Patna High Court
Md. Salim Shah 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.3202 of 2022
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Md. Salim Shah, Son of Late Md. Kitabali Shah, Resident of Mohalla-
Aliganj (Road No.20), P.S.- Chandauti, District- Gaya.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Water Resources Department,
Bihar, Patna.
2. Secretary, Water Resources Department, Bihar, Patna.
3. Chief Engineer, Irrigation Creation, Water Resources Department, Gaya.
4. Superintending Engineer, North Koel Canal Circle, Gaya.
5. Executive Engineer, North Koel Canal Division, Gaya.
6. Accountant General, Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Harshvardhan Shivsundaram, Advocate
For the Respondent/s : Mr. Sudhanshu Bhushan, AC to GP- 8
For the AG, Bihar : Mr. Arun Kumar Arun, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 06-08-2024
Heard Mr. Harshvardhan Shivsundaram, learned
Advocate for the petitioner, Mr. Sudhanshu Bhushan, learned
Advocate for the State and Mr. Arun Kumar Arun, learned
Advocate for the Accountant General, Bihar.
2. The petitioner was appointed as Chowkidar on
01.02.1975
and after attaining the age of superannuation, he
retired on 30.06.2017 during currency of suspension. In the year
1996, while the petitioner was posted in North Koel Canal
Circle, Gaya, his name was implicated in a criminal case,
bearing Chandauti P.S. Case no. 153 of 1996 registered for the
Patna High Court CWJC No.3202 of 2022 dt.06-08-2024
offences punishable under Sections 302/34 of the Indian Penal
Code. The petitioner faced the trial and finall convicted and
sentenced to undergo life imprisonment vide judgment dated
17.04.2001 in S.T. No. 327 of 1999.
3. On being aggrieved by the judgment of
conviction and sentence of life imprisonment, the petitioner
preferred Cr. Appeal (DB) No. 221 of 2001, which is still
pending.
4. On account of conviction, aforenoted, the
petitioner was put under suspension by the Superintending
Engineer, North Koel Canal Circle, Gaya vide order dated
06.06.2001. On being released from custody, the petitioner
submitted his joining and prayed for revocation of his
suspension, but the same was turned down. The petitioner also
approached this Court in C.W.J.C. No. 6478 of 2007, which also
came to be dismissed vide order dated 09.08.2007.
5. In the light of the order of this Court, the Chief
Engineer, Water Resources Department, Aurangabad vide letter
no. 3075 dated 18.09.2007 directed to continue the suspension
of the petitioner till final judgment is passed in Cr. Appeal (DB)
No. 221 of 2001 preferred by the petitioner.
6. This is the admitted fact that the petitioner was
Patna High Court CWJC No.3202 of 2022 dt.06-08-2024
not subjected to any departmental proceeding on account of
conviction and was allowed to superannuate on 30.06.2017. On
being superannuated, the petitioner again approached before this
Court in C.W.J.C. No. 20272 of 2018 for grant of his post-retiral
benefits and other dues. The aforesaid writ petition came to be
disposed of on 24.08.2020 with a liberty to the petitioner to file
representation for redressal of his grievance.
7. The petitioner represented before the Chief
Engineer, Water Resources Department, Gaya enclosing the
copy of the order of this Court. The matter travelled up to the
Secretary, Water Resources Department, Bihar, Patna, who was
pleased to modify the order of the Chief Engineer and directed
to accord 90% of provisional pension and, accordingly, the same
was sanctioned vide order no. 498 dated 07.04.2021.
8. In the aforesaid premise, 90% of the provisional
pension of the petitioner was fixed vide letter no. 351 dated
14.07.2021, but without according the benefit of 5th, 6th and 7th
Pay Revision.
9. A counter affidavit has been filed on behalf of
respondent nos. 1 to 5 as well as respondent no.6.
10. Learned Advocate for the State adverting to the
averments made in the counter affidavit has vigorously argued
Patna High Court CWJC No.3202 of 2022 dt.06-08-2024
that the petitioner had earlier moved this Court in C.W.J.C. No.
6478 of 2007 for revocation of his suspension. The said writ
petition came to be dismissed on 09.08.2007 with an
observation "that the conviction of the petitioner has not been
stayed by the High Court in Cr. Appeal, bearing Cr. Appeal
(DB) No. 221 of 2001, pending before this Court, hence any
claim or relief either in the form of reinstatement or withdrawal
of the present suspension, the petitioner has to prove innocence
in the criminal appeal." Thus in such circumstances, any
retirement benefit cannot be granted to him till the final decision
of the appeal.
11. Learned Advocate for the State also contended
that Rules 43(c) and (d) of the Bihar Pension Rules, 1950
(hereinafter referred to as 'the Rules, 1950') which governs the
case of the petitioner makes it clear that the petitioner is not
entitled for any benefit, save and except 90 % provisional
pension, which has already been paid to the petitioner. It is also
the contention of the State that the GIS and GPF amount had
already been paid to the petitioner.
12. This Court has heard the rival contention of the
learned Advocate for the respective parties.
13. Rule 43(c) of the Rules, 1950 clearly stipulates
Patna High Court CWJC No.3202 of 2022 dt.06-08-2024
as follows:
"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 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)."
14. Bare reading of the aforenoted provision, it is
evident that Rule 43(c) of the Rules, 1950 would thus be
attracted only in a case where a Government servant is facing
departmental or judicial proceeding, the date on which he
superannuated. Admittedly, the case in hand, the petitioner had
already been convicted way back in the year 2001, much before
the date of his superannuation; thus the judicial proceeding
already concluded.
15. In the opinion of this Court, application of Rule
43(c) and 43(d) of Rules, 1950 has no application.
16. It would be worthy to note that full pension is
admissible under the Rules, 1950 is not to be given as a matter
of course, unless the service rendered has been really approved.
The State Government reserve to themselves the powers of
revising an order relating to pension passed by the Sub-ordinate
Patna High Court CWJC No.3202 of 2022 dt.06-08-2024
authorities under their control, if they are satisfied that the
service of the pensioner was not thoroughly satisfactorily or that
there was proof of grave misconduct on his part while in
service. Further Rule 43(a) of the Rules, 1950, empowers the
State Government to withhold or withdraw a pension or any part
of it, if the pensioner is convicted of serious crime or be guilty
of grave misconduct.
17. In the opinion of this Court, once an employee
is convicted for a serious offence, the disciplinary authority or
the Government are well within its power to withhold or forfeit
the pension in accordance with the provisions prescribed under
the Rules, 1950.
18. However once the decision has been at the level
of the Secretary of the Department that the petitioner shall be
entitled to get 90% of the provisional pension, in the opinion of
this Court, the petitioner shall be entitled to get revision of his
provisional pension, which is automatically attached with the
pension, otherwise it would amount to an empty formality of
providing pittance in view of pending criminal appeal. This
Court also cannot lose sight of the fact that despite the petitioner
being convicted way back in the year 2001, he has never been
put in a departmental proceeding and he has been allowed to
Patna High Court CWJC No.3202 of 2022 dt.06-08-2024
superannuate with a stipulation that all the retiral benefit shall
be abide by the decision of the Appellate Court.
19. In such circumstances, this Court directs the
respondent no.2 to consider the claim of the petitioner for
revision of his provisional pension on account of 5th, 6th and 7th
pay revision.
20. It is expected that the respondent no.2 shall take
a final decision and ensure payment of the admissible revised
90% of provisional pension to the petitioner preferably within a
period of eight weeks from the date of receipt/production of a
copy of this order.
21. Suffice it to say that so far as the claim of the
petitioner for grant of gratuity and final pension are concerned,
the same shall be abide by the outcome of the Cr. Appeal (DB)
No. 221 of 2001.
22. The writ petition stands disposed of.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 13.08.2024
Transmission Date NA
