Patna High Court
Akhileshwar Kumar Mishra vs The State Of Bihar on 6 August, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13557 of 2021
======================================================
Akhileshwar Kumar Mishra S/o Late Nandkishore Mishra resident of Village-
Mohammadpur, P.S.- Sakra, Dist.- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Planning
and Development, Government of Bihar.
2. The Principal Secretary Department of Science and Technology,
Government of Bihar, Patna.
3. The Joint Secretary Department of Science and Technology, Government of
Bihar, Patna.
4. Vigilance Investigation Bureau, through ADG, 6 Circular Road, Patna.
5. The District Magistrate, East Champaran at Motihari.
6. The Regional Planning Officer, Tirhut Division, Muzaffarpur.
7. The District Planning Officer, East Champaran at Motihari.
8. The District Education Officer, East Champaran at Motihari.
9. The Principal cum Chief Co-Coordinator, Border Area Development
Programme, Motihari College of Engineering, Motihari.
10. The Chief Accountant General, Bihar, Birchand Patel Path, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Anand Ojha with
Mr. Sangeet Deokuliar, Advocates
For the State : Mr. Vikash Kumar, SC 11
For the Vigilance : Mr. Anil Singh, Advocate
For the Accountant General : Mrs. Ritika Rani, Advocate
=======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 06-08-2024
This Court has heard Mr. Anand Ojha, learned
Advocate for the petitioner, Mr. Vikash Kumar, learned
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
2/19
Standing Counsel-11, Mr. Anil Singh, learned Advocate for the
Vigilance and Mrs. Ritika Rani, learned Advocate for the
Accountant General.
2. The petitioner superannuated on 31.07.2019 from
the post of Assistant Professor while he was working on
deputation in MCE Motihari from MIT, Muzaffarpur. Being
aggrieved by the inaction of the respondent State officials in not
granting the retiral and other consequential benefits, the
petitioner invoked the extraordinary jurisdiction of this Court
under Article 226 of the Constitution seeking direction upon the
respondents to ensure payment of all his retiral and other
consequential benefits such as gratuity, leave encashment and
pension without deduction of 10% and total amount of retiral
benefits as per 7th Revised Pay Scale with statutory interest.
3. The brief facts, of the case are that while the
petitioner was on deputation at MCE Motihari, he was Principal
In charge of the college from 07.12.2011 to 15.01.2017. The
Motihari College of Engineering is a State Government owned
institution under the administrative control of the Department of
Science and Technology, Government of Bihar. When the
petitioner was the Principal In charge of the College, he was
authorised to conduct some skill development programme in 6
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
3/19
Bordering Blocks of the district under Border Area
Development Programme funded by the Central Government.
The petitioner was nominated as Principal-cum-Chief
Coordinator for conduct of skill development programme. On
account of alleged charges of financial irregularities, Vigilance
(Patna) P.S. Case No. 27 of 2018 corresponding to Special Case
(Vigilance) No. 16/18 was instituted against the petitioner and
other accused persons.
4. During the pendency of the aforenoted criminal case
the petitioner came to be superannuated on 31.07.2019 and thus
the respondent authorities have been pleased to sanction 90% of
provisional pension to the petitioner vide order bearing No. 194
dated 20.01.2020. The respondent authorities made it clear that
the gratuity, leave encahsment and 10% of pension could not be
sanctioned by the competent authorities in view of the
provisions of rule 43(c) and 43(d) of the Bihar Pension Rules,
1950 (hereinafter referred to as the 'Rules, 1950') on account of
pendency of the criminal case.
5. Mr. Anand Ojha, learned Advocate for the
petitioner, by pressing the present writ petition has primarily
submitted that the rules regarding grant of pension governs
under the statutory rules and undoubtedly in the absence of any
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
4/19
statutory provisions for retaining the pension, the order passed
by the authorities are illegal. Drawing the attention of this
Court, especially to rule 43(b) of the Bihar Pension Rules, 1950,
he contended that the State Government has the
power to withhold or withdraw pension or any part
of it when the pensioner is found guilty of grave
misconduct either in a departmental proceeding or
judicial proceeding. Thus t h e provision does not
empower the State to invoke the said power while the
departmental proceeding or judicial proceeding is pending. The
power under rule 43(b) can be invoked only when proceedings
are concluded finding guilty and not before. Referring to rule
43(c) which came into force on 19.07.2012, the learned
Advocate further contended that it clearly speaks that where the
departmental proceeding or judicial proceeding in which the
prosecution has been sanctioned against such government
servant, initiated during the service period of the government
servant, is not concluded till the retirement of the government
servant, the amount of provisional pension shall be less than
maximum admissible amount of pension but shall in no case be
less than 90%.
6. The issue as to whether the leave encashment of a
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
5/19
government employee besides gratuity can be withheld under
the provisions of the Bihar Pension Rules in view of statutory
provision as contained in rule 43(c) of the Bihar Pension Rules,
1950 came to be considered by the Full Bench of this Court in
the case of Arvind Kumar vs. State of Bihar, 2018(2) PLJR
933. The learned Full Bench of this Court in unambiguous terms
held that an employee who is facing departmental enquiry or
judicial proceeding on the date of his superannuation would be
entitled to provisional pension which would include gratuity to
the tune of amount not less than 90%. So far as the issue of
leave encashment is concerned which did not provide under the
Pension Rules, the learned Full Bench has observed that when
terms and conditions with regard to encashment of leave is not
governed by any statutory provision and when the same is
granted by an executive or administrative decision of the State
Government so long as the administrative decision to withhold
encashment of earned leave subsists, then on the happening of
such circumstances as are contemplated, we see no reason to
hold that the leave encashment can be granted even in cases
where the employee at the time of retirement is facing
departmental or judicial proceeding. It has further been clarified
that the government is well within its power in withholding
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
6/19
leave encashment if the circumstances require to do so.
7. Explaining the aforenoted provisions, Mr. Ojha,
learned Advocate has further highlighted the provision of rule
43(d) of the Bihar Pension Rules, 1950 on the strength of which
the respondent authorities have withheld full gratuity of the
petitioner. In sum and substance, rule 43(d) empowers the State
authorities that full amount of gratuity may be withheld, till the
final conclusion of the departmental or judicial proceeding; if a
government servant is facing departmental or judicial
proceeding on the date on which he superannuates, provided
that where departmental proceedings has been initiated under
rule 19 of the Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005. To be noted that rule 43(d) of
Rules, 1950 brought in force vide Memo No. 77 dated
21.01.2019.
8
. The question as to whether the rigors of rule 43(d)
apply retrospectively so as to deprive a pensioner from getting
his admissible gratuity amount, was under consideration before
the learned co-ordinate Bench of this Court in the case of Dr.
Aquil Ahmad vs. The State of Bihar since reported in 2021(1)
PLJR 293. The learned coordinate Bench in its penultimate
paragrpah no. 33 has held as follows:
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
"33. Thus, considering the provisions of the
payment of Gratuity Act, the judgment of Hon'ble
Full Bench of this Court in the case of Arvind
Kumar Singh (supra) and that of Hon'ble
Supreme Court in Dr. Hira Lal's case as also the
fact that the amendment in Rule 27 by way of
substitution and then by inserting a new
provision such as sub-rule (d) of Rule 43 in the
Bihar Pension Rules 1950 have come into force
w.e.f. 21.01.2019 the respondents cannot apply
those provisions with a retrospective effect so as
to take away the vested right of the petitioner to
receive his gratuity amount in terms of the settled
law in the case of Arvind Kumar Singh (supra).
Any judgment of this Court cannot be negated by
bringing a legislation much less by way of a rule
framed under Article 309 of the Constitution by
applying the same with retrospective effect. Such
amendment will only be prospective in nature.
Judgment of the Hon'ble Supreme Court in
Madan Mohan Pathak v. Union of India reported
in (1978) 2 SCC 50 : AIR 1978 SC 803 is an
authority on this point. Taking recourse to the
amendments the petitioner cannot be deprived of
his vested right to receive the gratuity amount in
terms of the law laid down by Hon'ble Full Bench
in Arvind Kumar Singh (supra) which has been
virtually approved by Hon'ble Supreme Court in
the case of Dr. Heera Lal (supra)."
9. In order to buttress his another fold of submission,
he has taken this Court to the explanation of rule 43 of Rules,
1950 and vigorously contended that a judicial proceeding shall
be deemed to have been instituted in a case of criminal
proceeding, on the date on which a complaint is made or
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
chargesheet is submitted to a criminal court.
10. Admittedly in the case in hand the investigation in
relation to Vigilance (Patna) P.S. Case No. 27 of 2018,
corresponding to Special (Vigilance) No. 16/2018 is still on-
going. It is worth mentioning that till date no chargesheet has
been submitted in the present case, much less against the
petitioner. Once the chargesheet is not submitted, in no stretch
of imagination, judicial proceeding shall be deemed to have
been initiated; thus invocation of rule 43(d) withholding full
gratuity and leave encashment is not at all sustainable in the
eyes of law, is the contention of the learned Advocate for the
petitioner. Learned Advocate for the petitioner further urged that
when the words used in the statute are clear; plain reading is to
be accorded. The Legislatures also use words carefully to cover
the entire gamut of circumstances and to avoid any instance of
ambiguity. The courts always lean against any interpretation
which renders the scheme of statute unworkable. The principles
of statutory construction had been explained in various
judgment rendered by the Hon'ble Supreme Court. To buttress
his submission, reliance is placed on Jaishri Laxmanrao Patil
v. State of Maharashtra, (2021) 8 SCC 1 wherein the Hon'ble
Supreme Court reiterating the principle of interpretation in
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
various judgments has concluded that there cannot be
disagreement with the proposition that where the provisions of
the statute or it wordings are ambiguous, the first attempt should
be to find meaning, through internal aids, in the statute itself.
Failing this, it is open to the court to find meaning, and resolve
the ambiguity, by turning to external aids, which include
Statements of Objects and Reasons, as well as parliamentary
reports, or debates in Parliament. It is a trite law that the court
would ordinarily take recourse to the golden rule of literal
interpretation.
11. Learned Advocate for the petitioner lastly
contended that the pension and gratuity not being a bounty, the
pensioner has right to receive pension by virtue of the rules. It is
neither a gratuitous gift nor a matter of discretion of the officers
of the Department. The right to pension is a quid pro quo for
having rendered services to the employer. The payment of
pension or any decision impacting such right or
curtailing/withholding any right to pension shall only be as per
the provisions of the rules. Reliance has also been placed on a
judgment rendered by the Hon'ble Supreme Court in the case of
D.S. Nakara v.Union of India, (1983) 1 SCC 305 and State of
Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210.
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
12. Per contra, learned Government Advocate
referring to the averments made in the counter affidavit as well
as the supplementary counter affidavit submits that in exercise
of powers conferred under Article 309 of the Constitution of
India the amendment has taken place in the Bihar Pension
Rules, 1950. Rule 43(d) attracts, if any departmental or judicial
proceeding is pending against the government servant at the
time of his retirement, which empowers the State Government
to withhold full amount of gratuity till the final conclusion of
departmental or judicial proceeding. The gratuity, leave
encashment and 10% of pension were not sanctioned by the
competent authority because a criminal case is pending against
the petitioner, which was lodged against him much before his
superannuation. It is further contended that the Government is
well within its power to withhold leave encashment when an
employee is facing criminal case or judicial proceeding under
the executive instructions issued by the State Government which
still holds the field good. The petitioner has been found indulge
in financial irregularities and there is every chance of recovery
of defalcation of amount, if the petitioner is found guilty in
judicial proceeding.
13. Learned Advocate for the Vigilance on instructions
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
also apprised this Court that till date chargesheet has not been
submitted in the present case. It is fairly submitted by the
learned Advocates for the Vigilance as well as the Accountant
General that the issue requires interpretation of provision and its
applicability.
14. This Court has carefully heard the learned
Advocates for the respective parties and also perused the
materials available on record. The question for consideration
before this Court is in narrow compass as to whether a
departmental proceeding shall be deemed to have been instituted
in the case of criminal proceeding on the date on which the FIR
is lodged or charge sheet is submitted or mere lodging of the
FIR would be suffice to invoke the provision of rule 43(d) of
Rules, 1950, which empowers the State Government to withhold
gratuity, if a government employee is facing
departmental/judicial proceeding on the date he superannuates.
15. Admittedly rule 43(d) of Rules, 1950 came into
force on 21.01.2019 vide amendment under Memo Order No. 77
dated 21.01.2019. The issue with regard to retrospective
application of rule 43(d) of Rules, 1950 has been answered by
the learned coordinate Bench of this Court in the case of Dr.
Aquil Ahmad (supra). It would be relevant to quote paragraph
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
nos. 20, 21, 27 and 28.
"20. To come out of the rigorous of the
Full Bench judgment of this Court the
amendments were brought by substituting Rule
27 and then by inserting one sub-Rule (d) after
Rule 43(c) of the Bihar Pension Rules. In these
circumstances now the question arises as to
whether the substituted provision of Rule 27 and
newly inserted Rule 43(d) of the Bihar Pension
Rules vide Memo No. 77 dated 21.01.2019 may
be applied with a retrospective effect so as to
deprive the petitioner from getting his
admissible gratuity amount. This Court has
already quoted the Memo No. 77 dated
21.01.2019 in the preceeding paragraphs.
21. While dealing with the right of a retired
employee to get his gratuity amount this Court
would be required to take into consideration the
relevant provisions of the Gratuity Act 1972.
The background of the coming into force of the
payment of gratuity Act was the fact that prior
to this enactment the different States were
having different enactment with respect to the
payment of gratuity to the employees. It was
thought necessary to have a central law on this
subject so as to ensure an uniform pattern of
payment of gratuity to the employees throughout
the Country and it was also required to avoid
different treatment to the employees of the
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
establishments having branches in more than
one State. The Statement of Objects and
Reasons behind enactment of the Payment of
Gratuity Act, 1972 may be referred to in this
regard. According to Section '4' of the Payment
of Gratuity Act the gratuity shall be payable to
an employee on the termination of his
employment after he has rendered continuance
service for not less than five years and one of
the modes of termination of the employment is
his superannuation from service. Under Section
4(6) employer has power to forfeit gratuity
payable to an employee in certain
circumstances. Section 4(6) of the Act of 1972
reads as under:--
"4(6) Notwithstanding anything contained in
sub-section (i),--
(a) the gratuity of an employee, whose services have been
terminated for any act, wilful omission or negligence
causing any damage or loss to, or destruction of,
property belonging to the employer, shall be forfeited
to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee [may be wholly
or partially forfeited].
(i) if the services of such employee have been
terminated for his riotous or disorderly conduct or
any other act of violence on his part; or
(ii) if the services of such employee have been
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
terminated for any act which constitutes an offence
involving moral turpitude, provided that such
offence is committed by him in the course of his
employment."
27. So far as the retrospective applicability of a
provision contained in a Statute is concerned,
again it is well settled law that the provisions
which are brought by way of an amendment which
will have an effect of depriving a person from
getting his vested rights and taking away the
benefits such as post retiral dues cannot be given a
retrospective effect unless it is so provided
specifically in the Statute/Rule or by necessary
intendment.
28. On the issue of retrospective applicability of a
statute or statutory provision touching upon the
existing rights Lord Blanesburg while delivering
the opinion of the Privy Council in the case of
Delhi Cloth & General Mills Ltd. v. C.I.T., Delhi
reported in AIR 1927 PC 242 observed
"Provisions, which, if applied retrospectively,
would deprive of their existing finality or orders,
which, when the statute came into force, were final,
are provisions which touch existing rights.
Accordingly, if the section now in question is to
apply to orders final at the date when it came into
force, it must be clearly so provided".
16. In view of the settled proposition, this Court has no
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
hesitation to hold that the amendment in rule 27 of Rules, 1950
by way of substituting and inserting sub rule (d) of rule 43 in
the Bihar Pension Rules, 1950 have no retrospective application.
This Court had also occasion to deal with the similar issue in the
case of Param Hans Kumar Singh vs. The State of Bihar,
2023(1) PLJR 635. This Court reiterating the aforenoted
proposition rendered in the case of Arivind Kumar Singh
(supra) and Dr. Akil Ahmad (supra) has held the impugned
order to be not sustainable in law whereby the full gratuity,
leave encashment and other retiral benefits were withheld by the
State respondent authorities in terms of rule 43(d) of the Bihar
Pension Rules irrespective of the fact the petitioner of the said
case retired from his post on 31.12.2012.
17. Now coming to the another issue as to whether in
the case in hand where the investigation is still going on and the
chargehseet has not been submitted, in such circumstances
whether the judicial proceeding shall be deemed to have been
instituted, when the criminal case has been instituted much prior
to the superannuation of a person.
18. Before parting with the final outcome it would be
apt to quote explanation (a) and (b) of rule 43 of Rules, 1950
which reads as follows:
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
"Explanation:- For the purposes of the rule-
(a) departmental proceeding shall be deemed
to have been instituted when the charges
framed, against the pensioner are issued to
him or, if the Government servant has been
placed under suspension from an earlier date,
on such date; and
(b) judicial proceedings shall be deemed to
have been instituted: -
(i) in the case of criminal
proceedings, on the date on
which a complaint is made or a
charge-sheet is submitted, to a
criminal court; and
(ii) in the case of civil
proceedings, on the date on
which the complaint is
presented, or as the case may
be, an application is made to a
civil Court."
19. Bare reading of the aforesaid explanation, two
expressions complaint and charge sheet have been used in order
to cover all the contingencies of judicial proceeding. Section
2(d) of Cr.P.C. defines the complaint whereas Section 173 refers
to the final report submitted by the police after investigation.
The final report connotes conclusion of the investigation either
when the investigation culminated into finding of prima facie,
case against the accused persons or to not sent up the accused
persons for trial in case no prima facie material is found against
the accused persons. The legislature while answering the
explanation has obviously given emphasis on a, prima facie,
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
case after conclusion of the investigation. The FIR only denotes
first information with regard to some cognizable offence which
set the law into motion to investigate and proceed in accordance
with law and ensure submission of final report after collecting
material during course of investigation which culminates in
cognizance being taken by the Magistrate.
20. It is trite that duty of judicature is to act upon the
true intention of the legislature. The courts have, therefore, to
look essentially to the words of the statute to discern the
'referant' aiding their effort as much possible by the context.
The first and primary rule of construction, as has been observed
by Gajendragadkar, J. in the case of Kanai Lal Sur vs.
Paramnidhi Sadhukhan, AIR 1957 SC 907; is that the
intention of the Legislature must be found in the words used by
the Legislature itself. The question is not what may be supposed
to have been intended but what has been said. When the words
of statute are clear, plain and unambiguous, i.e., they are
reasonably susceptible to only one meaning, the Courts are
bound to give effect to that meaning irrespective of
consequences.
21. Bare reading of explanation (b) of rule 43 of Rules,
1950 gives only one interpretation that judicial proceeding in
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
case of criminal proceeding shall be deemed to have been
instituted on the date on which a complaint is made or charge
sheet is submitted to a criminal court. Admittedly, in the case in
hand charge sheet has not been submitted. Thus, this Court has
no hesitation to hold that withholding of 10% of pension and
full gratuity by invoking the provisions of rules 43(c) and 43(d)
are unsustainable and accordingly directs the respondent
authorities to ensure payment of 10% of remaining pension and
full gratuity, preferably within a period of eight weeks from the
date of receipt/production of a copy of this order.
22. So far the payment of leave encashment is
concerned, this field governs by the executive instruction
bearing No.4564 dated 06.07.1993. The notification of the State
Government clearly stipulates that the leave encashment may be
withheld till finalization of departmental enquiry or judicial
proceeding in case where there is chance of recovery of
defalcated amount after culmination of departmental proceeding
or judicial proceeding. Thus, this Court is of the opinion that it
is for the Department to consider the claim of the petitioner for
leave encashment afresh, as to whether the pending case involves
serious allegation of financial irregularity or defalcation, leading to
chance of recovery of any amount, and, thereupon, pass a
Patna High Court CWJC No.13557 of 2021 dt.06-08-2024
reasoned and speaking order within the afore-stipulated period.
23. The writ petition stands allowed to the extent
indicated hereinabove.
24. There shall be no order as to cost.
(Harish Kumar, J)
Anjani/-
AFR/NAFR AFR
CAV DATE 22.07.2024
Uploading Date 08.08.2024
Transmission Date
