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2014 DIGILAW 1071 (PAT)

Naresh Mohan Sinha v. State of Bihar

2014-10-16

ANJANA MISHRA

body2014
ORDER Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for Accountant General. 2. The petitioner seeks to challenge and quash the order dated 06.04.2011 contained in Memo No. 706 issued by the respondent no. 2, the Secretary, Department of Agriculture by which the claim of the petitioner for grant of rest 10 percent pension and gratuity has been rejected. 3. It is submitted on behalf of the petitioner that the respondents have acted far beyond the provisions of law inasmuch as till the date of retirement there was no proceeding pending against him departmentally and on account of the pendency of a criminal proceeding initiated after retirement, the amount which is due by way of pension and gratuity has been illegally withheld. Vide order dated 15.07.2010 passed in C.W.J.C. No. 10903 of 2010 this Court had directed the petitioner to present the representation before the concerned authorities for release of the rest 10 percent amount which is due by way of pension and gratuity but unfortunately despite the petitioner having filed his representation in pursuance of the order dated 15.07.2010, no orders were passed in his favour. Consequently, the petitioner approached this Hon’ble Court in M.J.C. No. 674 of 2011 by way of filing a contempt application. During the pendency of the said petition, the respondent State passed the impugned order which is the subject matter in the present writ application. 4. Learned counsel for the petitioner submits that as per the existent rule and that which has been settled by a catena of decisions of this Hon’ble Court as well as the Hon’ble Apex Court there is no provision by which the Respondents could be entitled to withhold his pension and gratuity i.e., 10 percent left over and any such action is grossly illegal and arbitrary and warrants interference by this Hon’ble Court. Learned counsel for the petitioner has further drawn my attention to a judgment of the Hon’ble Apex Court in the matter of State of Jharkhand vs. Jitendra Kumar Srivastava reported in 2013 (3) PLJR 458 (SC) in which the Hon’ble Apex Court while dealing with the Section 43 (b) have clearly explained the circumstances in which pension or gratuity could have been withheld or withdrawn which reads as under: “Having explained the legal position, let us first discuss the rules relating to release of Pension. The present case is admittedly governed by Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under:- “43(b) the State Government further reserve to themselves the right of withholding or withdrawing a pension or any pat of it, whether permanently or for 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 or judicial proceeding to have been guilty to grave misconduct, or to have caused pecuniary loss to Government misconduct, or to have caused pecuniary loss to government by misconduct or negligence, during his service including service rendered on re-employment after retirement.” From the reading of the aforesaid Rule 43(b), following position emerges:- (i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding. (ii) This provision does not empower the State to invoke the said power while the department proceeding or judicial proceeding are pending. (iii) The power of withholding leave encashment is not provided under this rule to the State irrespective of the result of the above proceedings. (iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.” 5. It appears from the bare perusal of the said judgment that the State Government has the power to withhold or withdraw pension only under the circumstances which are detailed there under. In the present case the order also indicates that since the provisions of Section 43(b) could not be started, a proceeding under Section 139 was started and was also consigned and as such, as on the date, no proceeding seems to be pending against the petitioner. Therefore, the action which has been taken recourse to by the respondents is not tenable as the law in question does not permit the respondents State to act as such. 6. Therefore, the action which has been taken recourse to by the respondents is not tenable as the law in question does not permit the respondents State to act as such. 6. Learned counsel for respondent State of Bihar has contested the matter and drawn my attention to paragraphs 11 and 18 of the counter affidavit stating that the contentions of the petitioner are misplaced as already 90 percent of the pension and gratuity has been sanctioned and in view of the pendency of the criminal case, the aforementioned 10 percent has been retained by the respondent State. 7. Having heard learned counsel for the petitioner and the respondent State as also learned counsel for the Accountant General, I find that the petitioner’s case is wholly covered by the decision of the Hon’ble Apex Court cited above and in view of such facts and circumstances, the impugned order contained in Memo No. 706 dated 06.04.2011 cannot be sustained in the eye of law and is accordingly set aside. The respondents are directed to issue necessary payment orders in favour of the petitioner within a period of six weeks from the day a copy of the order is produced by the petitioner. 8. Writ application is accordingly allowed.