Patna High Court
Banarsi Prasad Yadav vs The State Of Bihar on 5 December, 2023
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17333 of 2022
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Banarsi Prasad Yadav, S/o Late Puran Yadav, R/o Village- Haripur, P.O.-
Barahat, P.S.- Barahat, District- Banka.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, (Home) Police,
Department, Bihar, Patna.
2. The Director General of Police cum Inspector General of Police, Bihar,
Patna.
3. The Deputy Inspector General of Police, East Range, Bhagalpur.
4. The Superintendent of Police, Banka.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Binod Kumar Paswan, Advocate
For the Respondent/s : Ms. Babita Kumari, AC to SC-1
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 05-12-2023
Heard Mr. Binod Kumar Paswan, learned counsel
for the petitioner and Ms. Babita Kumari, learned counsel for
the State.
2. The petitioner, who superannuated from the post
of S.I. on 28.02.2022 from the Banka police force, has filed the
present writ petition seeking a direction upon the respondents to
ensure payment of all his retiral benefits, including provisional
Pension, till final disposal of the departmental proceeding.
3. A counter affidavit has been filed on behalf of
respondent no.4.
4. Referring to the averments made in the counter
affidavit, it is submitted that the petitioner has already been paid
Patna High Court CWJC No.17333 of 2022 dt.05-12-2023
all the admissible amount of Group Insurance, Earned Leave
and G.P.F. It is further submitted that the petitioner has also
been accorded provisional gratuity to the tune of Rs.13,34,444/-.
5. The counter affidavit discloses that since the
petitioner is facing departmental proceeding, bearing Nawada
District Departmental (Inquiry) Proceeding No.16 of 2017, thus
final action shall be taken towards the payment of his pension
after disposal of pending departmental proceeding.
6. At this stage, learned counsel for the petitioner
submits that withholding of entire pension is in the teeth of Rule
43(c) of the Bihar Pension Rules, 1950 as well as judgment of
the Full Bench of this Court rendered in the case of Arvind
Kumar Singh Vs. The State of Bihar & Ors, reported in
2018(2) PLJR 933.
7. Considering the submissions advanced on behalf
of the parties and the materials available on record, this Court
finds substance in the submission of the petitioner.
8. Before parting with the final outcome it would be
worth quoting here Rule 43(c) of the Bihar Pension Rules, 1950.
"43(c) Where the departmental
proceeding or judicial proceeding, in which
the prosecution has been sanctioned against
such servant, initiated during the service
period of the government servant, is not
Patna High Court CWJC No.17333 of 2022 dt.05-12-2023
concluded till the retirement of the
government servant, the amount of
provisional pension shall be less than the
maximum admissible amount of pension but
shall in no case be less than 90% (ninety
percent)."
9. Further, the Full Bench of this Court in the case
of Arvind Kumar Singh (supra) while considering the legal
question pertaining to right of the State Government in
withholding gratuity and leave encashment in cases of employee
against whom, at the time of superannuation, departmental or
criminal proceedings were pending, held that after coming into
force of the amendment to the Pension Rules by incorporating
Rule 43(c) on 19th of July, 2012, an employee who is facing
departmental inquiry or judicial proceeding on the date of his
superannuation would be entitled to provisional pension, which
would include to the tune of an amount not less than 90 per cent.
10. It would be worth noting that subsequently the
Government of Bihar came with another amendment to the
Pension Rule by incorporating Rule 43(d), which reads as
follows:
"43(d) if any departmental or
judicial proceeding is pending against the
government servant at the time of retirement,
full amount of gratuity may be with held till
the final conclusion of the departmental or
Patna High Court CWJC No.17333 of 2022 dt.05-12-2023
judicial proceeding and issuance of order
accordingly."
11. It is the admitted position that in the case in
hand the Government has taken a decision to release the
provisional gratuity in favour of the petitioner taking note of
pending departmental proceeding at the time of his
superannuation.
12. In view of the facts noted hereinabove and the
position in law, the present writ petition stands disposed of with
a direction to the respondent no.3 (Deputy Inspector General of
Police, East Range, Bhagalpur) to consider the case of the
petitioner and pass necessary order for payment of 90%
provisional pension in favour of the petitioner pending disposal
of the departmental proceeding in the light of Rule 43(c) of the
Bihar Pension Rules, 1950 as well as the judgment of this Court
rendered in the case of Arvind Kumar Singh (supra) preferably
within a period of eight weeks from the date of
receipt/production of a copy of this order.
13. This disposes the writ petition.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.12.2023
Transmission Date NA
