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2020 DIGILAW 349 (PAT)

Rajiv Kumar Ambasta v. State Of Bihar

2020-06-23

RAJEEV RANJAN PRASAD

body2020
JUDGMENT Rajeev Ranjan Prasad, J. - The petitioner in the present writ application has prayed for the following reliefs: "I For direction the respondents to pay retiral dues i.e., Group Insurance, Earned Leave which have been sanctioned but till date has not been paid to the petitioner. II for quashing of the letter vide letter no 394 dated 10-04- 19 issued by the District Magistrate, Begusarai whereby direction has been given to the Accountant General, Bihar, Patna that Gratuity shall be paid to the petitioner after final decision of Vigilance case no. 20/17 in the light of rules 43(gha) of Bihar Pension Rules 1950. III For quashing of the letter no 395 dated 10.04.19 issued by the District Magistrate, Begusarai where by direction has been given to the Accountant General Bihar Patna to grant 90% pension i.e Rs 33,435/- in the light of rules 43(gha) of Bihar Pension Rules 1950 till the final disposal of vigilance case. IV For direction the respondents to pay full pension and Gratuity with statutory interest and for other order or direction in the facts and circumstances of the case in the interest of justice." 2. The petitioner has retired as Head clerk from the office of the Collector, Begusarai on 31.12.2018. While in service he had endorsed the recommendation of the dealing Assistant to pay the benefit of Assured Career Progression (in short 'ACP') to all the staffs of District Rural Development Authority, Begusarai ('DRDA'). On account of the benefit of 'ACP' a sum of Rs. 8,51,240/- had been withdrawn. When the Deputy Development Commissioner, Begusarai found that the benefit of 'ACP' was not permissible to the employees of the 'DRDA', he issued an order bearing Memo No. 38 (mu) dated 15.6.2015 directing return of 'ACP' amount from the beneficiary employees. For the alleged payment of ACP benefit to the employees a Special Case bearing No. 15/17 and after that Vigilance Case No. 20 of 2017 has been registered on 21.03.2017 under Sections 109, 409, 420, 467, 468, 471, 120B of the Indian Penal Code read with Section 13(2) , 13(1) ( C) (d) of the Prevention of Corruption Act, 1988 against the petitioner and others. In this case the petitioner has been granted anticipatory bail. 3. In this case the petitioner has been granted anticipatory bail. 3. Since the petitioner retired from service during the pendency of the aforesaid criminal case, till filing of the writ petition he was not paid anything against gratuity amount. Pension of the petitioner has already been fixed at 90 % keeping in view Rule 43 (ga) of the Bihar Pension Rules, 1950 (hereinafter referred to as the 'Rules, 1950') 4. While the grievance of the petitioner at the time of filing of the writ application was that the District Magistrate, Begusarai issued letter no. 394 dated 10.04.2019 giving a direction to the Accountant General, Bihar that gratuity shall be paid to the petitioner after final decision in the vigilance case in the light of Rule 43(gha) of the Rules, 1950, now by filing a counter affidavit the District Magistrate, Begusarai (respondent no. 3) has informed this Court that on receipt of the guidelines from the General Administration Department, Government of Bihar, vide letter no. 13660 dated 03.10.2019 he has allowed payment of 90 % of the gratuity to the petitioner vide letter no. 1404 dated 14.11.2019. A true copy of said letter has been enclosed as Annexure 'A' to the counter affidavit. Therefore, admittedly the petitioner has been allowed to receive 90% of the gratuity and 90 % of the pension amount during the pendency of the aforesaid criminal case. 5. Rule 43(x) and 43 ( ) of the Bihar Pension Rules read as under:- 6. On a bare reading of the Rules quoted hereinabove no fault may be found with the decision of the District Magistrate, Begusarai (respondent no. 3) in the matter of grant of 90% of the gratuity amount and 90% of pension during the pendency of the criminal case/ judicial proceeding. 7. As regards the Group Insurance and Earned Leave amount, the petitioner has stated in the writ application that the same has been sanctioned but his grievance is that despite sanction of those amount the same has not been paid to the petitioner. 8. In course of argument learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava, 2013 12 SCC 210 . 9. It is submitted that in view of the said judgment the withholdment of gratuity and pension amount is wholly illegal, unjust and improper. Vs. Jitendra Kumar Srivastava, 2013 12 SCC 210 . 9. It is submitted that in view of the said judgment the withholdment of gratuity and pension amount is wholly illegal, unjust and improper. 10. Learned counsel for the State has opposed the writ petition. It is submitted that petitioner has not controverted that he has already been paid the G.P.F. and Group Insurance amount. The respondents have justified withholdment of Gratuity and Pension to the extent of 10 % only. It is submitted that the judgment in the case of Jitendra Kumar Srivastava (supra) shall not apply. 11. Having heard learned counsel for the parties, this Court has also perused the judgment in the case of Jitendra Kumar Srivastava (supra) and noticed that in the said case the employee of the appellant State had retired from service on 31.08.2002. The appellant State sanctioned 90% of provisional pension and 10 % was withheld pending outcome of criminal cases/departmental inquiry against him. He was also not paid leave encashment and gratuity. 12. At the relevant time Rule 43(b) of the Bihar Pension Rules applicable to the State of Jharkhand came for consideration and it was found that Rule 43(b) provides for withholdment or withdrawal of pension or part of it when the pensioner is found guilty of grave misconduct either in departmental proceeding or in judicial proceeding. The Provisions did not empower the State to invoke the said power while the departmental proceeding or judicial proceeding were still pending. 13. Learned counsel for the petitioner while placing the aforesaid judgment before this Court perhaps failed to take note of the fact that vide notification no. 133/2007 dated 19.07.2012 issued by the Finance Department, Government of Bihar a new sub-rule 43(ga) has been added which provides for power of the State Government to withhold pension of the employee in case the departmental proceeding has been initiated against him while in service or sanction has been granted in respect of a judicial proceeding against the employee and the said judicial proceeding is still pending. However, it is further provided that the provisional pension shall not be less than 90 % of the estimated pension amount. A copy of the gadget notification is enclosed with the counter affidavit. Similarly the State Government in it's Finance Department has come out with another amendment in the Rules, 1950 known as Bihar Pension (Amendment) Rules, 2018. However, it is further provided that the provisional pension shall not be less than 90 % of the estimated pension amount. A copy of the gadget notification is enclosed with the counter affidavit. Similarly the State Government in it's Finance Department has come out with another amendment in the Rules, 1950 known as Bihar Pension (Amendment) Rules, 2018. By bringing amendment, Rule 27 has been substituted and after Rule 43 (ga) a sub-rule (gha) has been added. According to the Rule now the gratuity amount may also be withheld if on the date of retirement a departmental or judicial proceeding is found pending against the government employee. Perhaps, learned counsel for the petitioner has missed to take note of the amended part. The judgment relied by learned counsel for the petitioner would, thus, not be applicable in the present case. 14. This Court is thus, of the considered opinion that no case for quashing of the letter no. 395 dated 10.04.2019 issued by respondent no. 3 has been made out. 15. So far as payer for quashing of letter no. 394 dated 10.04.2019 is concerned, the same has lost its significance in view of the statements made by respondent no. 3 in his counter affidavit sworn on 27.01.2020 by DLAO/EDC. 16. In the facts of the present case, this Court would, however, direct the respondent authorities to ensure payment of 90% of the gratuity, 90% of pension and the sanctioned Group Insurance as well as Earned Leave amount if not already paid to the petitioner, within a period of two months from the date of receipt/production of a copy of this order. 17. This writ application stands disposed of.