Awadh Kishore Singh vs The State Of Jharkhand Through The ...
2025 Latest Caselaw 4987 Jhar

Jharkhand High Court

Awadh Kishore Singh vs The State Of Jharkhand Through The ... on 21 April, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

                                                                      2025:JHHC:12254-DB




         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             L.P.A. No. 435 of 2017
       Awadh Kishore Singh, son of Nand Kishore Singh, resident of Hatia
       Chowk, Godda, P.O.-Godda, P.S.-Godda Town, District-Godda.

                                                ... ... Appellant/Writ Petitioner
                                       Versus
     1. The State of Jharkhand through the Principal Secretary, Department of
        Personnel, Administrative Reforms & Rajbhasha, Project Building,
        HEC, P.O. & P.S.-Dhurwa, District-Ranchi.
     2. The Principal Secretary, Department of Personnel, Administrative
        Reforms & Rajbhasha, Project Building, HEC, P.O. & P.S.-Dhurwa,
        District-Ranchi.
     3. The Secretary, Finance Department, Nepal House, P.O. & P.S.
        Doranda, District-Ranchi.
     4. The Accountant General, (A&E), Office of the Accountant General
        Jharkhand, Doranda, P.O. & P.S. Doranda, District-Ranchi.

                                                ... ... Respondents/Respondents
                                      -------
     CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                   HON'BLE MR. JUSTICE RAJESH KUMAR
                                      -------
     For the Appellant           : Mr. Pandey Neeraj Rai, Advocate
                                   Mr. Rohit Ranjan Sinha, Advocate
                                   Mr. Arpit Khandelwal, Advocate
     For the Resp.-State         : Mr. Jai Prakash, AAG-IA
                                   Mr. Amitesh Kr. Geasen, AC to AAG-IA
     For the Reps. No.4          : Mr. Sudarshan Srivastava, Advocate
                         ----------------------------

     17/Dated: 21st April, 2025
     Per Sujit Narayan Prasad, J.

1. The instant appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 12.06.2017 passed by learned Single Judge of this Court in W.P.(S) No. 6121 of 2016, whereby and whereunder, the writ petition has been disposed of by refusing to grant the relief as prayed for at this stage, however, liberty has been granted to file an application before the competent authority with specific pleadings for payment of full salary and allowances during the period of suspension.

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2. The brief facts of the case as per the pleading made in the writ petition required to be enumerated, read as under:

The appellant/writ petitioner was a member of Bihar Administrative Service appointed on 21.11.1975 and his services was allotted to Jharkhand State Cadre vide notification dated 09.05.2003 of the Department of Personnel and Administrative Reforms, Bihar, Patna. The appellant/writ petitioner retired from service on 30.06.2004.

At the time of the posting of appellant/writ petitioner and allotment of Jharkhand Cadre, he was under suspension on the basis of an order contained in Memo No. 2489 dated 14.03.2002 of the Secretary, Personnel and Administrative Reforms, Bihar, Patna on account of his alleged involvement in R.C. Case No. 63A of 1996 (Pat).

Since the suspension order was not revoked, the appellant/writ petitioner submitted all the necessary papers and documents through the Divisional Commissioner for fixation of the pension and payment of post- retiral dues but the suspension order was never revoked and he retired as suspensed A.D.M. from the office of the Divisional Commissioner, Ranchi.

The appellant/writ petitioner preferred writ petition being W.P.(S) No. 1409 of 2005 seeking direction upon the respondents to make payment of all the retiral dues and the said writ petition was disposed of vide order dated 11.09.2012 by allowing the appellant/writ petitioner to withdraw the petition with liberty to apply for fixation of final pension after finalization of the CBI case.

It is the case of the appellant/writ petitioner that after the judgment having been passed in State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr., (2013) 12 SCC 210, the appellant/writ petitioner made representation on 11.07.2015 to the Principal Secretary, Department of Personnel and Administrative Reforms, Government of Jharkhand for fixation of final pension but no heed having been paid, the appellant/writ petitioner preferred another writ petition before this Court being W.P.(S) No. 6121 of 2016 wherein the learned Single Judge has refused to pass any positive direction, however,

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with the liberty to make an application before the competent authority with specific pleadings for payment of full salary and allowances during the period of suspension, against which the present intra-court appeal has been preferred.

3. It is evident from the aforesaid factual aspect that the appellant was appointed on 21.11.1975 and superannuated from service on attaining the age of superannuation on 30.06.2004 while working as Additional District Magistrate in the office of Divisional Commissioner, Ranchi. The appellant/writ petitioner has been found to be involved in a criminal case being R.C. No.63A of 1996 (Pat) and was placed under suspension on 14.03.2002. the subsistence allowance/grant was paid under the provision of Rule 96 of the Jharkhand Service Code from 14.03.2002 to 30.06.2004.

The appellant/writ petitioner was superannuated from service on 30.06.2004, as such, the suspension will stand revoked the day when the appellant/writ petition was superannuated from service but the grievance of the appellant/writ petitioner was that instead of finalization of the pension, the provisional pension has been granted. Therefore, the writ petitioner approached this Court by filing writ petition being W.P.(S) No. 6121 of 2016 seeking therein a direction upon the respondents to forebear from withholding fixation and payment of final pension.

The learned Single Judge has disposed of the writ petition by not granting the relief pertaining to fixation and finalization of pension, however, liberty was granted to make an application before the competent authority for payment of full salary and allowances while the appellant/writ petitioner was under suspension, i.e., from 14.03.2002 to 30.06.2004.

Argument on behalf of the learned counsel for the appellant:

4. Learned counsel appearing for the appellant has taken the following grounds in assailing the impugned order:

(i) The learned Single Judge has erred in passing the impugned judgment by not passing the specific direction with respect to the fixation and finalization of pension even though the law has been

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laid down by the Hon'ble Apex Court in the case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr (supra).

(ii) The writ petition has been disposed of by granting liberty to the petitioner to make an application before the competent authority for payment of salary and allowances during the period of suspension.

But while granting such liberty, the learned Single Judge has not appreciated the fact that the regularization of the period of suspension is the exclusive domain of the State and the moment, the appellant has retired from service on attaining the age of superannuation then it is the bounden duty of the State to make payment of full and final pension by taking all endeavours which is required for the finalization and fixation of pension but having not done so liberty has been granted to make an application for payment of salary and allowances during the period of suspension.

(iii) The learned counsel has further argued that after the judgment having been rendered in the case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr (supra) granting the provisional pension cannot be said to be proper rather it is in the teeth of the judgment passed by the Hon'ble Apex Court as also the provision as contained under Rule 43(b) of the Jharkhand Pension Rule.

5. The learned counsel, based upon the aforesaid ground, has submitted that the impugned order needs to be interfered with.

Argument on behalf of the learned counsel for the Respondent-State:

6. While on the other hand, learned counsel appearing for the respondent-

State has defended the impugned order by taking the following grounds:

(i) That the learned Senior Counsel, however, has not disputed the legal proposition as has been laid down by the Hon'ble Apex Court in the case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr (supra) by interpreting the provision of Rule

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43(b) of the Pension Rule but however he has submitted that learned Single Judge since has passed an order by granting liberty to the petitioner for the purpose of regularization of the period of suspension and as such it cannot be said to be incorrect order rather before finalization of pension also the period of suspension is required to be regularized and keeping the aforesaid fact into consideration, the learned Single Judge has passed an order by granting liberty to the petitioner to make an application before the competent authority for regularization of the said period of service by filing application under Rule 97 of the Jharkhand Service Code.

(ii) The learned counsel has further submitted that the next course of the State which is required to be taken in view of the law laid down in the case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr (supra) interpreting Rule 43(b) of the Pension Rules would be to finalize the pension and only for the aforesaid purpose, the learned Single Judge has granted liberty of making an application under Rule 97 of the Jharkhand Service Code.

7. The learned Senior Counsel, based upon the aforesaid ground, is fair enough to submit that the order impugned may not be interfered with rather the same may be modified by directing the State to take appropriate decision in view of the provision of Rule 97 of the Jharkhand Service Code for the purpose of finalization and fixation of pension.

Argument on behalf of the learned counsel for the Respondent No.4:

8. Mr. Sudarshan Srivastava, learned counsel for the respondent-Accountant General has submitted that the regularization of the period of service before finalization of pension is necessary and in absence thereof, the Office of the Accountant General will not in a position to sanction the pension as such, the direction may be given to the State to take recourse as available under Rule 97 of the Jharkhand Service Code for the purpose of regularization of the period of suspension and thereafter to take decision for finalization of pension, then only the Office of the Accountant General might be in a position to finalize the pension.

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Analysis:

9. We have heard the learned counsel for the parties, gone through the pleading made in the memo of appeal and other documents available on record as also the ground agitated on behalf of the respective parties.

10. The grievance which was raised on behalf of the appellant by filing the writ petition under Article 226 of the Constitution of India as per the prayer made in the writ petition was to fix and finalize the pension which would be evident from the prayer portion of the writ petition. For ready reference, the prayer portion of the writ petition is being referred as under:

"(a) Commanding upon the respondents to forbear from withholding fixation and payment of final pension of the petitioner, and

(b) Commanding upon the respondents to fix the final pension regardless of pendency of criminal case, as per the law laid down in State of Jharkhand & Ors. V. Jitendra Kumar Srivastava & Anr.

reported in (2013) 12 SCC 210 and thereupon pay the same to the petitioner immediately and forthwith."

11. The fact crept up in course of hearing before the learned Single Judge regarding the issue of regularization of the period of suspension due to the reason that the appellant was under suspension the day when he has been superannuated from service of attaining the age of superannuation.

12. Under the legal position of law, the day when one or the other public servants will superannuate from service if is under suspension, the order of suspension will stand revoked. The period of regularization of service under suspension has been considered to be a primary requirement for the purpose of fixation and finalization of pension.

13. The learned Single Judge in absence of regularization of the period of suspension, has refused to pass positive direction so far as the issue of finalization and fixation of pension, however liberty has granted to the appellant to make appropriate representation before the competent authority of the State of Jharkhand for regularization of the period of suspension. The said order is under challenge.

14. The fact about the regularization of the period of service while one or the other public servant was on suspension the day when he has

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superannuated from service on attaining the age of superannuation is not in disputed. It is for the reason that the pension is to be fixed on the basis of the last pay drawn and the same is required to be taken into consideration herein so far as the fact of the present case is concerned, the appellant admittedly was under suspension the day when he has superannuated from service on attaining the age of superannuation.

15. It is also the admitted fact that to regularize the period of service said to be in consonance with the statutory command is the bounden duty of the State authority for the purpose of fixation and finalization of pension but the State Government through its competent authority has not regularized the period of suspension so that the pension of the appellant be fixed and finalized rather the provisional pension has been released in favour of the appellant on the ground of pending criminal case.

16. The question of withholding of the pension and releasing the provision pension during pendency of the judicial or departmental proceeding is to be considered in the light of the provision as contained under Rule 43(b) of the Jharkhand Pension Rules. For ready reference, the provision of Rule 43(b) is being referred as under:

"43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension of any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss cause to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have cause pecuniary loss to Government by misconduct or negligence, during the service including service rendered on re-employment after retirement:

Provided that -

(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment;

(i) shall not be instituted save with the sanction of the State Government;

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;

(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a);

and

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(c) the Bihar Public Service Commission, shall be consulted before final orders are passed. "

17. It is evident from the aforesaid provision that the pension can be forfeited whole or part of it only in a case of finding having been arrived either at the departmental or judicial proceeding subject to condition as stipulated in the explanation as contained in the provision of Rule 43(b) of the Jharkhand Pension Rules.

18. The question of finding said to be arrived at is the pre-requisite condition to withhold the pension either whole or part of it, meaning thereby, during pendency of the judicial or departmental proceeding, pension cannot be withheld either whole or part of it. The issue of pension having not to be considered as bounty has been considered by the Hon'ble Apex Court in the case of Deokinandan Prasad vs. State of Bihar & Ors. reported in (1971) 2 SCC 330, wherein at paragraph-33 it has been held which reads as under:

"33. 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 sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 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 (Act 23 of 5 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 property consider the claim of the petitioner for payment of pension according to law."

19. The Hon'ble Apex Court again in the case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr (supra) has considered the aforesaid aspect of the matter and while interpreting the provision of Rule 43(b) of the Pension Rules has made certain observation which is necessary to be referred herein. Relevant paragraph of the said judgment is being referred as under:

"5. The Division Bench has held that the question is squarely covered by the Full Bench decision of that Court in Dudh Nath Pandey v. State of Jharkhand [(2007) 2 BLJR 2847 : (2007) 4 JCR 1] . In the said Full Bench judgment dated 28-8-2007, after detailed discussions on the various nuances of the subject-matter, the High Court has held:

"To sum up the answers for the two questions are as follows:

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(i) Under Rules 43(a) and 43(b) of the Bihar Pension Rules, there is no power for the Government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding.

(ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law."

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."

20. It is evident from the aforesaid pronouncement of the Hon'ble Apex Court that the pension being not a bounty, as such, cannot be withheld contrary to the statutory command. The statutory command is that the pension can only be withheld in a case of finding either arrived at in the departmental or judicial proceeding of committing grave misconduct in the discharge of his duty while in his office.

21. Herein, the admitted case of the respondent-State is that a criminal case is going on against the appellant and taking into consideration the pendency of the aforesaid proceeding, the pension has not been finalized rather the provisional pension has been paid. The appellant was under suspension vide order dated 14.03.2002 and remained under suspension when he retired on attaining the age of superannuation w.e.f. 30.06.2004.

22. The suspended employee is only to be given the subsistence grant/allowance in view of the provision of Rule 96 of the Jharkhand Service Code, as such, the requirement for the purpose of finalization and fixation of pension would be to regularize the said period of suspension in a case where the concerned employee has retired from service under suspension itself.

23. The requirement to do the needful for the regularization of period of service under the period of suspension is available under Rule 97 by which the State Government has been conferred with the power to regularize the period of service while the concerned employee who has retired from service was under suspension.