Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 349 (PAT)

Ganga Bishun Mahto v. State Of Bihar

2001-04-18

RADHA MOHAN PRASAD

body2001
Judgment 1. In this writ petition, the grievance of the petitioner is that he has been arbitrarily kept denied of 10% of his pension, 10% of gratuity and the entire G.P.F. amount on the plea of pendency of a departmental proceeding against him. 2. In short, the relevant facts are that the petitioner initially joined the service as an Engineer Assistant on 23.12.1971 and promoted as Assistant Engineer and later as Executive Engineer. On 19.8.1988 he was placed under suspension and charges were issued initiating departmental proceeding to him on 31.8.1998/ 6.11.1998. The petitioner moved this Court against the order of his suspension in C.W.J.C. No. 7115 of 1998. which was disposed of vide order dated 2.9.1998 (Annexure 9) with a direction to the respondents to conclude the departmental proceeding within a period of six months from that date. When the enquiry was not concluded, the petitioner filed another writ petition, bearing C.W.J.C. No. 4488 of 1999, for quashing of the proceeding itself. This Court, vide order dated 2.8.1999 (Annexure 10) again directed to conclude the departmental proceeding by the end of September, 1999 and also that the final order be passed within the said time. Despite two orders of this Court, the departmental proceeding was not concluded and no final order was passed in the said proceeding. The petitioner was allowed to superannuate on 31.10.1999 and thereafter paid some of his post retiral dues except 10% of pension and 10% of gratuity and full amount of G.P.F. He has also been kept denied of the commutation of pension merely on account of pendency of the said proceeding. 3. It is submitted by the learned counsel for the petitioner that the respondents are not iegaliy justified in withholding the aforementioned dues of the petitioner in view of the law settled by the Division Bench in the case of Bajrang Deo Narain Sinha V/s. State of Bihar, reported in 1999 (3) PLJR 949 which was also followed in the case of Satyendra Narain Sinha V/s. State of Bihar, reported in 1999(3) PLJR 939. 4. 4. Learned counsel for the State, on the other hand, has submitted that in view of the Government circulars, contained in Finance Department Memo No. PC-11- 40-28/74/9144 F; dated 22.8.1974 read with Memo No. PC-11-40-98/74-1120F; dated 31.10.1974 and Finance Department Resolution No. 3014 dated 31st Juiy, 1980, a pensioner against whom a departmental or judicial proceeding is pending is only entitled for payment of 90% of provisional pension. It is submitted that the said circulars have not been taken into consideration by the Division Bench in the case of Bajrang Deo Narain Sinha vs. State of Bihar (supra) and, as such, according to him, there is no infirmity if the payment of 10% of pension, 10% of gratuity, full amount of G.P.F. and commutation of pension of the petitioner have been kept withheld on account of pendency of the said proceeding. 5. In the case of Satyendra Narain Sinha vs. State of Bihar (supra), this Court also considered. the scope of Finance Departments circulars upon which the Counsel- for the State placed reliance for withholding of 10% of pension and gratuity to the petitioner of the said case on account of pendency of departmental proceeding and it was held that the executive order in conflict with the statutory provisions cannot be sustained and, further, that rule 139 cannot be read in isolation which would nullify the effect of rule 43 which empowers to withhold or withdraw the amount of pension or any part thereof permanently or for a specified period, only when the pensioner is found guilty in judicial and/or departmental and not otherwise. It was also held that right to receive pension flows to the officers/employees not because of any order but by virtue of the rules and thus it is right to property under Article 31(1) of the Constitution and by a mere executive order the State has no power to withhold the same. In the case of Sudhir Chandra Sarkar V/s. Tata Iron & Steel Co., reported in AIR 1984 S.C. 1064 upon which reliance was placed, the Apex Court held that pension and gratuity are both retiral benefits ensuring that the workman who has spent his useful span of life in rendering service and who never got a living wage, which would have enabled him to save for a rainy day, should not be reduced to destitution and penury in his old age. As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefits is operative in the industrial establishment. It must not be forgotten that it is not a gratuitous payment, it has to be earned by long and continuous service. The Court also relied upon the observation of the Apex Court in the case of D. S. Nakara & ors. V/s. union of India, reported in AIR 1983 S.C. 130 , that pension is neither a bounty nor a matter of grace depending upon the sweetwill of the employer nor an ex-gratia payment. 6. The Division Bench in the case of Bajrartg Deo Narain Sinha (supra) held that the State Government cannot withoid a, pension or any part thereof till such time an order is passed under Rule 43(b) of the Bihar Pension Rules . According to the Division Bench, it is only in the case of proved misconduct that a part or whole of pension can be withheld. 7. It has been submitted by the learned counsel for the petitioner that, in fact, the so-called departmental proceed- ing after retirement of the petitioner can- not proceed as no order has been passed either extending the service of the petitioner under rule 73 of the Bihar Ser- vice Code or a fresh order in terms of rule 43(b) of the Bihar Pension Rules till date. 8. Learned counsel for the State, on the other hand, has submitted that in view of the Full Bench decision in the case of Shambhu Saran V/s. State of Bihar, reported in 2000(1) PLJR 665 , a departmental proceeding pending at the time the Government servant retires may continue and no specific or express order of the Government to this effect is neces- sary. He has also placed reliance on the decisions in the case of Ram Nandan Singh V/s. State of Bihar reported in 1998(1) PLJR 878, and in the case of Braj Kishore Pd. Shrivastava. V/s. B.S.E.B. reported in 1998(2) PLJR 744, in which the same view has been reiterated by the learned Single Judge. He has also placed reliance on the decisions in the case of Ram Nandan Singh V/s. State of Bihar reported in 1998(1) PLJR 878, and in the case of Braj Kishore Pd. Shrivastava. V/s. B.S.E.B. reported in 1998(2) PLJR 744, in which the same view has been reiterated by the learned Single Judge. It has also been submitted that in the case of Laxmart Prasad Tiwary V/s. State of Bihar, reported in 2000(1) PLJR 1061 , this Court, after noticing the Full Bench decision and various decisions of the Apex Court, including in the case of State of Bihar V/s. Mohd. Idris Ansari, reported in 1995(2) PLJR (S.C.) 51 : 1995 Supp. (3) SCC 56, wherein the Apex Court has considered the scope of rules 43 and 139 of the Bihar Pension Rules and also on the principle decided in various decisions of the Apex Court; like the one in the case of Kirti Bhusan Singh V/s. State of Bihar, reported in AIR 1986 S.C. 2116 : 1986 PLJR (SC) 43 and the recent one in the case of Bhagirathi Jena V/s. Board of Directors, C.S.F.C, reported in (1999) 3 SCC 666 : AIR 1999 S.C. 1841 , in which it has been held that once the appellant had retired from service, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant and that in the absence of such authority, the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement, referred the matter for consideration by a Larger Bench, which is still pending. As such, it is contended that the petitioner is not entitled to any relief in the present writ petition. 9. This Court fails to appreciate as to how the petitioner can be denied of his remaining pensionary dues as well as commutation of pension. In none of the said cases, the question involved was that the pension or gratuity can be withheld even without there being any order passed either under rule 43(b) or under rule 139 of the Bihar Pension Rules . In none of the said cases, the question involved was that the pension or gratuity can be withheld even without there being any order passed either under rule 43(b) or under rule 139 of the Bihar Pension Rules . The said question has directly been answered by the Division Bench in the case of Bajrang Deo Narain Sinha vs. State of Bihar (supra) and the Single Bench decision in the case of Satyendra Narain Sinha vs. State of Bihar (supra), in which the scope of Finance Departments circulars relied upon by the respondents have also been dealt with. Moreover, in the case of State of Bihar vs. Md. Idris Ansari (supra), the Apex Court in paragraph 6 of the judgment has made it clear that : "A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceeding or judicial proceedings the concerned Government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings." 10. Reliance placed on the order relating to reference of the matter to Larger Bench by the learned counsel for the State may be of some substance in answer to the submission of the learned counsel for the petitioner that the socalled departmental proceeding after retirement of the petitioner cannot proceed as no order has been passed either extending the service of the petitioner under rule 73 of the Bihar Service Code or a fresh order in terms of rule 43(b) of the Bihar Pension Rules till date. In view of the fact that this Court has referred the matter on the said question for consideration by Larger Bench in the case of Laxman Prasad Tiwary, it is not considered proper to go into the said question at this stage and the said question shall remain open to be agitated after the disposal of the matter by Larger Bench, if necessary. 11. 11. Learned counsel for the State has not been able to defend the continuance of the departmental proceeding against the petitioner as two orders passed by this Court earlier for conclusion of the departmental proceeding within a fixed time have not been complied. This Court, thus, is of the view that the departmental proceeding initiated against the petitioner before his retirement cannot come in the way of release of his remaining retiral benefits. 12. Learned counsel for the petitioner in course of argument also submitted that the petitioner applied for commutation of pension on 30th September, 2000 i.e. well within one year of his retirement on 31.10.1999, yet he has been kept denied of the said benefit. It is submitted that commutation of pension is dependent on the total pension payable to the petitioner and cannot be sanctioned unless the pension payable to a retired Government employee is first determined. As the respondents have withheld the finalisation of pension on account of socalled departmental proceeding pending against the petitioner, he has been arbitrarily denied of the commutation of his pension now for almost one and half years. It is submitted that in view of various decisions of this Court, the pensioner cannot be denied of the commutation of his pension, especially when the prolonging of the so-called deaprtmental proceeding on the face of it is bad in law. He placed reliance on the decision of the Apex Court in the case of State of Madhya Pradesh V/s. Bani Singh and anr. reported in AIR 1990 S.C. 1308 (paragraph 4). As such, according to the learned counsel, the petitioner is entitled for appropriate relief from this Court for commutation of his pension. In support of the claim of the petitioner for grant of commutation of pension, learned counsel for the petitioner also relied upon the order dated 21.11.1995 passed in C.W.J.C. No. 2121 of 1995 (Dr. R. K. Paswan V/s. The State of Bihar & ors.) and in the case of Bishwa Ranjan Sahay V/s. The State of Bihar, reported in Pat. In support of the claim of the petitioner for grant of commutation of pension, learned counsel for the petitioner also relied upon the order dated 21.11.1995 passed in C.W.J.C. No. 2121 of 1995 (Dr. R. K. Paswan V/s. The State of Bihar & ors.) and in the case of Bishwa Ranjan Sahay V/s. The State of Bihar, reported in Pat. L.R. 1996 Patna 23 and the order passed by the Division Bench in the case of Bageshwari Prasad Sinha V/s. State of Bihar, reported in 1994(2) PLJR 13, wherein it has been held that the application for commutation of pension not processed within a period of one year owing to laches and negligence on the part of the concerned authority requirement of having to submit himself for medical examination should be relaxed by the State in such cases. 13. On the other hand, learned cous- nel for the State has submitted that in the absence of any pleading as to whether the petitioner applied for commutation of pension or not within the stipulated time he is not in a position either to accept or deny the submission advanced by the learned counsel for the petitioner in this regard. He, however, submitted that the petitioner was kept denied of the cornnutation of pension not owing to any negligence or laches on the part of the concerned authority. It was, in fact, on account of pendency of the departmental proceeding and as such, according to the learned counsel for the State, the petitioner will have to face the requirement for medical examination after the expiry of the prescribed period. 14. This Court finds it difficult to accept the said submission of the learned counsel for the State. It is true that the petitioner has not specifically pleaded that he filed an application for commutation of pension well within the stipulated time but if it is a fact that he applied for it well within the stipulated time, then there cannot be any justification for requiring htm to submit himself for medical examination, especially in the facts and circumstances of the present case where there has been gross delay and laches on the part of the concerned authority in disposal of the departmental proceeding despite repeated orders of this Court and keeping the matter withheld without any sanction of law. 15. 15. In the case of Bageshwari Prasad Sinha V/s. The State of Bihar & ors., reported in 1994(2) PLJR 13, a similar question was raised that in view of the fact that the paper for commutation of pension of the petitioner of the said case had not been processed within a period of one year owing to laches and negligence on the part of the authorities of the State of Bihar, the formality of submitting for medical investigation be waived. The Division Bench of this Court held that the petitioner in the said situation may not have to submit himself for medical investigation and directed for processing of the application for commutation of pension filed by the petitioner. 16. This Court thus is of the view that if application for commutation is filed within the stipulated time even without furnishing P.P.O. number owing to laches and negligence on the part of the authorities in finalising the pension, the pensioner shall not have to submit himself for medical investigation and the application for commutation of pension filed by him must be processed soon after finalisation of pension and an order in relation thereto must be passed with utmost expedition. But if application is filed beyond stipulated time, then he shall have to submit himself for medical exarmination, unless in appropriate case his explanation for the delay in filing of the application itself is considered as satisfactory and is condoned. As such, as claimed, when the petitioner has already applied for commutation of pension within the stipulated time and was not disposed of on account of pendency of departmental proceeding and consequential nonfinalisation of pension, he shall not be required to submit himself for medical examination and the said application must be processed and the order in relation thereto must be passed within a period of two weeks from the date of receipt/production of a copy of this order. 17. In the result, the writ application is allowed. 17. In the result, the writ application is allowed. The respondents are directed to issue necessary sanction order/authority for payment of the remaining 10% of the amount of pension and gratuity and the full amount of G.P.F to the petitioner and also necessary sanction order for commutation of pension of the petitioner within two weeks of the receipt/production of a copy of this order, failing which the concerned authority shall not draw his salary and other allowances till the full compliance of this order and shall also be liable to pay cost of Rs. 1,000/- (one thousand) to the petitioner from his own pocket.