Bindeshwar Narain Srivastava @ Dr. Bindeshwar Narain Srivastava vs The State of Bihar and Others

Barin Ghosh, J.—Heard Learned Counsel for the parties. Pension payable to an employee of the Government of Bihar is governed by the Bihar Pension Rules, 1950. Rule 27 of the said Rules provides that pension includes gratuity Sub-clause (a) of Rule 43 provides that future good conduct is an implied condition of every grant of pension. It also provides that if the pensioner is convicted of serious crime or be guilty of grave misconduct, it is permissible for the government to withhold or to withdraw a pension or any part of it. Sub-clause (b) of Rule 43 provides that the State Government shall have right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period in addition to right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. Admittedly, apart from these two clauses, there is no power in the State Government to withhold pension or any part thereof or to deny payment of the same. This power can only be exercised if the pensioner is convicted or adjudged to be guilty. Therefore, until such time, there is a conviction or a judgment of guilt, there is no power in the State to withhold pension otherwise payable to a government employee. The Rules were created by the State Government under subclause (b) of sub-section (2) of Section 241 of the Government of India Act, 1935. The said rules should be deemed to have been made in terms, of the proviso to Article 309 of the Constitution. Rules so made cannot be interfered with by pure and simple executive fiat. From time to time various executive fiats were issued in relation to withholding of part of the pension before conviction or before a judgment of guilt. Those circulars were per se unenforceable for the legislative law made by the State did not permit the same. In that background, a Division Bench of this Court in the case of Bajrang Deo Narain Sinha Vs. The State of Bihar and Others, held that the pensionary dues payable to a government, employee including gratuity which is also pension within the meaning of the Rule cannot be withheld till such time there is an order of conviction or a judgment of guilt of the pensioner. Despite that pronouncement of the Division Bench of this Court, the Officers of the Government went on issuing administrative fiats directing withholding of part of the pension even before an order of conviction or a judgment of guilt of the pensioner. However, good sense prevailed upon the Government and it felt that it was improper on the part of the executive to act in a manner contrary to the legislative mandate and accordingly, the Chief Secretary of the Government of Bihar by Memo No. Pension Koshang-41/03 dated 28th July, 2003 directed all Commissioners and Secretaries of the Departments, all Departmental Heads, all Divisional Commissioners and all District Magistrates that if a departmental proceeding against a retired employee is continuing or a chargesheet has been submitted in a criminal case lodged against him, then 100% pension in the form of provisional pension should be sanctioned.

In the instant case, the writ petitioner was engaged in a pensionable service of the State Government. In 1999, a chargesheet was filed by the Central Bureau of Investigation before the designated court, levelling certain charges against the petitioner. Inasmuch as such chargesheet was filed, the petitioner was put under suspension on 22nd November, 2000. There is no dispute that the conditions of service of the petitioner permit the disciplinary authority of the petitioner to put the petitioner under suspension in the event the petitioner is implicated in a criminal case. Inasmuch as the petitioner was implicated in the said criminal case, which was initiated by the C.B.I., the petitioner was put under suspension. On 28th February, 2003 upon attaining the age of 58 years, the petitioner retired. Subsequent thereto, the petitioner has been allowed to draw 90% of his pension as provisional pension. This pension has been calculated on the salary the petitioner was entitled to draw on 22nd November, 2000 i.e. on the date he was put under suspension and not on the basis of pay to which the petitioner was otherwise entitled to on the date of his superannuation i.e. 28th February, 2003, but for the suspension. The petitioner has not been paid any part of the gratuity payable to him. There is no dispute that the petitioner has been paid subsistence allowance during the period between 22nd November, 2000 and 28th February, 2003 but he has not been paid salary for that period.

In the present writ petition, the petitioner is seeking, therefore, salary payable to him for the period 22nd November, 2000 to 28th February, 2003 less the amount of subsistence allowance paid to him. In addition to that, he is seeking fixation of his pension on the basis of the salary to which the petitioner was entitled to on 28th February, 2003 and on top of that the petitioner is seeking payment of 100% pension by way of provisional pension in terms of the said decision of the Government dated 28th July, 2003 as well as 100% gratuity payable to him.

Learned Counsel appearing on behalf of the respondents has drawn my attention to an order of a learned single Judge of this Court dated 14th February, 2005 whereby the learned Judge directed that the payment of balance amount of the pensionary benefit to the pensioner shall abide by the criminal proceeding. While, however, issuing that direction, the learned Judge did not take notice of the applicable rules, the latest circular of the government and the judgment of the Division Bench referred to above. The order so cited by the Learned Counsel for the respondents has, therefore, no precedential value. On the other hand, Learned Counsel for the petitioner has cited a judgment of yet another learned single Judge of this Court delivered in the case of Baliram Pandey Vs. The State of Bihar and Others, wherein the learned Judge not only took note of the aforementioned judgment of this Court as well as the said decision of the Government communicated through the Chief Secretary of the Government but the learned Judge in that case also took note of yet another decision of the Division Bench of this Court delivered in the case of The State of Bihar and Others Vs. Ganga Bishun Mahto and Others which somehow relied on certain Government circulars without relying upon the statutory rules and therefore, somewhat went against the Division Bench judgment of this Court rendered in Bajrang Deo Narain Singh vs. State of Bihar (supra) without however referring to the said judgment. Be that as it may, the learned Single Judge in the case of Baliram Pandey vs. The State of Bihar (supra) took note of the Government decision circulated through its Chief Secretary on 28th July, 2003 which was a later event that the judgment rendered in the case of State of Bihar vs. Ganga Bishun Mahto (supra). With due respect to the learned Judge who delivered the judgment in Baliram Pandey vs. The State of Bihar and others, I fully agree with the view expressed by his Lordship and accordingly declare that until and unless the State itself alters the rules, it is impermissible for the State to withhold any part of the pension payable to a pensioner unless the pensioner has been convicted or adjudged to be guilty of an offence.

In such view of the matter, I pronounce that the petitioner was entitled to 100% pension by way of provisional pension until such time the criminal case was decided one way or other and it was improper on the part of the State to pay only 90% of his pension.

It should always be kept in mind that an order of suspension is not a punishment order. If an order of suspension is treated to be a punishment order, the same would be an invalid order for the suspension orders are passed at the threshold and even at a stage where only a proceeding is under contemplation. The reasons for issuing a suspension order are varying, one of them, is not to permit the delinquent to influence the enquiry that may be made. The other may be to protect and preserve the dignity of the other employees of the Organisation. In such view of the matter, a suspension order is issued when a departmental proceeding against the delinquent is under contemplation or when criminal charges are under consideration by an appropriate criminal court against the delinquent. The suspension order issued in contemplation of a disciplinary proceeding merges into the final order to be passed in the disciplinary proceeding. At the time of conclusion of the disciplinary proceeding it is open to the disciplinary authority to prevent the delinquent to draw full salary and to permit him to draw only the subsistence allowance. The suspension order issued for a grave criminal charge, which is under investigation by a criminal court, also merges with the order that is to be passed after conclusion of the criminal proceedings, although the same would be passed by the disciplinary authority. If the delinquent is convicted and sentenced he would automatically lose his job and as a result it is well within the competence of the disciplinary authority to direct that apart from the subsistence allowance, the delinquent shall not be entitled to any other part of the salary. However, these orders can only be passed by the disciplinary authority till such time the delinquent is in service and not after his retirement. After retirement, no order can be passed by the disciplinary authority dismissing the services of the delinquent. If that be so, even if the writ petitioner is convicted in the said C.B.I, case, such conviction being after his retirement, the petitioner cannot be dismissed from service, although on the basis thereof his pension may be withheld in part or in full. What will then happen, in relation to the period the petitioner was under suspension? As aforesaid, in relation 1o that, after his retirement, the disciplinary authority will have no authority to pass any order and as such the order of suspension on retirement will come to an end automatically. The petitioner in such circumstances should not only be paid subsistence allowance but also his full salary for without adjudging that he is guilty of an offence, he cannot be punished and as aforesaid after retirement he cannot be punished except by way of withholding a part or full of his pension.

In such view of the matter, the petitioner is entitled to full salary for the suspension period less the subsistence allowance which has been paid to him for it is now not possible for the appointing/ disciplinary authority to pass any order relating to the period of suspension. Inasmuch as the petitioner has retired on 28th February, 2003, he is entitled, in accordance with rules, to have his pension fixed on the basis of the pay to which he was entitled to on 28th February, 2003 but for that suspension. Inasmuch as in terms of the rules, pension includes gratuity, the petitioner is also entitled to full payment of gratuity and the same cannot be withheld merely because a case filed in the criminal court is still pending for there is no power in the pension rule to withheld the same or any part thereof. In those circumstances, the writ petition is allowed with a declaration that the suspension of the petitioner stood automatically revoked on the date of retirement of the petitioner i.e. 28th February, 2003 without there being any power reserved in the appointing authority or the disciplinary authority of the petitioner to pass any order dealing with the entitlement of the petitioner during the period of suspension and accordingly the petitioner is entitled to full salary due to him for the period of suspension in between 22nd November, 2000 and 28th February, 2003 and accordingly a direction is issued to pay the difference of the salary payable to the petitioner for that period less the subsistence allowance which has been paid to him during that period. It is also declared that the petitioner is also entitled to pension to be fixed on the basis of the salary to which the petitioner was entitled to on 28th February, 2003 and also 100% of his pension and gratuity to be fixed on the basis thereof by way of provisional pension and accordingly a direction is issued to settle the same and to pay the differences between what has been paid to the petitioner and the amount to which the petitioner is entitled to within a period of twelve weeks from the date of service of a copy of this order upon the respondents. There shall be no order as to costs.