Jharkhand High Court
Kaushal Kishore vs The State Of Jharkhand Through The … on 13 September, 2024
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3928 of 2022
With
W.P.(S) No. 351 OF 2024
With
W.P.(S) No. 2296 of 2024
With
W.P.(S) No. 1424 of 2022
In W.P.(S) No. 3928 of 2022
Kaushal Kishore, son of Late R.N. Singh, Resident of Ma Sureva
Bhawan, Abhimanyu Nagar, P.O. and P.S. - Chas, District - Bokaro.
... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Road Construction
Department, Govt. of Jharkhand, Project Bhawan, Dhurwa, Ranchi
2. The secretary, Building Construction Department, Govt. of Jharkhand,
Project Bhawan, Dhurwa, Ranchi
3. The Joint Secretary, Road Construction Department, Govt. of
Jharkhand, Project Bhawan, Dhurwa, Ranchi
4. The Under Secretary, Road Construction Department, Govt. of
Jharkhand, Project Bhawan, Dhurwa, Ranchi
5. The Accountant General, Jharkhand, Doranda, Ranchi
... ... Respondents
In W.P.(S) No. 351 OF 2024
Mukendra Singh, son of Sri Rajdeo Singh, Resident of Q. No. 351-A,
Road No. 4, Ashok Nagar, P.O. and P.S. - Argora, Ranchi, Jharkhand.
... ... Petitioner
Versus
1. The State of Jharkhand
2. The Secretary, Water Resources Department, Govt. of Jharkhand,
Project Building, HEC, Dhurwa, Ranchi - 834004, Jharkhand.
3. The Joint Secretary, Water Resources Department, Govt. of
Jharkhand, Project Building, HEC, Dhurwa, Ranchi - 834004,
Jharkhand.
4. The Deputy Secretary, Water Resources Department, Govt. of
Jharkhand, Project Building, HEC, Dhurwa, Ranchi - 834004,
Jharkhand.
5. The Accountant General, Jharkhand, Ranchi.
... ... Respondents
In W.P.(S) No. 2296 of 2024
Rajendra Prasad Sharma, son of Late Saryu Thakur, Resident of -
Shantipuri, Daltonganj, P.O. and P.S. - Daltonganj, District -
Medininagar, Palamau.
... ... Petitioner
RC 1
Versus
1. The State of Jharkhand, through the Principal Secretary, School
Education and Literacy Department, Government of Jharkhand, MDI
Building, Dhurwa, Ranchi.
2. The Director, Primary Education, School Education and Literacy
Department, Ranchi, MDI Building, Dhurwa, Ranchi
3. The Under Secretary, Primary Education, School Education and
Literacy Department, Government of Jharkhand, Ranchi
4. The Accountant General (A & E), Jharkhand, Ranchi.
... ... Respondents
In W.P.(S) No. 1424 of 2022
Shri Kishun @ Kishun, son of Late Mithu Prasad, resident of -
Village - Saraswatipuram, P.O. - PAC Camp, P.S. - Shahpur, District
- Gorakhpur, Uttar Pradesh.
... ... Petitioner
Versus
1. The State of Jharkhand
2. The Secretary, Agricultural, Animal Husbandry and Cooperative
Department, Government of Jharkhand, Nepal House, Doranda,
Ranchi
3. The Joint Secretary, Agricultural, Animal Husbandry and
Cooperative Department, Government of Jharkhand, Nepal House,
Doranda, Ranchi
4. The Deputy Secretary, Agricultural, Animal Husbandry and
Cooperative Department, Government of Jharkhand, Nepal House,
Doranda, Ranchi
5. The Principal Accountant General (Accounts), Doranda, Ranchi
6. The Joint Agricultural Director, Government of Jharkhand,
Hazaribagh.
... ... Respondents
CORAM: HON'BLE DR. JUSTICE S. N. PATHAK
For the Petitioners:
[in W.P.(S) No. 3928 of 2022]: Mr. Rahul Kumar, Advocate
Ms. Richa Lal, Advocate
Mr. Chaitany Vijay, Advocate.
[in W.P.(S) No. 351 of 2024]: Mr. Prashant Kumar Rahul, Advocate
Mr. Suraj Singh, Advocate
[in W.P.(S) No. 2296 of 2024]: Mr. Rahul Kumar, Advocate"
[in W.P.(S) No. 1424 of 2022]: Mr. Mukesh Bihari Lal, Advocate.
For the State:
[in W.P.(S) No. 3928 of 2022]: Mr. Om Prakash Tiwari, GP-II
Mr. Arun Kumar Dubey, AC
[in W.P.(S) No. 351 of 2024]: Mr. Ashok Kumar Yadav, Sr. SC-I
Mr. Ranjan Kumar, AC
Mr. Kunal Rana, AC
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[in W.P.(S) No. 2296 of 2024]: Mr. Prabhat Kumar, SC-II
Ms. Surabhi Rani, AC
Mr. Sushant Kumar, AC
[in W.P.(S) No. 1424 of 2022] Mr. J.F. Toppo, GA-V
Ms. Moushmi Chatterjee, AC
For the Accountant General:
[In W.P.(S) No. 3928 of 2022]: Mr. Amit Kumar Verma, Advocate
[In W.P.(S) No. 2296 of 2024] : Ms. Richa Sanchita, Advocate
[In W.P.(S) No. 1424 of 2022] : Mr. Amit Kumar Verma, Advocate
Amicus Curiae : Mr. Anoop Kumar Mehta, Advocate
Mr. Manoj Tandon, Advocate
Mr. Krishna Murari, Advocate
Mr. Sumeet Gadodia, Advocate
Mr. Indrajit Sinha, Advocate
Mr. Saurabh Shekhar, Advocate
07/ 13.09.2024 Heard the parties.
2. Apart from individual prayers made in all the aforesaid writ
petitions, common questions of law are involved in all these writ
petitions and as such they have been tagged and heard together and are
being disposed by this common order.
PRAYER OF THE PETITIONER in W.P.(S) No. 3928 of 2022
3. Petitioner has prayed for quashing of the order as contained in
Memo No. 3607(s), dated 25.11.2021 (Annexure-10), issued under the
signature of Under Secretary inasmuch as entire gratuity, commutation of
pension and 10% of the pension of the petitioner has been withheld on
account of pendency of criminal proceeding, not related or connected
with misappropriation or causing of any pecuniary loss to the State
exchequer.
Petitioner has further prayed for a direction upon the respondents to
grant him full pension along with consequential arrears, gratuity and
commutation of pension.
Petitioner has further prayed for payment of difference of salary
minus subsistence allowance for the period of suspension from
28.09.2019 to 04.11.2019.
Petitioner has further prayed for grant of benefits of 3 rd MACP due
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upon him on completion of 30 years of service i.e. on 10.08.2013 and for
revision of pay scale and disbursement of the same with consequential
arrears and also for re-computation of entire retiral dues on the basis of
revised pay scale and payment with arrears.
PRAYER OF THE PETITIONER in W.P.(S) No. 351 of 2024
4. Petitioner has prayed for quashing of letter as contained in Memo
NO. 3605, dated 28.06.2023 (Annexure-2) whereby and whereunder the
Deputy Secretary, Water Resources Department, Government of
Jharkhand has directed the Accountant General, Jharkhand to pay only
90% pension to the petitioner and has further directed to withheld
gratuity.
Petitioner has further prayed for a direction upon the respondent no.
4 to refund the recovered amount of 10% of pension and further pay full
pension and gratuity to the petitioner.
PRAYER OF THE PETITIONER IN W.P.(S) No. 2296 of 2024
5. Petitioner has prayed for quashing the order as contained in memo
no. 877, dated 10.05.2022 (Annexure-5), issued under the signature of
Director, whereby and whereunder only provisional pension to the
petitioner has been sanctioned and his gratuity has been withheld on
account of pendency of criminal case.
Petitioner has further prayed for quashing of letter as contained in
memo no. 2078, dated 25.08.2022 (Annexure-6), whereby and
whereunder, it has been communicated to the Accountant General that the
petitioner would only be entitled for payment of provisional pension and
his gratuity has been withheld on account of pendency of a criminal case.
Petitioner has further prayed for direction upon the respondents to
pay him full pension along with consequential arrears and final payment
of gratuity, which has been withheld.
Petitioner has further prayed for quashing of the part of the order
contained in Memo No. 98, dated 25.01.2022 (Annexure-4), whereby and
whereunder in terms of order dated 02.11.2021, passed in W.P.(S) No.
415 of 2021, the dismissal order of the petitioner dated 12.01.2021, has
been recalled but he has been allowed to be under suspension till
31.01.2021.
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PRAYER OF THE PETITIONER IN W.P.(S) No. 1424 of 2022
6. Petitioner, who retired on 31.12.2018 from the post of Dy.
Agricultural Director, Hazaribagh, has prayed for a direction upon the
respondents to release retirement benefits i.e. pension, gratuity, provident
fund and other retiral benefits.
Facts of the case in W.P.(S) No. 3928 of 2022
7. According to the petitioner, he was appointed to the post of Junior
Engineer under the Public Works Department, Govt. of Bihar on
10.08.1983 and had an excellent service career. He was also granted the
benefits of 1st ACP and the 2nd ACP followed by promotion to the post of
Assistant Engineer. Petitioner had become eligible for 3rd MACP with
effect from 08.10.2013 upon completion of 30 years of continuous
service. Though similarly situated persons were granted benefits of
MACP but case of the petitioner was not considered.
8. It is further case of the petitioner that while posted as an Assistant
Engineer, Building Construction Department, Lohardaga, an FIR being
Patratu (Bhurkunda) P.S. Case No. 45/2019, dated 03.02.2019 was
lodged against him along with his entire family members by his
daughter-in-law with the allegation of harassment and demand of dowry.
Petitioner was also taken into custody. After grant of bail, petitioner gave
his joining on 04.11.2019 but was informed that he had already been put
under suspension with effect from the date of his custody i.e. 28.09.2019
vide notification as contained in Memo No. 5413(s), dated 06.11.2019.
Petitioner also filed reply to the show cause dated 17.10.2019 vide his
letter dated 25.11.2019. Thereafter, suspension was revoked with effect
from 04.11.2019. Upon superannuation, GPF and GIS amounts were
released but other dues were not paid to him including difference of
salary other than subsistence allowance for the period he was put under
suspension, benefits of 3rd MACP; amount of gratuity, commutation of
pension and 10% pension.
Facts of the case in W.P.(S) No. 351 OF 2024
9. According to the petitioner, he was appointed and joined as
Assistant Engineer on 26.06.1987 at Irrigation Building, Secretariat,
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Patna and after bifurcation, he was allocated Jharkhand cadre and
transferred to Godda and thereafter to Latehar. During his tenure as
Assistant Engineer under Rural Development Special Division, Manika,
Latehar, FIR was registered vide Manika P.S. Case No. 19 of 2010 for the
offence under Sections 420, 467, 468, 406 and 120B of the Indian Penal
Code alleging therein that a false payment was shown and defalcation
was made under MNAREGA Scheme No. 69/08-09 of Village - Bari and
Govt. money was defalcated and withdrawn in the name of the villagers.
Upon enquiry, it was revealed that government money had been
withdrawn and defalcated in the name of the villagers Raj Kumar
Bhuiyan, Dineshwar Bhuiyan, Taro Devi but no payment was made and
Sanjay Kumar Singh and Pramod Bharti were involved in the alleged
misappropriation. However, petitioner was not named in the FIR but his
name came during investigation as he was Assistant Engineer of the
Scheme. After his transfer to various districts, lastly to Dumka as
Superintendent Engineer in Rural Development Special Circle, Dumka,
petitioner retired on 31.01.2023. Petitioner is aggrieved by the letter
issued vide Memo No. 3605, dated 28.06.2023 by the Deputy Secretary,
Water Resources Department, Government of Jharkhand to the
Accountant General, Jharkhand to pay only 90% pension to the petitioner
and further to withheld amount of gratuity till disposal of criminal case
pending against the petitioner.
Facts of the case in W.P.(S) No. 2296 of 2024
10. According to petitioner, he was appointed as an Assistant Teacher in
Science on 14.05.1988 in Government Middle School, Jalim, Latehar.
Thereafter, through competitive examination held for subordinate
education service in the year 1989, he was appointed as Block Education
Extension Officer on 10.04.1992 and was posted at Bero, Ranchi. During
his posting as BEEO, Chandwa during the year 2005 - 06, a false
complaint was made and entrapment was laid by the Vigilance Bureau
and thereafter, vigilance P.S. Case No. 02/2006 was registered against
him on 19.01.2006. While discharging his duty as Block Education
Extension Officer, Patratu, a memo of charge dated 05.09.2020 was
framed against the petitioner without any show-cause notice for frivolous
RC 6
allegations of not submitting reports within time and misusing his office
to coerce the teachers for purchasing insurance policies from his wife
who was an insurance agent. The memo of charge was issued jointly by
the office of the District Superintendent of Education, Ramgarh and the
Deputy Commissioner, Ramgarh and forwarded by the District
Superintendent of Education to the Director, Primary Education. After
being called, petitioner appeared before the Director, Primary Education
and was directed to give written reply, which was duly complied. The
Director, Primary Education, vide his office order, as contained in Memo
No. 1300, dated 02.11.2020, recorded the finding that petitioner was
guilty of charges and further directed for issuance of show-cause and for
his suspension. Thereafter, petitioner was suspended vide memo no.
1335, dated 10.11.2020, issued by the Deputy Director, Primary
Education. The second show-cause was issued by the Under Secretary,
Primary Education, vide memo no. 1390, dated 23.11.2020 which was
duly replied by him on 04.12.2020 clearly denying the allegations
levelled against him. Though the 31 Assistant Teachers who were
allegedly taken undue advantage from the office of the petitioner in order
to get their insurance policies, have already been exonerated and their
salaries have already been released but in case of the petitioner, the
Director, Primary Education, vide memo no. 54, dated 12.01.2021,
passed order of dismissal from the service. The said order of dismissal
was however, quashed vide order dated 02.11.2021, passed in W.P.(S)
No. 415 of 2021 with a direction for payment of backwages @50% and
for taking decision in relation to payment of retiral benefits. Thereafter,
pursuant to memo no. 98, dated 25.01.2022, the order of suspension
against the petitioner was vacated with effect from 31.01.2021 and
further direction was made to pay 50% back wages. Petitioner is
aggrieved by the provisional pension sanctioned by the respondents and
withholding of gratuity on account of pendency of criminal case.
Facts of the case in W.P.(S) No. 1424 of 2022
11. According to petitioner, after his selection, he joined the service on
01.12.1990 and was posted in different places. After bifurcation of the
State, he was allocated Jharkhand cadre. He was implicated in Special
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(ACB) Case No. 20/2017 in which he was granted bail. However, he was
suspended vide order dated 17.07.2017. After his release, he gave his
joining before the Joint Agricultural Director, Hazaribagh on 11.10.2017.
The Departmental proceeding was initiated vide notification no. 808,
dated 27.03.2018. Thereafter, vide notification no. 809, dated 27.03.2018,
petitioner was directed to join before the Joint Agricultural Director,
Hazaribagh. Thereafter, vide notification no. 3758, dated 31.12.2018,
punishment order was passed in which following punishments were
imposed:
(i) No further promotion;
(ii) Stoppage of three increments;
(iii) Final order will be passed after conclusion of criminal case.
Pursuant to notification no. 3759, dated 31.12.2018, after
revocation of suspension order, petitioner was posted as Dy. Agricultural
Director, Hazaribagh and petitioner gave his joining. Upon attaining age
of 60 years, petitioner retired from the service. Pursuant to notification
no. 1311, dated 11.06.2019, the order regarding deduction of 10%
pension for five years was passed. Petitioner is aggrieved by inaction on
part of the respondents as till date they have not finalized pension, nor
released amount of gratuity, leave encashment, provident fund etc.
though entire formalities have been completed on his part.
Arguments on behalf of the petitioners.
12. Mr. Rahul Kumar, learned counsel appearing on behalf of the
petitioner in W.P.(S) No. 3928 of 2022 argues that the allegations as
against the petitioner is purely personal in nature and not related to his
official discharge of duties and as such, putting him under suspension
with effect from 28.09.2019 was not proper, that too when he was due to
retire on 28.02.2020. Learned counsel further argues that in such facts
and circumstances of the case, there is no provision in terms of Rule 97
of the Bihar Pension Rules to restrict and deprive salary for the period of
suspension. Learned counsel further argues that after superannuation,
though the amount of GPF and GIS were released to the petitioner but
other retiral dues were kept pending for an indefinite period. Petitioner's
claim for grant of 3rd MACP was also not considered though similarly
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situated other persons have already been granted such benefits. Learned
counsel further argues that illegally and arbitrarily respondents have
sanctioned only 90% of the monthly pension and have withheld entire
amount of gratuity and commutation of pension vide Clause 5 of the
office order as contained in Memo No. 3607(s), dated 25.11.2021
(Annexure-10). Learned counsel further argues that in order to invoke
provisions of Rule 43(c) of the Pension Rules, there has to be a decision
of forfeiture based upon the pecuniary loss caused to the State Exchequer.
In the instant case, the criminal case was in relation to Section 498-A of
the Indian Penal Code and provisions of Dowry Prohibition Act, which
are purely personal in nature and in absence of any loss to the State, the
deprivation from gratuity or its withholding is wholly untenable. The
allegation as against the petitioner is purely personal and has no concern
with the official discharge of duties and as such action of respondents in
withholding 10% of his monthly pension and entire gratuity and
commutation of pension is not tenable and is fit to be quashed. Learned
counsel further argues that neither any show-cause notice has been issued
nor departmental proceeding has ever been initiated nor memo of charge
has ever been served to the petitioner and merely because of pendency of
a criminal case, the retiral benefits has been withheld.
13. Mr. Prashant Kumar Rahul, learned counsel representing petitioner
in W.P.(S) No. 351 of 2024, adopting arguments of Mr. Rahul Kumar,
argues that there is no finding in departmental enquiry or judicial
proceeding that the petitioner committed grave misconduct in discharge
of duty while in office. The right to pension is a statutory right and same
cannot be withheld. Learned counsel argues that the dues payable to the
employees including gratuity, pension etc. cannot be withheld. The
amount of leave encashment also cannot be withheld since the same is
paid in lieu of unutilized leave. Quoting Rule 43 of the Pension Rules,
learned counsel argues that the withholding of pension amount can only
be done when pensioner is found to be guilty of grave misconduct in
departmental or judicial proceeding. In the instant case, no departmental
proceeding was ever initiated nor any judicial proceeding ended in
conviction finding him guilty rather the criminal case against the
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petitioner is still pending.
14. Adopting the arguments already advanced hereinabove, Mr. Rahul
Kumar, learned counsel appearing in W.P.(S) No. 2296 of 2024 submits
that in the instant case also no pecuniary loss has been caused by any
action of the petitioner to deprive him from pension or gratuity in terms
of provisions of Section 43(b) and 43(c) of the Jharkhand Pension Rules
and as such impugned order is fit to be quashed. Learned counsel further
argues that the memo of charge was issued jointly by the Office of the
District Superintendent of Education, Ramgarh and the Deputy
Commissioner, Ramgarh who were not the disciplinary authority or the
competent authority to frame and approve charges against the petitioner.
Learned counsel further argues that the procedures established under the
provisions of Jharkhand Government Servants (Classification, Control
and Appeal) Rules, 2016 has also not been followed in relation to the
departmental proceeding. Learned counsel further argues that the
departmental enquiry was conducted in a very lopsided manner without
following the principles of natural justice. Before imposing major
penalty, the memo of charge has to be approved by the competent
authority, appointment of enquiry officer and examination and cross
examination of witnesses, which has not been followed in the instant
case. Learned counsel further argues that 31 Assistant Teachers, who
were allegedly benefitted by the petitioner in order to get their insurance
policies, have already been exonerated from the charges and their salaries
were released vide order dated 18.12.2020. On the basis of false and
frivolous allegations, petitioner has been harassed by the respondent
authorities. Learned counsel further argues that the officer who
conducted the enquiry and passed the impugned order of punishment are
same and as such, the enquiry report and the impugned order are almost
same and reflects the non-application of independent mind. The order of
dismissal is a major punishment under the Jharkhand CCA Rules, 2016
and as per Rule 17 of said Rules, no major punishment can be imposed
upon a government employee without holding an enquiry in the manner
provided under the Rules and entire copy of articles of charge, list of
documents, witness depositions and other relevant documents must be
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served upon him. The petitioner ought to have been given opportunity to
give written statement of defence, which must be taken into consideration
during hearing in disciplinary proceeding. Petitioner was due to
superannuate on 31.01.2021 and his dismissal 18 days before the
retirement by conducting a shoddy departmental proceedings smack of
malafide. Learned counsel argues that the Vigilance P.S. Case No.
02/2006 is pending in relation to demand of illegal gratification for a
work, which has already been performed by the petitioner. The said trial
is pending for 15 years and there is no justification in withholding legally
payable retiral dues. No pecuniary loss has been caused by any action of
the petitioner in order to deprive him pension or gratuity in terms of
provisions of Rule 43(b) and 43(c) of the Jharkhand Pension Rules.
Petitioner is entitled for full salary for the period of suspension from
10.11.2020 to 31.01.2021, during which he was paid subsistence
allowance only.
15. Adopting the arguments already advanced hereinabove, Mr. Mukesh
Bihari Lal, learned counsel representing petitioner in W.P.(S) No. 1424 of
2022, submits that respondents have no authority to sit tight over the
matter when petitioner has already retired from the service on
31.12.2018. Petitioner has already completed entire formalities but he has
been denied the benefits. Petitioner has worked for 28 years and one
month, in spite thereof, the respondents have not released pension and
other benefits.
16. To buttress their arguments, learned counsel places heavy reliance
upon the Judgments mentioned hereunder:
(i) Y.K. Singla Vs. Punjab National Bank and others reported in
(2013) 3 SCC 472 - Para-22;
(ii) Ram Sewak Sahu Vs. The State of Jharkhand and others reported
in 2016 SCC OnLine Jhar 1890 [W.P.(S) No. 1403 of 2010];
(iii) State of Jharkhand and others Vs. Jitendra Kumar Srivastava and
another reported in (2013) 12 SCC 210;
(iv) Dr. Hira Lal Vs. State of Bihar and others reported in (2020) 4
SCC 346;
(v) State of Jharkhand and others Vs. Laljit Prasad Sinha reported in
RC 11
2020 SCC OnLine Jhar 1624;
(vi) Shanti Devi Vs. The State of Jharkhand and others passed in
W.P.(S) No. 3987 of 2021.
Arguments on behalf of the State
17. Learned counsel representing State argues that amendment was
made in Jharkhand Pension Rules, 2000 vide Notification No. 110, dated
23.07.2018 of Department of Finance, which reads as under:
"Rule 43(c) Where any departmental or judicial proceeding is
instituted or continued against an officer/ employee who has
retired on attaining the age of compulsory retirement or otherwise,
he shall be sanctioned by the Government which instituted such
proceeding, during the period commencing from the date of his
retirement to the date on which, upon conclusion of such
proceeding, final orders are passed, a provisional pension not
exceeding the maximum pension which would have been
admissible on the basis of his qualifying service upto the date of
retirement, or if he was under suspension on the date of retirement,
upto the date immediately preceding the date on which he was
placed under suspension, but no gratuity or death-cum-retirement
gratuity shall be paid to him until the conclusion of such
proceedings and the issue of final orders thereon."
Further, the following was inserted as proviso to Rule 237 of
Jharkhand Pension Rules 2000 -
"Provided that an officer/ employee, against whom judicial or
departmental proceeding has been instituted or a pensioner
against whom any such proceeding has been instituted or
continued, shall not be permitted to commute any part of his
pension during the pendency of such proceeding."
18. Learned counsel further argues that as per Rule 43(c) of the Pension
Rule, if a departmental or judicial (criminal) proceeding is pending
against a retiring government servant, he would be sanctioned
provisional pension and his gratuity will be withheld till final order in the
departmental/judicial proceeding instituted against him. Learned counsel
further argues that if any criminal proceeding is pending against a retiring
government servant, then there is no need to institute/ start a
departmental proceeding to withhold the amount of his pension and
gratuity by applying Rule 43(c) of the Jharkhand Pension Rules, 2000.
19. Mr. Ashok Yadav assisted by Mr. Om Prakash Tiwari, learned
counsel representing State argued that under Rule 43(c), no procedure has
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been prescribed like the provisions of Rule 43(a) and (b) and as such,
there is no requirement of any hearing. The cardinal principles of natural
justice is not at all attracted. The same is applied suo motu for
withholding the pensionary benefits or gratuity. It has further been argued
that there is no limitation in proceeding and as such Rule 43(c) applies,
which is an intermediary arrangement and as such no notice is required.
20. Mr. Ashok Yadav, learned Sr.SC-I, placing heavy reliance on the
Judgment rendered in the case of Dr. Hira Lal Vs. State of Bihar and
others reported in (2020) 4 SCC 346, has tried to impress upon this Court
that Rule 43(c) finds affirmation from the Hon'ble Supreme Court as the
Hon'ble Court has clearly held that after enactment under Rule 309, the
State was fully empowered to withhold 10% of the amount of pension as
well as gratuity payable to the employee in terms of Rule 43(c) from the
date it came into existence and balance 10% to be released after outcome
of the criminal proceeding. Para-27 of the said Judgment reads as under:
"27. After Rule 43(c) was inserted in the Bihar Pension Rules
and brought into force on 19.07.2012, the State is empowered to
legally withhold 10% of the pension amount of the appellant, till
the criminal proceedings in RC Case No. 48-A of 1996 are
concluded. Consequently, the State will deduct 10% from the
pension amount w.e.f. 19.07.2012 subject to the outcome of the
criminal proceedings."
21. To buttress their arguments, learned counsel places reliance upon the
Judgments, which are mentioned hereunder:
(i) Navneet Kumar Shishu Vs. State of Jharkhand and others reported
in 2021 SCC OnLine Jhar 597 - Para-14 - held that respondent
authorities are within their jurisdiction to withhold gratuity and
10% pension of the petitioner in terms of Rule 43(c) of the
Jharkhand Pension Rules.
(ii) State of Jharkhand and others Vs. Jitendra Kumar Srivastava and
another reported in (2013) 12 SCC 210
Legal Issues
22. From the facts narrated above and the arguments advanced by the
parties, the common legal issue which has arisen in all these writ
petitions are:
(I) Whether the provision of Rule 43(c) of the Jharkhand Pension
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Rules in withholding the part of the pensionary benefit is
applicable suo motu or not?
(II) Whether there is a requirement of initiating a departmental
proceeding under Rule 43(c) of the Jharkhand Pension Rules and
thereafter withhold the part of the pensionary benefits after
complying the principles of natural justice?
23. In order to decide the legal issues involved in such types of cases,
this Court, pursuant to order dated 30.07.2024 appointed Mr. Anoop
Kumar Mehta, Mr. Manoj Tandon, Mr. Krishna Murari and Mr. Saurabh
Shekhar as amicus curiae to assist the Court. Apart from them, the Court
requested Advocates Mr. Sumeet Gadodia and Mr. Indrajit Sinha, to
assist the Court in deciding the legal issues, as mentioned hereinabove
Arguments on behalf of the amicus curiae.
24. The learned counsel appearing as amicus curiae emphatically argues
that unless there is a proceeding by issuance of charge memo, Rule 43(c)
cannot be made applicable suo motu. Learned counsel further argues that
Rule 43(c) of the Jharkhand Pension Rules is newly inserted and came
into existence with effect from the year 2018, cannot be read in isolation,
the same has to be read along with Rule 43(a) and 43 (b) of the said Rule.
Learned counsel draws attention of the Court towards Sections 4 and 6 of
the Gratuity Act and argues that unless the conditions are fulfilled, the
State has no power/ right to withhold the amount. Laying emphasis upon
Section 14, learned counsel argues that the said Section 14 will override
over Section 43(c), though the power is there but the same is not
absolute. It has also been argued that there has to be pecuniary loss and
grave misconduct proved before taking shelter of Rule 43(c) of the
Jharkhand Pension Rules.
25. The learned counsel very emphatically argues that the allegations
levelled against a government servant resulting out of a family dispute
and having no concern with the official discharge of his/her duties is
totally different circumstance and, in these circumstances, withholding of
monthly pension, gratuity, pension etc. is not at all tenable in the eyes of
law, that too without initiating a departmental proceeding. While taking
action against a government servant, the respondents have to consider
RC 14
when action of the concerned has not caused any loss to the Government,
the retiral benefits need not to be withheld. The retiral benefits are
withheld just to compensate the loss caused to the State. Learned counsel
further argues that Rule 43(c) of the Pension Rules cannot be read in
isolation and has to be read alongwith Rule 43(b) of the Pension Rules
which stipulates that the pecuniary loss to the State can only be
recovered. It has emphatically been argued that before passing any
punitive order, the employee has to be noticed and pecuniary loss has to
be ascertained. Reference has been made to the case of Y.K. Singla Vs.
Punjab National Bank and others reported in (2013) 3 SCC 472. Learned
counsel further argued that Article 300A of the Constitution of India
came to the rescue of an employee, as it has been termed to be 'property'.
Article 14 is attracted when the rights are snatched and the same cannot
be ignored. It has further been argued that the civil rights of an employee
is bound to be affected if the right of hearing is not afforded.
Fundamental justification has to be there as per Article 21 of the
Constitution of India. Learned counsel further argued that there cannot be
an enquiry or proceeding but the cardinal principles of natural justice
have to be followed but before passing punitive order, even attracting
Rule 43(c), the same cannot be automatic.
26. During the course of arguments it was argued that Rule 43(c) is an
interim measure and the same cannot be taken in isolation.
27. To buttress their arguments, learned counsels place heavy reliance
upon the Judgment mentioned hereunder:
(i) Deoki Nandan Prasad Vs. State of Bihar reported in (1971) 2
SCC 330 - Para - 29 - The Constitution Bench of the Hon'ble
Apex Court has held that right to receive pension is right to
property;
(ii) D.S. Nakara Vs. Union of India and others reported in (1983) 1
SCC 305 - Gratuity and pension are not bounty in the hands of
government.
(iii) State of Bihar and others Vs. Md. Idris Ansari reported in 1995
Supp (3) SCC 56 - Show cause notice issued under Rule 139(a)
and (b) in respect of a misconduct committed prior to time limit
RC 15
under Rule 43(b) proviso (a)(iii) (4 years prior to date of issuance
of notice is held to be incompetent)
(iv) Dr. Dudh Nath Pandey Vs. State of Jharkhand and others
reported in 2007 (4) JCR 1 - Under Rule 43(a) and Rule 43(b) of
Bihar/ Jharkhand Pension Rules, there is no power to withhold
Gratuity and Pension during pendency of departmental proceeding
or criminal proceeding. It does not give any power to withhold
leave encashment at any stage either prior to proceeding or after
conclusion of proceeding;
(v) State of Jharkhand and others Vs. Jitendra Kumar Srivastava
reported in (2013) 12 SCC 210 - In absence of any rule for
withholding of pension or gratuity, pension and gratuity cannot be
withheld.
(vi) Shanti Devi Vs. State of Jharkhand and others passed in W.P.(S)
No. 3987 of 2021, Judgment dated 16.05. 2024 - Following the
Judgments of the Apex Court in the case of Jitendra Kumar
Srivastava and Full Bench Judgment in the case of Dr. Dudh Nath
Pandey, Court held that attempts of State Government to take away
part of pension or gratuity or even leave encashment without any
statutory provision and under the umbrage of administrative
instruction, cannot be countenanced. State was directed to fix
pension of the petitioner considering 6th and 7th Pay Revision and
also fix the benefits of gratuity, leave encashment and other
benefits.
(vii) The State of Jharkhand through the Secretary, Department of
Finance Vs. Chandra Deo Mahto and another passed in L.P.A.
No. 238 of 2014;
(viii) Y.K. Singla Vs. Punjab National Bank and others reported in
(2013) 3 SCC 472.
Findings of the Court
28. For proper adjudication of the case, this Court deems it fit and
proper to examine Rule 43 of the Jharkhand Pension Rules, which reads
as under:
"Rule 43. (a) Future good conduct is an implied condition of
every grant of pension. The Provincial Government reserve to
RC 16
themselves the right of withholding or withdrawing a pension or
any part of it, if the pensioner is convicted of serious crime or be
guilty of grave misconduct. The decision of the Provincial
Government on any question of withholding or withdrawing the
whole or any part of a pension under this rule shall be final and
conclusive.
(b) The State government further reserve to themselves the
right of withholding or withdrawing a pension or 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 caused to government if the pensioner is found in
departmental or judicial proceeding to have been guilty of grave
misconduct, or to have caused pecuniary loss to government by
misconduct or negligence, during his 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 sanction of the state
government;
(ii) shall be in respect of any 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
(c) The Bihar Public Service Commission, shall be
consulted before final orders are passed.
Explanation - for the purposes of the rule-
(a) Departmental proceedings 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."
(c) Where ay departmental or judicial proceeding is
RC 17
instituted or continued against an officer/employee who has
retired on attaining the age of compulsory retirement or otherwise,
he shall be sanctioned by the Government which instituted such
proceeding, during the period commencing from the date of his
retirement to the date on which, upon conclusion of such
proceeding final orders are passed, a provisional pension not
exceeding the maximum pension which would have been
admissible on the basis of his qualifying service upto the date of
retirement, or if he was under suspension on the date of retirement,
upto the date immediately preceding the date on which he was
placed under suspension, but no gratuity or death-cum-retirement
gratuity shall be paid to him until the conclusion of such
proceedings and the issue of final orders thereon."
29. The Rule 43(c) was inserted by the Jharkhand Pension
(Amendment) Rules, 2018, which came into effect from 23 July, 2018. It
appears that the said Rule was inserted after the Hon'ble Supreme Court
of India made an observation in the case of State of Jharkhand and
others Vs. Jitendra Kumar Srivastava and another reported in (2013) 12
SCC 210 wherein at paragraph-13, it was noted that there was no
provision in the Jharkhand Pension Rules for withholding of
Pension/Gratuity when a departmental proceedings or judicial
proceedings are pending. Paragraph-13 is quoted herein below:
"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."
30. Rule 43(c) of the Jharkhand Pension Rules, on a plain reading can
be invoked when a departmental or a judicial proceeding is instituted by
the Government or continued against an officer/employee who has retired
on attaining the age of compulsory retirement and during the period, such
proceedings are pending, the employee has been held to be entitled to
only provisional pension and the said Rule expressly prohibits payment
of gratuity or death-cum-retirement gratuity till final orders are
issued/passed in the pending proceedings. The main purpose of inserting
Rule 43(c) appears to be to authorize the State Government to withhold
RC 18
the amount of gratuity during pendency of proceedings, be it
departmental or judicial. The use of the following words in Rule 43(c)
"Government which instituted such proceeding" clearly indicates that the
departmental or judicial proceeding must be instituted by the government
in order to attract the provisions of Rule 43(c). The pivotal question,
which thus for consideration is - whether the retired employee's gratuity
will be withheld as a matter of course by the State Government when a
departmental or judicial proceeding initiated by the State Government is
pending or whether the State Government is under an obligation to
initiate a proceeding to determine whether or not a case of withholding
the amount of gratuity is made out." In order to answer the same, it is
necessary to discuss the nature of pension and gratuity.
31. The right to receive pension was recognized as a right to property by
the Constitution Bench Judgment of the Hon'ble Supreme Court in the
case of Deokinandan Prasad Vs. State of Bihar reported in (1971) 2
SCC 330. Likewise, gratuity has also been held to be protected by
Article 300-A of the Constitution of India. In the case of State of
Jharkhand and others Vs. Jitendra Kumar Srivastava and another
(Supra), the Hon'ble Supreme Court of India held that a person cannot be
deprived of pension without the authority of law, which is the
Constitutional mandate enshrined in Article 300-A of the Constitution of
India and the attempt on part of the State Government to take away a part
of pension or gratuity or even leave encashment without any statutory
provision and under the umbrage of administrative instruction, was held
to be untenable.
32. Rule 43(c) of the Jharkhand Pension Rules deals with three different
categories of property viz. Pension, Gratuity and death-cum-retiral
gratuity. Rule 43(a) and (b) set out the grounds for withholding or
withdrawal of pension or any part of it. In terms of Rule 43(a), pension
can be withheld or withdrawn or any part of it if the pensioner is
convicted of a serious crime or is held to be guilty of a grave misconduct.
Likewise, Rule 43(b) empowers the State Government to withhold or
withdraw pension or any part of it, whether permanently or for a
specified period with the right of ordering the recovery from a pension
RC 19
the whole or part of a pecuniary loss caused to the government if the
pensioner is found in departmental or judicial proceeding to have been
guilty of grave misconduct, or to have caused pecuniary loss to the
government by misconduct or negligence, during his service including
service rendered on reemployment after retirement. However, the proviso
to Rule 43(b) carves out the situations when such a course of action
would not be permissible or the applicability of the main provision will
be hedged by conditions. Rule 43(c) on the other hand provides that
during pendency of the departmental or judicial proceeding, the
employee/ officer would be entitled to a provisional pension and further
mandates that no gratuity or death-cum-retirement gratuity shall be paid
until the conclusion of such proceedings and the issue of final orders
thereon. Both Rule 43(a) and 43 (b) of the Jharkhand Pension Rules
mandate that a decision or an order has to be passed by the competent
authority to invoke the said provisions. Rule 43(a) uses the words - "The
decision of the Provincial Government or any question of withholding or
withdrawing the whole or any part of a pension under this rule shall be
final and conclusive". In Rule 43(b) expressly provides that the
government has the right of ordering the recovery from a pension and
further that a proceeding by the department has to be instituted unless the
same is barred in terms of the proviso.
33. The Hon'ble Supreme Court in the case of Secretary, Local Self-
Government Department and others, State of Kerala Vs. K. Chandran
and others reported in (2022) 12 SCC 104, while dealing with similar
provisions in vogue in the State of Kerala, held that the Rules of this
nature (which will apply to sub rules) must be read in conjunction and
cannot be read in isolation (para-38). In the said case, the Hon'ble
Supreme Court was dealing with the situation where the employee was
convicted in a criminal case for violation of integrity norms in
performance of official duties and appeal was pending before the Hon'ble
High Court and during pendency of the appeal, it was contended that the
employee was entitled for release of death-cum-retirement gratuity. After
considering statutory provisions and submissions advanced by the part at
para-29 of the said Judgment, it was held as under:-
RC 20
"29. We must keep in mind the very objectives of holding
back pension or the DCRG. One can recover the amounts found
due from the delinquent employee of any nature whatsoever after
appropriate notice and proceedings. ... ..."
This clearly indicates that an appropriate proceeding has to be
drawn up and sufficient notice has to be given to the employee
concerned.
34. Rule 43(c) of Jharkhand Pension Rules when implemented would
deprive an employee of right to enjoyment of property and such
deprivation, albeit temporarily, must be founded on an order passed after
hearing the employee concerned. The scope of hearing would be limited
in providing an opportunity to the employee to establish that there is no
departmental or judicial proceeding initiated by the Government is
pending, which involves adjudication of charges of a grave misconduct
or a serious crime or involves an issue relating to causing pecuniary loss
to the government by the employee concerned, either by way of
misconduct or negligence.
35. The contrary interpretation that Rule 43(c) would come into play
automatically and, therefore, does not require an order to be passed after
providing reasonable opportunity of hearing to the employee concerned
would render the said Rule violative of Articles 14, 21 and 300A of the
Constitution of India. Rule 43 is invoked qua a person who is dependent
on pension, gratuity or death-cum-retirement gratuity. It can safely be
assumed that the retired employee has no other source of income after
retirement and would be heavily dependent upon the amount of pension
or gratuity received by him as post-retirement benefit. Even the
temporary withholdment of gratuity will have a huge impact on the life
of the retired employee. To say that an employee who has retired will be
deprived of his livelihood without even affording him an opportunity to
defend and in an automatic manner would violate the basic structure of
the Constitution of India. Such an interpretation would offend Articles 14
and 21 of the Constitution of India.
36. The Hon'ble Supreme Court in the case of Union Bank of India
and others Vs. C.G. Ajay and another reported in (2018) 9 SCC 529,
while dealing with an issue under Payment of Gratuity Act relating to
RC 21
forfeiture of Gratuity being automatic on dismissal or not held that the
same was not automatic, but was subject to certain statutory restrictions,
which are embodied in Sections 4(5) and (6). The said principle will
apply with equal force to the provisions of Rule 43(c) for the simple
reason that there are certain conditions to be satisfied before the State
Government can invoke the provisions of Rule 43(c) and thereby
temporarily withhold the payment of Gratuity or DCRG and only pay
provisional pension to the retired employees, which are:
(i) That a departmental or a judicial proceeding instituted by the
government is pending; and
(ii) Such departmental proceeding is founded on the allegations of
grave misconduct or the judicial proceedings relates to a serious
crime or relates to pecuniary loss caused to the government for
misconduct or negligence of the retired employee.
There cannot be two views that Rule 43(c) provides for an interim
measure, the purpose of which is to ensure the availability of the
pensionary amount or gratuity in the event the employee is found to be
guilty of grave misconduct, or a serious crime or having caused
pecuniary loss to the government.
37. Mr. Ashok Yadav, learned Sr.SC-I has tried to impress upon this
Court that Rule 43(c) finds affirmation from the Hon'ble Supreme Court
as the Hon'ble Court has clearly held that after enactment under Rule
309, the State was fully empowered to withhold 10% of the amount of
pension as well as gratuity payable to the employee in terms of Rule
43(c) from the date it came into existence and balance 10% to be released
after outcome of the criminal proceeding. Learned counsel has placed
reliance upon the Judgment rendered in the case of Dr. Hira Lal Vs. State
of Bihar and others reported in (2020) 4 SCC 346.
38. Similar issue fell for consideration before this Court in L.P.A. No.
408 of 2019. The Court was of the view that Rule 43(c) is applicable
prospectively and not retrospectively i.e. the date of retirement of the
employee matters and not the sanction of the pensionary amount for
applicability of Rule 43(c). Admittedly, it is permissible to the
Government to withhold pension only when finding is recorded either in
the departmental enquiry or proceeding that the employee has committed
grave misconduct in discharge of duty while in office. There is no
RC 22
provision in the pension rule for withholding the gratuity when such
departmental or judicial proceedings are pending.
39. Rule 43(c) cannot be read in isolation. The same has to be read
along with Rule 43(a) and 43 (b) of the Jharkhand Pension Rules, which
clarifies that there has to be a proceeding and after that a finding has to
be derived that there is a grave misconduct and loss to the State
exchequer. Merely because a criminal case is pending and automatically
applying the Rule 43(c) is impermissible as per the view expressed by
this Court.
40. The employee is entitled for a show-cause notice before coming to a
conclusion of any amount to be deducted from the gratuity and pension.
In absence of any show-cause notice, the impugned orders are not tenable
and fit to be quashed and set aside.
41. In the case of Y.K. Singla Vs. Punjab National Bank and others
reported in (2013) 3 SCC 472, it has been held at para-22 as under:
"22. In order to determine which of the two provisions (the
Gratuity Act or the 1995 Regulations) would be applicable for
determining the claim of the appellant, it is also essential to refer
to Section 14 of the Gratuity Act, which is being extracted
hereunder:
"14 Act to override other enactments, etc. - The
provisions of this Act or any rule made thereunder shall
have effect notwithstanding anything inconsistent therewith
contained in any enactment othan than this Act or in any
instrument or contract having effect by virtue of any
enactment other than this Act."
A perusal of Section 14 leaves no room for any doubt
that a superior status has been vested in the provisions of the
Gratuity Act vis-à-vis any other enactment (including any other
instrument or contract) inconsistent therewith. Therefore, insofar
as the entitlement of an employee to gratuity is concerned, it is
apparent that in cases where gratuity of any employee is not
regulated under the provisions of the Gratuity Act, the legislature
having vested superiority to the provisions of the Gratuity Act
over all other provisions/ enactments (including any instrument
or contract having the force of law), the provisions of the
Gratuity Act cannot be ignored. The term "instrument" and the
phrase "instrument or contract having the force of law" shall
most definitely be deemed to include the 1995 Regulations, which
regulate the payment of gratuity to the appellant."
42. In the case of Dr. Hira Lal Vs. State of Bihar and others reported in
(2020) 4 SCC 346, it has been held in para-22 as under:
RC 23
22. It is well settled that the right to pension cannot be taken
away by a mere executive fiat or administrative instruction.
Pension and gratuity are not mere bounties, or given out of
generosity by the employer. An employee earns these benefits by
virtue of his long, continuous, faithful and unblemished service.
[State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12
SCC 210 : (2014) 1 SCC (Civ) 315 : (2014) 2 SCC (L&S) 570]
The right to receive pension of a public servant has been held to
be covered under the "right to property" under Article 31(1) of
the Constitution by a Constitution Bench of this Court
in Deokinandan Prasad v. State of Bihar [Deokinandan
Prasad v. State of Bihar, (1971) 2 SCC 330 : 1971 Supp SCR
634] , which ruled that : (Deokinandan Prasad
case [Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 :
1971 Supp SCR 634] , SCC pp. 343-44, paras 30-31 & 33)
"30. The question whether the pension granted to a public
servant is property attracting Article 31(1) came up for
consideration before the Punjab High Court in Bhagwant
Singh v. Union of India [Bhagwant Singh v. Union of India, 1962
SCC OnLine P&H 27 : AIR 1962 P&H 503] . It was held that
such a right constitutes "property" and any interference will be a
breach of Article 31(1) of the Constitution. It was further held
that the State cannot by an executive order curtail or abolish
altogether the right of the public servant to receive pension. This
decision was given by a learned Single Judge. This decision was
taken up in letters patent appeal by the Union of India. Letters
Patent Bench in its decision in Union of India v. Bhagwant
Singh [Union of India v. Bhagwant Singh, 1964 SCC OnLine
P&H 275 : ILR (1965) 2 P&H 1] approved the decision of the
learned Single Judge. The Letters Patent Bench held that the
pension granted to a public servant on his retirement is
"property" within the meaning of Article 31(1) of the
Constitution and he could be deprived of the same only by an
authority of law and that pension does not cease to be property
on the mere denial or cancellation of it. It was further held that
the character of pension as "property" cannot possibly undergo
such mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab
and Haryana High Court in K.R. Erry v. State of Punjab [K.R.
Erry v. State of Punjab, 1966 SCC OnLine P&H 255 : ILR
(1967) 1 P&H 278] . The High Court had to consider the nature
of the right of an officer to get pension. The majority quoted with
approval the principles laid down in the two earlier decisions
[Bhagwant Singh v. Union of India, 1962 SCC OnLine P&H 27 :
AIR 1962 P&H 503] , [Union of India v. Bhagwant Singh, 1964
SCC OnLine P&H 275 : ILR (1965) 2 P&H 1] of the same High
Court, referred to above, and held that the pension is not to be
treated as a bounty payable on the sweet will and pleasure of the
Government and that the right to superannuation pension
including its amount is a valuable right vesting in a government
servant. It was further held by the majority that even though an
RC 24
opportunity had already been afforded to the officer on an earlier
occasion for showing cause against the imposition of penalty for
lapse or misconduct on his part and he has been found guilty,
nevertheless, when a cut is sought to be imposed in the quantum
of pension payable to an officer on the basis of misconduct
already proved against him, a further opportunity to show cause
in that regard must be given to the officer. This view regarding
the giving of further opportunity was expressed by the learned
Judges on the basis of the relevant Punjab Civil Service Rules.
But the learned Chief Justice in his dissenting judgment was not
prepared to agree with the majority that under such
circumstances a further opportunity should be given to an officer
when a reduction in the amount of pension payable is made by
the State. It is not necessary for us in the case on hand to
consider the question whether before taking action by way of
reducing or denying the pension on the basis of disciplinary
action already taken, a further notice to show cause should be
given to an officer. That question does not arise for consideration
before us. Nor are we concerned with the further question
regarding the procedure, if any, to be adopted by the authorities
before reducing or withholding the pension for the first time after
the retirement of an officer. Hence, we express no opinion
regarding the views expressed by the majority and the minority
Judges in the above Punjab High Court decision on this
aspect. But we agree with the view of the majority when it has
approved its earlier decision that pension is not a bounty payable
on the sweet will and pleasure of the Government and that, on
the other hand, the right to pension is a valuable right vesting in
a government servant.
***
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 clause (5) of Article 19. Therefore, it follows that the order,
dated 12-6-1968, 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.”
43. In the case of State of Jharkhand and others Vs. Laljit Prasad
Sinha reported in 2020 SCC OnLine Jhar 1624, it has been held in para-
15 as under:-
“15. After his retirement on 30.11.2016, the authorities had
sanctioned for payment of 90% pension, the amount of
Group Insurance and part of G.P.F. but the rest amount of
Gratuity, balance 10 % pension, balance leave encashment
and G.P.F. have not been paid to the writ petitioner,
RC 25
therefore, he approached to this Court by invoking writ
jurisdiction of this Court under Article 226 of the
Constitution of India by raising the issue that the
respondents-authorities by withholding the aforesaid retiral
dues on the pretext of criminal case is not at all justified as
because he has already superannuated w.e.f. 30.11.2016
and prior to the date of retirement, he has been punished
with the punishment of withholding one increment with non-
cumulative effect and censure vide order dated 30.09.2016.
But, merely on account of the fact that one criminal case is
pending the retiral dues cannot be withheld. Further
ground was agitated that the pensionary benefit can only be
withheld by resorting to Rule 43(b) and 139 of the
Jharkhand Pension Rules.”
44. Before coming to the conclusion, it would be proper to quote
provisions of Sections 4 (6) of the Gratuity Act, which reads as under:
“4 (6) Notwithstanding anything contained in sub-section
(1), – (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 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.”
45. Admittedly in the aforesaid cases, no proceeding was initiated,
neither Pension Rules were adhered to and only because of the conviction
or other punishments, Rule 43(c) has been made applicable and amount
of gratuity and pension has been withheld, which is impermissible in the
eyes of law.
46. In the aforesaid paragraphs, it has been clearly dealt with that Rule
43(c) is enactment under the provisions of Article 309 of the Constitution
of India and there is no quarrel to the legal proposition that the same is
applicable from the date it came into existence i.e. 2018, prior to that the
same cannot be made applicable. This law has been set at rest and no
more res integra right from the Judgment rendered in the case of State of
Jharkhand and others Vs. Laljit Prasad Sinha (Supra) and to that of
Judgment rendered in the case of Dr. Hira Lal Vs. State of Bihar and
RC 26
others (Supra). Never it was brought to the notice of the Court whether
the Gratuity Act, Section 4, 6, 7 and 14 are applicable while deduction or
withholding the amount of gratuity. The Hon’ble Apex Court has
clarified the same in the case of Y.K. Singla Vs. Punjab National Bank
and others (Supra). The manner in which Rule 43(c) has to be made
applicable, that has been dealt with in the aforesaid paragraphs.
47. From perusal of the aforesaid Rules, it can comfortably be inferred
that before invoking provisions of Rule 43(c), it has to be ascertained that
the employee has been found guilty of grave misconduct or serious crime
or having caused pecuniary loss to the government. The provisions of
Rule 43(c) of the Jharkhand Pension Rules is not invocable automatically
and Rule 43(c) of the Jharkhand Pension Rules must be interpreted and
read in a manner so as to provide for initiating a proceeding thereunder in
order to comply with the principles of natural justice before an employee
is deprived of his pensionary benefits.
48. Before coming to the conclusion, it would be apposite to quote
Article 13 of the Constitution of India, which reads as under:
“Article 13 of the Constitution of India:
(1) All laws in force in the territory of India immediately before
the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of
such inconsistency, be void.
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise requires,– (a)
“law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law; (b) “laws in force” includes laws passed or made
by a Legislature or other competent authority in the territory of
India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any
part thereof may not be then in operation either at all or in
particular areas.
(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.”
Thus, from bare reading of Article 13(2) of the Constitution of
India, it is clear that the State cannot make laws that:
(i) Take away or abridge the rights conferred by Part III of the
Constitution;
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(ii) Contravene this clause
Meaning thereby, the Constitution of India safeguards the citizens of
India and the State must adhere to the cardinal principles of natural
justice before enacting any law. No law can be made in which
fundamental rights of the citizens is abridged.
49. Of late, in the safeguard of Article 13 of the Constitution of India, the
Hon’ble Supreme Court in the case of Lombardi Engg. Ltd. v. Uttarakhand
Jal Vidyut Nigam Ltd., (2024) 4 SCC 341 : 2023 SCC OnLine SC 1422 held
that any law which is in violation of its provisions is unlawful and the same is
liable to be struck down. The significant paragraphs are quoted herein below:-
“78. Our Constitution is the paramount source of law in our
country. All other laws assume validity because they are in
conformity with the Constitution. The Constitution itself contains
provisions that clearly provide that any law which is in violation
of its provisions is unlawful and is liable to be struck down. As
contained in Article 13, which provides that all laws which were
made either before the commencement of the Constitution, or are
made after it, by any competent authority, which are inconsistent
with the fundamental rights enshrined in the Constitution, are, to
the extent of inconsistency, void. This again unveils the principle
of Grundnorm which says there has to be a basic rule. The
Constitution is the basic and the ultimate source of law.
79. In the aforesaid context, we must look into view decisions
of the High Courts explaining the theory of Grundnorm.
79.1. In H.S. Kulshrestha v. Union of India [H.S.
Kulshrestha v. Union of India, 1999 SCC OnLine All 270] , the
Court held that : (SCC OnLine All para 6)
“6. … According to the theory of the eminent jurist Kelson, in
every country there is a hierarchy of laws, and the highest law is
known as the grundnorm of law. In our country the grundnorm is
the Constitution.”
49. As a sequitur to the aforesaid guidelines, judicial pronouncements
and facts and circumstances of the case, the impugned orders in
respective writ petitions, as mentioned in paragraphs-3 to 6
hereinabove, are hereby quashed and set aside. The petitioners are
entitled for entire pensionary benefits including the amount of gratuity. If
any amount has been deducted or forfeited, the same has to be refunded
to the petitioners. However, liberty is reserved with the respondents to
proceed in accordance with law taking into consideration the aforesaid
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observations made by this Court before invoking Rule 43(c) of the
Jharkhand Pension Rules.
50. With the aforesaid observations and directions, all these writ
petitions stand disposed of.
51. Before parting with this judgment, this Court must record the
benevolent assistance given by Mr. Anoop Kumar Mehta, Mr. Manoj
Tandon, Mr. Krishna Murari, Mr. Sumeet Gadodia, Mr. Indrajit Sinha and
Mr. Saurabh Shekhar, learned Amicus Curiae, as also learned counsel
appearing for the parties, who have acted within the bounds of their
authority and fulfilled their responsibilities commendably. This Court
acknowledges their efforts which have greatly assisted in the fair and just
determination of the matter of applicability / invocation of Rule 43(c) of
the Jharkhand Pension Rules.
(Dr. S.N. Pathak, J.)
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