Vijay Kumar Chaurasia vs The State of Bihar and Others

Hemant Kumar Srivastava, J.—Heard learned counsel for the petitioner, learned counsel for the Accountant General, Bihar as well as learned counsel appearing for the State. Petitioner was Excise Inspector and joined his service in the year 1983. He superannuated from his service on 30.11.2012 but before his superannuation, he was made an accused in Vigilance P.S. Case No. 122 of 2007 and he was sent to jail. Subsequently, he was released on bail. The State initiated departmental proceeding against the petitioner on the same charges which had been framed against him in Vigilance P.S. Case No. 122 of 2007. The Inquiring Officer submitted its report in departmental proceeding on 29.11.2012 finding the accusation not proved against the petitioner. Just next day of submission of inquiry report, the petitioner was superannuated from service i.e. on 30.11.2012. After superannuation petitioner applied for his retiral benefits, but nothing was paid to him. Accordingly, he came before this Court. During pendency of this matter, G.P.F. and Group Insurance were paid to the petitioner and similarly, 90% of pension was also sanctioned, but leave encashment, gratuity and 10% of pension of the petitioner were withheld on the ground of pendency of departmental proceeding as well as criminal prosecution.

Learned counsel appearing for the petitioner submits that the State has got no right to withheld leave encashment, gratuity and 10% of pension of the petitioner on the ground of pendency of departmental proceeding as well as criminal prosecution because the aforesaid issue has already been settled by the Apex Court in the case of State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another, , in which it has been held by the Apex Court that attempt of the appellant 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 cannot be countenanced as the executive instructions are not having statutory character and therefore cannot be termed as law within the meaning of Article 300-A of the Constitution of India.

In the counter affidavit filed on behalf of the State, it has been pleaded mentioned that the leave encashment, gratuity and 10% of pension of the petitioner has been withheld keeping in mind the circular issued by Finance Department, but admittedly, according to Section 43(b) of Bihar Pension Rules, the State Government can only withheld pension, if in the departmental proceeding, or in the judicial proceeding the employee is found guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service period. There is no provision in the above stated rules that the State Government has right to withheld pension or other retiral benefits on the ground of pendency of departmental proceedings or judicial proceeding. So far as the circular of the State Government is concerned, no circular can be issued contrary to the Rules as well as Acts and the circular can only be issued to reckon and fill up the gaps of Rules as well as Acts. Moreover, the aforesaid issue has already been decided by the Apex Court in the above stated case of State of Jharkhand vs. Jitendra Kumar Srivastava (supra). Accordingly, this petition stands allowed and the respondent No. 2/concerned respondents are directed to sanction 10% remaining pension, leave encashment as well as gratuity to the petitioner within three months from the date of receipt/production of a copy of this order and after the above stated sanction the respondent No. 6 shall ensure issuance of authority Slip/PPO within a month from the date of receipt of sanction order. However, it is made clear that the State Government may take legal steps against the petitioner in accordance with Rules, if the petitioner is found guilty in departmental proceeding or in judicial proceeding.