Judgement of the day - Dr. Hira lal v. State of Bihar Appeal(Civil), 1667-1668 of 2020

Brief facts:

In present case, Dr. Hira Lal (an appellant) was appointed to the post of Touring Veterinary

officer (TVO) at Pawana, by State of Bihar (the respondent) in present case. During active

service of the appellant, he was made an accused in the Fodder Scam lodge by the CBI in RC case No.48A/1996 in which charge-sheet was filed against him on 21.11.2003.


The cognizance of the offence was taken by Special Judge, CBI, Animal Husbandry. Under –

Rule 49(a) of the Civil Services (Classification, Control & Appeal) Rules, 1930, which was

in force prior to the enforcement of the Bihar Government Servant (Classification, Control

& Appeal) Rules, 2005, the appellant was placed on suspension on 31.05.2002 till

31.03.2008, on which appellant attained age of superannuation.


On attaining the age of superannuation, the state government by its order dated 17.09.2008

sanctioned payment of 90% of the provisional pension of the appellant and withheld 10% of

the pension, entire gratuity, leave encashment and GPF on account of pending criminal

proceedings.


Aggrieved by this action of the State Government, the appellant filed writ petition in the High

Court Of Patna praying for writ of mandamus for directing the Respondent to pay full pension, gratuity, leave encashment, and General Provident Fund along with interest, where single judge of the High Court dismissed writ petition on 23.01.2013 holding that the claim of full pension and gratuity until conclusion of the criminal proceedings was untenable. Since the order of suspension was not revoked till the age of superannuation, the criminal proceedings would be deemed to be continuing during this entire period as per Rule 43(b) of the Bihar Pension Rules.


Aggrieved by order of High Court, the appellant preferred LPA, which was dismissed by

division bench of the high court on 21.03.2017. Further, the review petition was filed by the

appellant which was dismissed by the high court. Being aggrieved by the decision of division

bench, the appellant has filed Special leave petition in the Supreme Court.


Judgment:

After considering relevant statutory provisions, the court opined,

“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

un-blemished service.”


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, which was followed in D.S. Nakara. v. Union of

India.


The court held that gratuity could not be withheld under administrative circulars and the

Respondent was unjustified in withholding 10% pension of the Appellant and directed that

such amount should be paid to the appellant within a period of 12 weeks. After inserting rule

43(c) in the Bihar Pension Rules , the State is empowered to legally withhold 10% of the

pension amount of the Appellant, subject to the decision of the criminal proceedings in R.C.

Case No. 48A/1996.

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