Patna High Court
Anil Kumar vs The State Of Bihar on 23 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16451 of 2022
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Anil Kumar, son of Late Indra Dev Prasad Singh, R/o P.C. Colony, CC/22,
Kankarbagh, P.S. Kankarbagh, District-Patna, PIN-800020.
... ... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Secretary, Department of Science and Technology, Government of
Bihar, Patna.
3. The Joint Secretary, Department of Science and Technology, Government of
Bihar, Patna.
4. The Deputy Secretary, Department of Science and Technology, Government
of Bihar, Patna.
5. The Treasury Officer, Vikash Bhawan, Patna.
6. The Principal, Shershah College of Engineering, Sasaram.
7. The Accountant General, Bihar, Patna.
... ... Respondents
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Appearance :
For the Petitioner/s : Ms. Nivedita Nirvikar, Sr. Advocate
Mr. Arya Achint, Advocate
For the Resp-State : Mr. Prateek Kumar Sinha
For the AG, Bihar : Mr. Ram Yash Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 23-01-2024
Heard Ms. Nivedita Nirvikar, learned senior counsel,
along with Mr. Arya Achint, learned counsel for the petitioner;
Mr. Prateek Kumar Sinha; learned counsel for the State and Mr.
Ram Yash Singh, learned counsel for the Accountant General,
Bihar.
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
2/16
2. The petitioner by filing the present writ petition
under Article 226 of the Constitution of India, seeking a
direction upon the Principal Secretary, Department of Science
and Technology, Government of Bihar to ensure payment of the
remaining 10% of pension amount as well as full gratuity and
leave encashment. He further sought quashing of the letter no.
1270 dated 06.05.2022 issued by the Principal Secretary,
Department of Science and Technology, Government of Bihar,
to the extent whereby and whereunder the respondent no.2, has
withheld 10% of his pension amount.
3. The short facts, which led to filing of the present
writ petition, is/are that the petitioner, who had joined on
01.06.1984
on the duly sanctioned post of Assistant Professor of
Chemistry in the Department of Science and Technology in
Gaya College of Engineering, affiliated with Magadh
University, Bodhgaya, which is now affiliated with Aryabhatta
Knowledge University, had applied for 43rd Orientation Course
and got selected vide notification of University Grants
Commission (UGC) and, accordingly, he was awarded with
certificate vide 09/05 issued by UGC, Academic Staff College.
4. Having been found eligible for promotion, the
petitioner had applied for his promotion under Career Advanced
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
Scheme (CAS) and the Departmental Promotion Committee
(DPC) on being satisfied and after proper verification of the
relevant documents, recommended the name of the petitioner
for promotion to the Bihar Public Service Commission (BPSC)
on 24.08.2011. Consequent thereto, the BPSC under CAS Rules,
promoted the petitioner on the post of Associate Professor.
Accordingly, the Department of Science and Technology vide its
Notification dated 23.09.2011 issued a notification for
promotion of all the eligible candidates, including the petitioner.
5. The petitioner on being promoted to the post of
Associate Professor, he was posted as Acting Principal
(Chemistry) in Shershah College, Sasaram, where he joined on
11.12.2019 and was superannuated on 31.03.2022.
6. It is the case of the petitioner that in his entire
career, there had never been any departmental proceeding or any
criminal case at the behest of the department. However, all of a
sudden, the Principal Secretary, Department of Science and
Technology, Government of Bihar, vide its letter no. 1270 dated
06.05.2022, withheld 10% of the pension amount payable to the
petitioner on the pretext of a false complaint case filed by one
Rajendra Prasad Singh, against whom the petitioner had
instituted an FIR pursuant to the direction of the Department
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
and, as such, carrying grudges against the petitioner.
7. While assailing the impugned order as noted
hereinabove, learned senior counsel for the petitioner, took this
Court to the background of the complaint, which is made the
basis of withholding of 10% pension, gratuity as well as leave
encashment of the petitioner. She submitted that allegation
levelled in the complaint regarding the forged certificate of 43 rd
Orientation Course issued by the University Grants
Commission, Academic Staff College, Patna University is,
out-and-out a frivolous allegation without any foundation and
this allegation has been questioned on several occasions and on
different forums earlier, and the matter has been inquired by the
different authorities of the Department even at the level of the
Principal Secretary (Home Department), Government of Bihar
in details on the direction of the Vigilance Court in connection
with Complaint Case No. 56/11, but in none of them any
illegality and correctness in respect of allegation of forged
certificate is found.
8. Learned senior counsel, further took this Court to
the inquiry report of the Principal Secretary (Home Department)
dated 01.07.2013 as contained in Annexure-1 to the reply to the
counter affidavit, wherein while observing that the allegation
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
requires deep and scientific investigation by a skilled
investigation agency to ascertain the genuineness or otherwise
of the records of the UGC Academic Staff College, Patna
University, Patna; it is also reported that the Department of
Science and Technology, Government of Bihar, is found to have
acted bonafidely on the letter containing the verification report
of the Director, UGC Academic Staff College, Patna University,
Patna, about the participation of accused Dr. Anil Kumar in the
43rd Orientation Programme before granting promotion to him.
It has further been noted that, "nothing was brought to my
notice about monetary transaction between the accused persons
for showing any favour to accused Dr. Anil Kumar by abusing
their position as public servant".
9. Having taken note of the afore-noted report
submitted by the Principal Secretary, (Home Department),
Government of Bihar, the complaint petition giving rise to
Special Case No. 56/11, came to be dismissed vide order dated
21.09.2013. However, while dismissing the aforesaid case, the
learned Court of Special Judge, had observed that from perusal
of the inquiry report, it is clear that no offence under the
Prevention of Corruption Act, 1988 is attracted against the
accused persons named in the complaint petition. But so far as
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
the offences related to I.P.C. are concerned, they are not in the
domain of this Court because this Court has got jurisdiction only
when P.C. Act is concerned. However, the complainant is at
liberty to approach the Court where ordinary jurisdiction of
I.P.C. lies.
10. The order dated 21.09.2013 was put to challenge
before this Court in Criminal Revision No. 128/2014, which
also came to be dismissed vide order dated 16.05.2014 with a
categorical observation that except for making sweeping
allegation against the accused of indulging in corrupt practices,
there is nothing to drive whom such allegation.
11. Taking shelter of the liberty as was granted by the
learned Special Judge, Vigilance Court, vide order dated
21.09.2013, one another case bearing Complaint Case No.
2475/2018 was filed and subsequently the learned Court has
taken cognizance for the offences under Sections 419, 418, 467,
468 and 471 of the Indian Penal Code, which is pending
adjudication before the learned A.C.J.M., Patna.
12. Learned senior counsel for the petitioner further
submitted at the Bar that the Vigilance Department vide its letter
no. 3979 dated 24.10.2018 had also informed to the Principal
Secretary, Science and Technology Department, Government of
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
Bihar that after the departmental review of the said report, it was
decided by the Monitoring Department that it does not seem
appropriate to take any further action or inquiry against the
spirit of the order passed by the learned Special Court, Vigilance
and the Hon'ble Patna High Court. The above remarks of the
Joint Secretary, Rajya Pravaidik Shiksha Parishad, finally
presented before the Hon'ble Minister of the Department to
obtain the order/proposal to close the matter and the Hon'ble
Minister after perusal of the file and notings of the Additional
Secretary, recommended for closure of the matter.
13. Despite the afore-noted facts, the Principal
Secretary, Department of Science & Technology, Government of
Bihar vide its letter dated 30.05.2019 as contained in Annexure-
4 to the reply of the counter affidavit, wrote to the Additional
Chief Secretary, Vigilance Department, Patna, Bihar to get the
matter inquired and submit a report, so that the record be placed
to the higher authorities for high level order(s). Whereafter, a
report has been submitted along with the copy of complaint case
and order taking cognizance, ultimately leading to show cause
followed by departmental proceeding under rule 43(b) of the
Bihar Pension Rules, 1950.
14. In support of the submissions, while challenging
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
the action of the respondents, learned senior counsel, made
reliance on various judgments, including the cases of Hira Lal
v. The State of Bihar [(2020) 4 SCC 346], State of Jharkhand
v. Jitendra Kumar Srivastava [(2013) 12 SCC 210] and
Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330],
wherein the Hon'ble Apex Court clearly held that the right to
receive pension is recognized as a right to property and thus no
person shall be deprived of his property, save by authority of
law.
15. Per contra, learned counsel for the respondent(s),
submitted that the writ petitioner had obtained the benefit of
promotion on the basis of forged document produced by him
followed by a show-cause notice upon him. However, on being
dissatisfied with the explanation given by the petitioner, the
Science and Technology Department vide its letter no. 1889
dated 30.05.2019 requested the Vigilance Department to verify
the document(s). In response thereto, the Vigilance Department
in its inquiry, has found the allegation against the petitioner true
and it has further been informed that a complaint bearing
Complaint Case No. 2475 of 2018, is already pending in the
court of learned A.C.J.M., Patna. Considering the nature of
allegation against the petitioner, the Department has also
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
resolved to initiate a departmental proceeding against the
petitioner under rule 43(b) of the Bihar Pension Rules, 1950 (for
short "the Rules, 1950") vide its letter contained in Memo No.
658 dated 16.02.2023.
16. Further submission has been made that the
impugned order withholding the 10% of pension, gratuity and
leave encashment has been passed strictly in accordance with
the rule 43(c) and rule 43(d) of the Rules, 1950, which clearly
empowers the State Government to withhold the 10% of
pension and entire gratuity where the departmental proceeding
or judicial proceeding is pending against the government servant
at the time of retirement. Since in the present matter, Criminal
Complaint Case No. 2475 of 2018 is pending before the Special
Judge and the same was instituted much before the retirement of
the petitioner and the department proceeding under rule 43(b) of
the Rules, 1950 is still pending, the Government has rightly
withheld the entire gratuity and leave encashment along with
10% pension of the petitioner.
17. This Court has heard the learned counsel for the
respective parties at length and also perused the materials
available on record.
18. Before considering the submissions made by the
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
learned counsels for the respective parties, it would be proper to
quote rule 43(c) and rule 43(d) of the Rules, 1950 for proper
appreciation of the matter:-
"43(c) Where the departmental proceeding
or judicial proceeding, in which 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).
43(d) if any departmental or judicial
proceeding is pending against the govt. servant at
the time of retirement, full amount of gratuity may
be with held till the final conclusion of the
departmental or judicial proceeding and issuance
of order accordingly:
Provided that where Departmental
proceedings has been instituted under Rules 19 of
Bihar Government Servant Classification, Control
and Appeal Rules, 2005 (As amended from time to
time) for imposing minor penalties under Rule
14(i) (ii) and (v) of the said rules, payment of
gratuity may be made to the government servant."
19. From the reading of the rule 43(c) of the Rules,
1950, which has been duly incorporated on 19.07.2012, there is
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
no iota of doubt that the amount of provisional pension shall be
less than maximum admissible amount of pension but shall in
no case be less than 90% where the departmental proceeding or
judicial proceeding in which the prosecution has been
sanctioned against the government servant during his service
period has not concluded till the date of his retirement. Further
rule 43(d) of the Rules, 1950, which has been incorporated
under the Rules, 1950 vide Notification No. 77 dated
21.01.2019 empowers the State Government that if the
departmental or judicial proceeding is pending against the
government servant at the time of retirement, full amount of
gratuity may be withheld till the final conclusion of the
departmental or judicial proceeding and issuance of order
accordingly.
20. Now coming to the case in hand, admittedly, the
date on which the petitioner was superannuated i.e. on
31.03.2022, neither there was any departmental proceeding
against him nor he was under suspension in contemplation of a
departmental proceeding and, for the first time, the department
had decided to initiate a departmental proceeding against the
petitioner under rule 43(b) of the Rules, 1950 vide its letter as
contained in Memo No. 568 dated 16.02.2023.
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
21. Now, the question posed before this Court that as
to whether any complaint instituted by a private person against
an employee with regard to his appointment or promotion,
obtained or based upon the forged and fabricated document(s),
or for any other reason would be suffice to withhold the pension
and other retiral benefit(s) under rule 43(c) and rule 43(d) of the
Rules, 1950.
22. From a careful reading of the rule 43(d) of the
Rules, 1950, this Court is of the opinion that this rule empowers
the State Government to exercise its discretion as to whether the
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 at the time
of his/her retirement.
23. It cannot be disputed that the use of the expression
"may" is not decisive. Having regard to the context the
expression "may" used in a statute varying significance. In some
context, it is purely permissive, in others, it may confer power
and make it obligatory upon the person invested with the power
to exercise it as laid down [vide Societe De Traction ET D'
Electricite Societe Anonyme v. Kamani Engineering
Company Ltd. AIR 1964 SC 558]. It is well settled that the
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
word "may" is capable of meaning "must" or "shall" in the light
of other context. Nevertheless, it is no doubt that the word
"may" generally does not mean "must" or "shall".
24. Now coming to the context in which the word
"may" is used under Rule 43(d) of the Rules, 1950 is
exclusively with regard to withholding of full gratuity of an
employee, who is facing departmental or judicial proceeding at
the time of his superannuation.
25. Needless to observe, pension includes gratuity
under Rule 27 of the Bihar Pension Rules, 1950 and qualifies
the definition of property, protected under Article 300 A of the
Constitution of India. Pension, as is well established, is deferred
portion of the compensation for rendering long years of service.
It is a hard earned benefit, accruing to an employee in the nature
of property [vide, State of Jharkhand v. Jitendra Kumar
Srivastava (2013) 12 SCC 2010].
26. Emphasizingly, the Hon'ble Supreme Court has
held that pensionary provisions must be given liberal
construction more so as a social welfare measure. It is not a
bounty to be dispersed contrary to rules, but very basis of grant
of such pension is to facilitate a retired government employee,
live with dignity, in the winter of his life. This fundamental
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
principle must be kept in mind while taking action, depriving
benefits which ought not to be done, unreasonably, more so, on
technicalities [vide V. Sukumaran v. State of Kerala, (2020) 8
SCC 106; State of West Bengal v. Harish C. Banerjee &
Others (2006) 7 SCC 651].
27. In the afore-noted legal premise, highlighting the
eminence need and object of the pension/gratuity in a welfare
state, the word "may" used under rule 43(d) of the Rules, 1950
cannot be interpreted as the word "shall", as there are numerous
circumstances, where an employee can be subjected to judicial
proceeding on account of various other reasons unconnected to
his/her services.
28. In the case in hand, there are various reasons,
which necessitates the State Government to consider the matter
thoroughly before withholding of entire gratuity or leave
encashment as the allegation levelled by the private person has
been questioned on several occasions and on different forums
earlier, as taken note of in course of the submission made by the
learned senior counsel representing the petitioner, wherein none
of them found any, prima facie, illegality and correctness in
respect of allegation of forged certificate and once the matter
has reached up to the level of Hon'ble Minister of the
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
Department, who approved the recommendation to close the
matter and consigned the record.
29. In view of the discussions made herein above, this
Court directs the Principal Secretary, Department of Science and
Technology, Government of Bihar to revisit the matter relating
to withholding of gratuity and leave encashment of the
petitioner in view of the submissions made on behalf of the
petitioner as noted hereinabove and also in the light of the
inquiry report submitted by the Principal Secretary (Home
Department), Government of Bihar, the order of the Special
Judge, Vigilance Court as well as the order of this Court and the
decision of the Hon'ble Minister of the Department obtained in
the file.
30. The matter is hereby relegated to the respondent
no.2, the Secretary, Department of Science and Technology,
Government of Bihar, Patna to take a fresh decision in the
matter, preferably within a period of eight weeks from the
date/receipt of a production of a copy of this order.
31. It is made clear that this Court has not made any
interference in the impugned order whereby 10% of the pension
of the petitioner has been withheld on account of pendency of
judicial proceeding.
Patna High Court CWJC No.16451 of 2022 dt.23-01-2024
32. Accordingly, the writ application stands disposed
of.
(Harish Kumar, J)
rohit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 30-01-2024
Transmission Date
