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2004 DIGILAW 915 (PAT)

Babulal Mahto v. Bihar State Electricity Board

2004-09-08

MRIDULA MISHRA

body2004
Judgment Mridula Mishra, J. 1. Heard learned counsel for the petitioner and the counsel appearing for the respondents. 2. The petitioner has filed this application for a direction to the respondents for payment of pension and death-cum-retiral gratuity, GPF with interest, Group Insurance and for payment of pay and allowances arising out of fixation of pay of the petitioner in the replacement scale with effect from 1.4.1996 and for release of salary and allowances of the petitioner for the period of deemed suspension from 11.4.1987 to 25.5.1987. The petitioner has also prayed for first time bound promotion with effect from 1.4.1981 and for second time bound promotion on completion of 25 years of his service with effect from 8.11.1992. 3. The petitioner was appointed on the post of Rigger and was posted at Patratu Thermal Power Station under Bihar State Electricity Board (hereinafter referred as the "Board"). His case is that after his superannuation he submitted his pension papers in time to the respondent No. 4, who sanctioned payment of leave salary for 132 days unutilised leave, 90% of the pension but with held 10% of the pension and whole of the death-cum- retiral gratuity. As per 4th Pay Revision Committee two promotion for the whole service of an employee has been provided as anti stagnation measure but no promotion was given to him during his entire period of service. He became eligible for grant of first time bound promotion with effect from 1.4.1981 and for second time bound promotion on completion of 25 years of his service with effect from 8.11.1992. It has been submitted that since the respondent Board has accepted all rules and regulations of the State Government pertaining to the services of its employees, the respondents are duty bound to grant two time bound promotions to the petitioner. It has also been submitted that with holding of 10% of pension and whole of gratuity is illegal as the Board is not competent to with hold whole or part of the amount of pension as well as gratuity. The pension and gratuity are the properties of the government servant and the right to receive it should not and cannot be taken away in a casual manner. The pension and gratuity are the properties of the government servant and the right to receive it should not and cannot be taken away in a casual manner. The petitioners counsel has placed reliance on some unreported decision annexed with the petition as well as the decision in the case of Bajrang Deo Narain Sinha V/s. The State of Bihar and Ors. reported in 1999 (3) PLJR 949. 4. A counter affidavit has been filed by the respondent No. 1, the Board wherein it has been stated that 10% of pension and gratuity could not sanctioned to the petitioner due to pendency of a criminal proceeding against the petitioner is an accused for offences under Secs. 147, 148, 149, 324, 326, 307 and 302 of the Indian Penal Code and sec. 27 of the Arms Act. He was taken into custody and was granted bail in Sessions Trial No. 471/99/S.T. No. 457 of 1999 which is pending for disposal in the Court of ADJ, 7th, Begusarai. 5. Counsel for the Board stated that except 10% of pension and gratuity all other retiral benefits have been paid to the petitioner which are 90% of provisional pension, 45 days extra ordinary leave without pay has been sanctioned. A sum of Rs. 56,775.00 has been paid against leave encashment. Rs. 32,977.00 as Group savings scheme, Rs. 2,50,000.00 as against GPF. So far prayer of the petitioner with respect to release of pay and allowance arising out of fixation of pay in the replacement scale with effect from 1.4.1996 is concerned, it can only be made after necessary orders are passed by the state. The first time bound promotion has been sanctioned by Office Order No. 1773 dated 29.5.1982 with effect from 8.11.1991 and second time bound promotion has been given vide office order No. 53 dated 27.5.1994 with effect from 1.8.1988. Regarding non payment of 10% of pension and gratuity amount, it has been submitted by Mr. R.K. Datta, counsel appearing for the Board that under Rule 139(b) of the Bihar Pension Rules, if the service of the employee is not satisfactory, the authorities sanctioning the pension can make deduction of the amount. Regarding non payment of 10% of pension and gratuity amount, it has been submitted by Mr. R.K. Datta, counsel appearing for the Board that under Rule 139(b) of the Bihar Pension Rules, if the service of the employee is not satisfactory, the authorities sanctioning the pension can make deduction of the amount. He has further stated that similar view has been taken by this Court in the case of Ram Bahadur Sinha V. The state of Bihar reported in 1994(2) PLJR 724 wherein it has been held that where departmental or judicial proceeding has already been instituted or where a decision to institute the same has already been taken, with holding whole or part of the pension pending departmental or judicial proceeding would be just like placing the government employee under suspension pending departmental proceeding or criminal proceeding against him. With holding of part of pension or gratuity is not penal in nature and it does not visit the person concerned with any evil consequence inasmuch as in the event of his being found not guilty of the charges he becomes entitled for the benefits for the intervening period. The counsel for the respondent Board has also placed his reliance on a decision in the case of State of Bihar and Ors. V/s. Ganga Bishun Mahto and Ors. reported in 2001 (4) PLJR 435 wherein it has been held that a government servant against whom a departmental or judicial proceeding has not been concluded on the date of superannuation, his retiral benefits can be with held under the provisions of the circular of Finance Department. The Finance Department in order to meet such situation issued Memo No. PC-11-40-38/74/9144 F dated 22.8.1974 under which only 75% of the pension should have been released in favour of a government employee against whom departmental or judicial proceeding was pending on the date of his retirement or was initiated after his retirement u/s. 43(b) of the Bihar Pension Rules. Subsequently considering the difficulty faced by the government employees, the Finance Department issued Resolution No. 4014 dated 31.7.1980, by which it has been provided that in case of a government servant against whom a departmental or judicial proceeding is pending 10% of the pension is directed to be with held. During the pendency of a departmentalal proceeding 90% of pension has been directed to be released in favour of the petitioner. 6. During the pendency of a departmentalal proceeding 90% of pension has been directed to be released in favour of the petitioner. 6. The pension of the petitioner has legally been with held and the gratuity has also been with held till the disposal of the criminal proceeding against him and as soon as it will be decided the petitioner will be entitled for 10% pension and entire gratuity. 7. After hearing counsel for the petitioner and the counsel appearing for the Board, I am of the view that no illegality has been committed due to with holding of 10% of petitioners pension and death-cum-retirement gratuity. In 1994 (2) PLJR. 724 it has been held that even gratuity can be with held for the intervening period when the departmental or judicial proceeding is pending. 8. It is a fact that the pension and gratuity are the properties of a government servant, it cannot be taken away in casual manner, but under Rule 139(b) of the Bihar Pension Rules unless the service of a government servant is satisfactory, he cannot claim as a matter of right his retiral dues. 9. On consideration of entire facts and circumstances of the case, I do not find any illegality in the order by which the petitioners 10% and gratuity amount has been with held. However, since the petitioner has already been paid his other retiral dues, his grievance almost redressed. 10. This application is accordingly disposed of.