court in Jarnail Singh v. the Secretary, Ministry of Home Affairs and others: AIR 1994 Supreme Court 1484 which has held that the expression 'pension' in Rule 9 of the Centeral Civil Series (pension) Rules, 1972 (in short, 'the Central Rules') includes gratuity and to that extent has overruled the contrary view taken in the aforesaid two decision, Mr. Mukhopadyaya submitted that the decision has been rendered in the context of the Central Rules and cannot be taken to be an authority on the point in the context of the Bihar Pension Rules. Counsel submitted that the decision in Jarnail Singh (supra) was rendered on a finding that the term 'pension' in the context of the Central Rules is not used in contradistinction to gratuity, Counsel contended that in the Bihar Rules, 'pension' and 'gratuity' have been assigned opposite meanings and, therefore, pension cannot be said to include gratuity. 4. I shall first take up the question as to whether the State Government is competent to withhold 100% pension of a retired Government servant. Power of withholding pension is contained in Rule 43(b) of the Pension rules. 4. I shall first take up the question as to whether the State Government is competent to withhold 100% pension of a retired Government servant. Power of withholding pension is contained in Rule 43(b) of the Pension rules. The said Rule reads as follows:- "43(b) The State government further reserve to themselves the right of with holding 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 of judicial proceeding to have been guilty of grave misconduct; 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; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be respect of in event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and it 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. Explanation - For the purposes of the rule(a) departmental proceeding shall be deemed to have instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from 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 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" 5. From bare perusal of the above rule it is clear that the State Government is empowered to withhold or withdraw the whole or part of amount of pension, permanently or for specified period pensioner is found guilty of grave misconduct in any departmental or judicial proceeding during the tenure of his service including the service rendered on reemployment. Likewise the State Government is also competent to make recovery of the amount of pecuniary loss whole or part of it- from pension if the pensioner is found to have caused pecuniary loss to the Government by misconduct or negligence during tenure of his service including service referred on reemployment. According to counsel for the petitioner, however, any part of pension can be with held or withdraw or recovery made only after the petitioner has been found guilty of grave misconduct or having caused pecuniary loss to the Government by misconduct or negligence in a departmental or judicial proceeding. Counsel in this connection referred to the proviso and explanation appended to the Rule and submitted that having regard to the fact that the Rule envisages certain restrictions and limitation upon the power of the State Government in the matter of initiation of either departmental or judicial proceeding, it cannot be said that the power of withholding or withdrawing pension or recovery thereof is unfettered and absolute. 6. There can be no dispute that departmental or judicial proceeding for the purpose of exercise of power under Rule 43(b) can be initiated within the parameters of the restrictive provisions as contained in the Proviso and the Explanation to the Rule. There cannot be any dispute either that withholdment or withdrawal of the amount of pension or its recovery as a measure of punishment can be made only after the person concerned has actually been found guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during the tenure of his service. The question for consideration, however, is whether the State Government is not competent to withhold whole or part of the amount of pension as an interim measure, where the depart mental or judicial processing has already been institutes or where a decision to institute the same has already been take. The answer, in my opinion, has to be in the affirmative. The answer, in my opinion, has to be in the affirmative. Withholding whole or part of the pension pending departmental or judicial proceeding would be just like placing a Government employee under suspension pending departmental proceeding or criminal case against him. It is well known that any such order of suspension as an interim measure in contradistinction to 'suspension' as a penalty under Rule 49 of the Civil Services (Classification Control & Appeal) Rules, 1930 of rule 2 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules 1935, is not penal in nature Just as an order or suspension pending departmental proceeding or criminal case does not visit the person concerned with any evil consequences inasmuch as in the evil of his being found not guilty of the charge he becomes entities to all the service benefits including pay and allowances etc. for the intervening period, similarly, any order exonerating the person concerned of the charges in the departmental or judicial proceeding with in the meaning of Rule 43(b) would entitle him to full pension Therefore , withholding whole or part of pension as an interim measure during the pendency of the proceeding or in contemplation these of cannot be said to be penal in the eye of law. The contention that pension cannot be withheld without recording a finding in respect of misconduct or negligence in a departmental or judicial proceeding thus, cannot be accepted,. 7. Learned counsel for the petitioner drew our attention to circulars of the State Government which provide for payment of provisional pension at the rate of 90% pending departmental proceedings and submitted that in terms of the said circulars the State Government is bound to pay 90% pension to the petitioner notwithstanding initiation of the impugned proceeding under Rule 43(b). I do not find any substance in this contention either Firstly, there is no conflict between the provisions of Rule 43(b) and the circulars referred to by the counsel, and secondly, even if such conflict were there, the circular: to the extent of conflict cannot prevail over the Rules which are statutory in character. It is well settled that circulars or executive orders of the Government con not override statutory provisions contained in any Act or the Rules. I have already indicated above that Rule 43(b) contemplates withholding of whole or part of the pension as an interim measure. It is well settled that circulars or executive orders of the Government con not override statutory provisions contained in any Act or the Rules. I have already indicated above that Rule 43(b) contemplates withholding of whole or part of the pension as an interim measure. The circulars referred to by the learned counsel also contemplate withdrawing of 10% pensions as an interim measure. This is generally and ordinarily to be done. However, that does not mean that in each and every case, irrespective the nature of the allegations and the attending factds, 90% pension should be released as a matter of course or right. The circulars merely 'provide' for payment of provisional pension. They do not entitle the persons concerned to receive provisional pension as of right. At best, It cannot be said that in terms of the circulars, they are entitled to consideration as to whether they should be allowed provisional pension at the rate of 90% or not But the circular cannot be interpreted to confer any right upon the person to receive the provisional pension as a mater of course Any such interpretation would be in derogation of the provision of Rule 43(b) which expressly provides for withholding of "a pension of any part of it ".meaning thereby the whole or part of the amount of pension I am , therefore ,unable to accept the contention of the learned counsel that withhold ment cannot exceed 10% in all cases. I, accordingly, hold that while ordinarily and generally the State Government should pay the provisional pension at the rate mentioned ion the circulars pending departmental or judicial proceeding, in appropriate cases, it is open to it to release a lesser provisional pension or nothing at all i.e. withheld whole of it. 8. While upholding power of the State Government to withhold whole or part of pension as an interim measure, the need of a retired government servant to get his due in time cannot be undermined. The income of a Government employee upon his retirement comes to zero A Government employee facing departmental or criminal proceeding or suspension during the tenure of his service is entitled to certain allowances but he may not get anything during the entire course of departmental or judicial proceeding under rule 43(b) after his retirement,. The income of a Government employee upon his retirement comes to zero A Government employee facing departmental or criminal proceeding or suspension during the tenure of his service is entitled to certain allowances but he may not get anything during the entire course of departmental or judicial proceeding under rule 43(b) after his retirement,. This may make his survival difficult Therefore, while conceding the power to the State Government to withhold whole or the amount of pension, I must observe that the said power should be resorted to only in rarest of the rare cases . Ordinarily and generally where the allegations are not serious, only 10% pension should be withheld as provided in the government circulars on the point. In more serious cases, of course, the Government may consider withholding more amount. Needless to say that while taking decision in the matter of release of provisional pension or withholding part of it. The Government is expected to consider the matter objectively and judiciously. 9. Another way of protecting the interest of the retired Government servant is to fix time limit for the conclusion of the impugned proceeding No hard and fast rule can be laid down as to the time limit within which the proceeding must be disposed of .It would depend on facts of each case, the attending circumstances, the nature of the charges, volume of the evidence as may have to be produced" the conduct of the parties and so on. However, it is always open to the person concerned to approach the Court for appropriate direction for time bound conclusion of the proceeding, should the same be unnecessarily and unreasonable delayed or protracted. 10. Now I shall take up second point namely, whether gratuity too can be withheld either as a measure of punishment upon adverse finding in a departmental or judicial proceeding within the meaning or Rule 43 (b) or as an interim measure pel1ding such proceeding. Rule 43(b), no doubt, does not in terms refer to 'gratuity'. That, in my opinion, it not be all and end all matter. As would appear from the definition clause under Rule 27 of the Pension Rules, pension includes gratuity. The same definition has been given to the terms in the Bihar Service Code under Rule 35. Rule 43(b), no doubt, does not in terms refer to 'gratuity'. That, in my opinion, it not be all and end all matter. As would appear from the definition clause under Rule 27 of the Pension Rules, pension includes gratuity. The same definition has been given to the terms in the Bihar Service Code under Rule 35. In Jarnail Singh v. The Secretary, Ministry of Home Affairs (supra) their Lordships had occasion to consider the same question in the context of Rule 9 of the Central Pension Rules, the material part of which reads as under: "9. Right of President to withhold or withdraw pension (1) the President reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government if: in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re employment after retirement. Xxx xxx xxx" The definition of the term 'pension' in the Central Rules is as follows : "Pension includes gratuity except when the term Pension is used in contradistinction to gratuity." 11. It would appear that while Rule 9 of the Central Rules is couched in exactly the same language as Rule 43(b) of the Bihar Rules. the definition of the term 'pension' in the two Rules is also the same with the only difference that in the Central Rules what is - implicit has been made explicit by providing that except where the two terms, 'pension' and gratuity are used in different sense pension would not include gratuity. In other words, ordinarily the term 'pension' wherever it occur in the Rules would also include gratuity, but where they have been used in opposite sense or have been assigned opposite meanings pension would not include gratuity. Their Lordships upon consideration of the said two Rule held that the amount of gratuity can also be withheld by the president under Rule 9. Their Lordships upon consideration of the said two Rule held that the amount of gratuity can also be withheld by the president under Rule 9. It may be stated here that in that case the entire amount of pension and gratuity had been withhold on permanent basis by way of punishment and the only question for consideration was whether the payment of gratuity also could be withheld by way of punishment for recovery of loss sustained by the Government. The point thus in my opinion is fully covered by the above decision of the Apex Court. 12. Learned counsel for the petitioner, however, submitted that the terms' pension' and 'gratuity' have not been used in the same sense in the Bihar Rule and, therefore, being in contradistinction to each other, pension does not include gratuity and thus, the power under Rule 43(b) cannot be extended to with holding of gratuity as well Counsel referred to the various provisions of rules 46(b), 54 and 87 which make specific reference to gratuity and other allowances. There is nothing in the said Rules to suggest that the term 'gratuity' has been used in contradistinction to pension. They envisage different situations There is nothing there in to suggest that the amount of gratuity cannot be withheld under Rule 43 (b). 13. Counsel for the petitioner also referred to certain circulars of the State Government which provide for payment of the entire amount of gratuity. It was submitted that is view of the said circular the Government is not competent to withhold any portion of the gratuity under any circumstance. I have already stated above that the executive order and circulars of the Government have to be read in harmony with the provisions of the statute and not so as to override the same. In the case of Dinnath Prasad v. The State of Bihar: 1986 PLJR 405, relied upon by learned counsel for the State, their Lordships dealing with the same plea observed as follows: "So far, the circular of 31st July 1980 mandating the release of the entire gratuity within six months of the date of retirement, which cannot be withheld under any circumstances, must be read in the light of the Bihar Pension Rules. There is no period of limitation to conclude a particular type of departmental proceeding provided under the Bihar Pension Rule. There is no period of limitation to conclude a particular type of departmental proceeding provided under the Bihar Pension Rule. The Circular has to be subservient to the statutory rules and cannot have an independent role de hors the statutory rules." I find myself in complete agreement with the above observations. 14. I am aware of decisions of the Courts including the Supreme Court that gratuity is not a bounty which is paid 'gratuitously and if an employee has earned it for his long and meritorious service, it should not be denied to him even though at the end of the service he is found guilty of serious misconduct. (See, for example, AIR 1962 Supreme Court, 673).However, it may be noted that those decision have been rendered in the context of industrial workers while considering disputes regarding gratuity scheme etc. for them. The ratio of those decisions has no application to Government servants who are governed by the respective Rules. In fairness to learned counsel for the petitioner I must say that he did not take that line of argument. 15. I would, accordingly, hold that it is open to the competent authority of the State Government to withhold whole or part of the amount of gratuity in appropriate cases under Rule 43(b) of the Bihar Rules. I Would, however, hasten to reiterate that the power of initiation proceeding and withholding whole or part of gratuity or pension during the pendency of the proceeding should be done with cars and caution. Pension and gratuity are properties of a Government servant the right to receive which should not be taken away in a casual manner. As held in Deoki Nandan Prasad v., The State of Bihar : AIR 1984 Supreme Court 1560 a Government servant is the fall of his life should not be exposed to unnecessary deprivation and should be spared of a costly litigation to claim what is justly due to them. 16. I would, accordingly, direct the respondents to conclude the proceeding initiated against the petitioner by resolution date 11th May 1993 read with resolution dated 29th June, 1993, within four months from the date of the show cause by the petitioner subject of course, to his cooperation with the authority concerned. If the show cause has already been filed by him, the period shall run from the date of production of a copy of this order. 17. If the show cause has already been filed by him, the period shall run from the date of production of a copy of this order. 17. In the result, the writ application is dismissed but subject to the observations and directions as mentioned above. Narayan Roy, J.- I agree. Application dismissed.