Lal Bahadur Singh vs State Of Jharkhand And Ors

Heard Mr. Saurabh Shekhar, learned counsel for the petitioner, Mr. Devesh Krishna, learned counsel appearing for respondent-State and Mr. Sunil Kr. Agarwal, learned counsel for the respondent no. 5.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioner has preferred this writ petition for direction upon the respondents to fix and finalize the pension of the petitioner and to make payment of pensionary benefits on regular monthly basis along with arrears and other post retiral benefits i.e. leave encashment, gratuity, travelling allowance. Prayer has also been made for direction upon the respondents to fix the salary of the petitioner earlier to his retirement on the basis of 7th Pay Revision Commission which has been published vide Resolution dated 18.01.2017 applicable w.e.f. 01.01.2016 prior to the date of his retirement on 31.01.2017. Prayer has also been made for direction upon the respondents to grant benefits of 1st ACP w.e.f. 08.10.2005 on completion of 12 years of his regular services.

During pendency of the writ petition, I.A. No. 4248 of 2020 has been filed for setting aside order dated 21.04.2020 whereby provisional pension was stopped abruptly. On 01.09.2020, the said I.A. was heard and adjourned for taking instruction by the learned counsel for the respondent- State and interim order was passed by staying order dated 21.04.2020 and it was ordered that there shall not be any impediment in releasing the provisional pension as being paid to the petitioner. The judgment was reserved on 07.10.2020, thereafter, mention slip was filed on behalf of the petitioner indicating that inadvertently, I.A. has not been addressed to the Court on 07.10.2020. On 14.10.2020, I.A. was heard and it was ordered that since the arguments in this matter have already been concluded and the judgment is reserved on 07.10.2020, the interlocutory application shall also been dealt with the final order. Another I.A. No. 5018 of 2020 has been filed on behalf of the respondent-State for vacating interim order dated passed on 01.09.2020.

In view of averments made in the interlocutory application, I.A. No. 4248 of 2020 stands allowed. Purpose of impugned order, I.A. will be part of the writ petition.

As this matter has been heard on merit, there is no need to pass any order in I.A. No. 5018 of 2020.

The case of the petitioner is that the petitioner has been appointed on the post of Assistant Teacher in regular manner on 01.07.1980. Thereafter, the petitioner performed his duty services regularly without any break. Thereafter, the petitioner has been inducted into Sub-ordinate Education Services, which is a separate cadre after undergoing due selection process on 08.10.1993. The petitioner thereafter has served regularly and without any break but inspite of that the petitioner has not been granted the benefit of Assured Career Progression Scheme in accordance with the notification dated 14.08.2002. The petitioner has performed his services regularly without any break. The petitioner was suspended from his service vide order dated 29.08.2008 w.e.f. 22.08.2008. The order of suspension was revoked on 22.09.2009. The petitioner was suspended on the basis of one proposed departmental proceeding but that was never initiated against the petitioner, however, one criminal case is pending against him, being Vigilance Case No. 17 of 2008 which is still pending and except pendency of that case, nothing has been proved against the petitioner as yet. The petitioner has fully cooperated in the criminal case. During pendency of the proceeding, the petitioner has retired from his service on 31.01.2017 from the post of Block Extension Officer, Ramgarh. The petitioner handed over the charge on the same day. The petitioner became entitled for grant of 1st ACP on completion of 12 years of service w.e.f. 08.10.1993 which got completed on 08.10.2005. The criminal case was instituted in the year, 2008, thereafter there is no reason for stopping the benefit of the petitioner.

Mr. Saurabh Shekhar, learned counsel appearing for the petitioner submitted that despite several representations made by the petitioner, the retiral benefit has not been paid to the petitioner. He submitted that respondents-authorities are not authorize to stop the pension of the petitioner after his retirement or non-payment of the same under any provision of law, till the time anything adverse is proved against him in any departmental proceeding, under the provisions of Rule 43(b) of the Pension Rules or in case of conviction in a criminal case for which a separate decision has to be taken. He submitted that the case of the petitioner is fully covered with judgment in the case of "Dr. Doodhnath Pandey Vs. State of Jharkhand and Others" reported in 2007(4) JCR 1 (Jhr) (FB). He referred paragraph nos. 17 and 21 of the said judgment which is quoted here-in-below:-

"17 The various guidelines which have been given by the decisions, referred to above, are as follows:

(i) The conditions precedent for imposing penalty of withholding pension is that there should be a finding in departmental enquiry or judicial proceeding that the pensioner committed grave misconduct in the discharge of his duty while in office.

(ii) Before the power under Rule 43(b) can be exercised in connection with alleged misconduct of the retired Government servant, it must be shown that in departmental proceeding or judicial proceeding, the concerned Government servant has been found guilty of grave misconduct.

(iii) Unless the pensioner is found guilty of misconduct in departmental or judicial proceeding any part of his pension cannot be withheld.

(iv) The employee's right to pension is a statutory right. The measure of deprivation of his pension must be commensurate with the gravity of misconduct as it offends the right to assistance as framed under Article 41 of the Constitution.

(v) The pensionary dues payable to the employees including Gratuity which is also pension within the meaning of Bihar Pension Rules cannot be withheld. Similarly, Leave Encashment cannot also be withheld since that is paid in lieu of unutilized leave as it partakes the character of salary.

(vi) The power under Rule 43(b) cannot be exercised before the pensioner is found in departmental or judicial proceeding guilty of grave misconduct.

(vii) The bare reading of the Rule 43(a) of the Bihar Pension Rules would make it evident that the power to withhold or withdraw pension is permissible only when the pensioner is found to be guilty of grave misconduct and not that during the pendency of such proceedings.

21 Therefore, we are to hold while answering the first question that the Government has no power to withhold pension or Gratuity on the ground of pendency of judicial or .departmental proceedings and there is no power at all for the State Government to withhold the leave encashment under Rule 43(b) at any stage."

Learned counsel for the petitioner further submitted that the petitioner has been deprived of payment of leave encashment, travelling allowance and the benefits of 7th Pay Revision Commission, which cannot be withheld or denied to be paid under any circumstances. The respondents-authorities have harassed the petitioner. He further submitted that the impugned order dated 21.04.2020 has purposely been passed on the basis of Rule 43(a) of Pension Rules and for this no show-cause notice has been served upon the petitioner. He submitted that for any civil dispute in view of well-settled provision of law, notice is necessary. He submitted that impugned order dated 21.04.2020 is not supported by any statutory provision. Learned counsel for the petitioner further referred paragraphs nos. 31 to 34 of the judgment in the case of "Dr. Doodhnath Pandey" (supra) and submitted that it has been held therein that pensionary benefit cannot be withheld if there is no statutory provision, so to do. He submitted that Rule 43(a) postulated to withhold pensionary benefit in case where future good conduct gets violated. He submitted that in view of the matter, the petitioner is entitled for benefit of the same. He further relied on judgment in the case of "State of Jharkhand and Others Vs. Jitendra Kumar Srivastava & another" reported in (2013) 12 SCC 210. The relevant paragraphs of the said judgment is quoted here-in-below:-

"13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.

The right to receive pension was recognised as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar, as is apparent from the following discussion:

"27. The last question to be considered, is, whether the right to receive pension by a government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.

According to the petitioner the right to receive pension is property and the respondents by an executive order dated 12-6-1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on 5-8-1996. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances.

According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution.

We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of qualifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. The rules, we have already pointed out, clearly recognise the right of persons like the petitioners to receive pension under the circumstances mentioned therein.

The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India7. It was held that such a right constitutes 'property' and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh8 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is 'property' within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as 'property' cannot possibly undergo such mutation at the whim of a particular person or authority.

The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.

This Court in State of M.P. v. Ranojirao Shinde10 had to consider the question whether a 'cash grant' is 'property' within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing 'it is obvious that a right to sum of money is property'.

Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by clause (5) of Article 19. Therefore, it follows that the order dated 12-6-1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law."

It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."

Per contra, Mr. Devesh Krishna, learned counsel for the respondent-State submitted that there is a pending departmental proceeding against the petitioner which has not been concluded and in that view of the matter, the petitioner was provided only provisional pension. The provisional pension has been sanctioned by the department vide order dated 23.08.2018. He further submitted that in the Resolution dated 23.07.2018 issued by the Department of Planning-cum-Finance, the applicable Death-cum-Retirement gratuity and commutation of pension is not payable to the petitioner till the conclusion or final order of the departmental proceeding/judicial proceedings. However, leave encashment has been directed to be released. He submitted that petitioner has applied for travelling allowance, the same shall be considered as per applicable rule. Grant of A.C.P. has been disputed by the respondent-State. Learned counsel for the respondent-State by way of referring to the rejoinder to the I.A. No. 4248 of 2020 submitted that pension of the petitioner has been cancelled but final order has not been passed awaiting consent of Secretary, J.P.S.C. He submitted that order has been passed under Rule 43(b) accordingly, Rule 43(a) has no relevancy. By way of referring Annexure-C to the counter- affidavit, learned counsel for the respondent-State submitted that in view of Rule 43(C) as amended Resolution dated 23.07.2018, the petitioner is not entitled for pension.

In view of the above facts, the Court has perused the stand taken by the learned counsel for the respondent-State. Learned counsel for the respondent-State has relied on Rule 43(b), 43(a) and 43(c). Learned counsel for the respondent-State is not clear that on which particular rule he is relying. Prima-facie, it appears from the impugned order that has been brought on record by way of I.A., that order has been passed at the strength of Rule 43(a). Rule 43(c) is not applicable in the case of the petitioner,. The amendment has been made in the year, 2018 whereas the petitioner has retired on 31.01.2017. Thus, Rule 43(c) cannot be with retrospective effect.

As a cumulative effect of the discussions made above and considering the submissions of the learned counsel for the petitioner as well as respondent-State, the Court finds that the case of the petitioner is fully covered with Full Bench judgment of this Court in the case of "Dr. Doodhnath Pandey" (supra) and in the case of "(Jitendra Kumar Srivastava (supra). The State Government has power to withhold or withdrew pension or any part of it when pensioner is found to be of guilty of grave misconduct either in a departmental proceeding or judicial proceeding. A reading of Rule 43(b) makes it abundantly clear that the even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension only when a finding is recorded either in departmental inquiry or judicial proceedings that employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending. Pension has been held as property in law under Article 300(A) of the Constitution of India. Accordingly, impugned order dated 21.04.2020 is quashed. The respondents are directed to fix the pension and to release the pensionary benefits and consequential benefits to the petitioner forthwith.

The writ petition stands allowed and disposed of. Pending I.A, if any stands disposed of.