IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13766 of 2007 Narayan Mishra S/o Shri Krishna Chandra Mishra R/o- 36, Ved Nagar, Rukanpura, PS- Danapur, District- Patna, PIN-800014--- ---------------------------------------------------------Petitioner Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna 2. The Principal Secretary, Home (Police) Department, Govt. of Bihar, Patna 3. The Joint Secretary ( Police), Ministry of Home Affairs, Govt. of India, New Delhi 4. The Accountant General, Bihar, Veer Chand Patel Path, Patna-- --------------------------------------------------------Respondents ---------------------------------- For the Petitioner: Mr. Narayan Mishra, Advocate For the Respondents: Ashok Kumar Keshari, AAG-XI For the Union of India: Mr. P.L. Jaiswal (C.G.C) For the Accountant General: Mr. Raj Nandan Prasad, Advocate ------------------------- 7 1.12.2011 Heard the petitioner in person and Mr. Ashok Kumar Keshari, learned A.A.G-XI for the State. Petitioner served the State Government as Director General of Police. While still in service an F.I.R. bearing no. 01/2007 (Special Vigilance Unit) (in short SVU) was lodged on 6.2.2007 against him under diverse sections of Prevention of Corruption Act 1988 (Annexure C to the supplementary counter affidavit). On conclusion of investigation the chargesheet was submitted (Annexure- D to the supplementary counter affidavit). By yet another order dated 9.2.2007 (Annexure-3) he was placed under suspension. By order dated 29.6.2007 (Annexure-8) he was released from suspension. In the afternoon of 30.6.2007 the petitioner superannuated from service. The grievance of the petitioner is that the respondents have sanctioned only provisional pension (90%) and have withheld the gratuity amount of the petitioner payable upon superannuation. Petitioner has also raised grievance that between the period 9.2.2007 2 to 29.6.2007 (48 days) he is required to be treated on duty and paid salary for the said period. It is also his contention that once he has been released from suspension with effect from 29.6.2007 he is entitled to be paid salary for 30.6.2007 when definitely he was in service which was the last working day of the petitioner in service. It is contended by the petitioner that in view of the provisions contained in All India Services (Death-cum-Retirement Benefits) Rules 1958 the respondents could not have withheld payment of pension and gratuity. It is further submitted that the rule contemplates a rider of four years in the matter of initiation of such department and/or judicial proceeding. Admittedly the chargesheet in the present case pursuant to conclusion of criminal investigation was not filed while the petitioner was in service. It is also argued that charges in the departmental proceeding was not framed while he was in service. The submission of the petitioner is that the respondents have failed to take appropriate action within the time stipulated under the relevant rules and as such they can not withhold payment of full pensionary benefits. It is next argued that he has not been held guilty either in the departmental and/or judicial proceeding initiated against him. He is, therefore, entitled to his full post retiral dues. Learned counsel for the respondents contends that from the material on record it would be quite manifest that FIR (Annexure C to the supplementary counter affidavit) was lodged on 6.2.2007 when the petitioner was still in service. By another order dated 9.2.2007 (Annexure-3) he was placed under suspension. In the wake of his attaining age of superannuation the respondents by order dated 3 29.6.2007 (Annexure-8) released him from suspension. It is contended that it would be deemed in law that the departmental proceeding was initiated when the petitioner was placed under suspension by order dated 29.2.2007 (Annexure-3). Mr. Keshri learned counsel for the State further contended that Explanation contained in Rule 6 of the Rules is mutatis mutandis to Rule 43(b) of Bihar Pension Rules. There is no controversy that if any departmental or judicial proceeding has been initiated as per the rules the appropriate authority would be vested with the power of withholding pension until conclusion thereof. The question to be considered is whether departmental or judicial proceeding was initiated against the petitioner in accordance with the provisions contained in rules. Learned counsel for the respondents highlighted that the F.I.R. has been lodged making allegation against the petitioner that he had amassed assets disproportionate to the known source of income during the last 20 years of his service. According to petitioner the rider contained in Rule-6 would be applicable as no proceeding either judicial or departmental could have been initiated in respect of events taking place more than four years prior to initiation thereof. On the other hand the respondent has contended that in view of the ratio laid down in 2011 (2) PLJR 844 ( Ishwar Chandra Jha vs. The State of Bihar & others ), 2007 (3) PLJR 321 ( Dr. A. A. Mallick & Anr. vs. State of Bihar & others) and 2006 (2) PLJR 11 (Tripurari Sharan Singh vs. The State of Bihar & others ) it will be deemed in law that the departmental proceeding was initiated on the day on which order dated 9.2.2007 (Annexure-3) putting the petitioner 4 under suspension preceded by lodging of FIR was passed. In Ishwar Chandra Jha (supra) this Court while dealing with the provisions contained in Rule 43(b) of Bihar Pension Rules has held in para-10 thereof as follows: “Para 10: For this proposition, I would like to rely on the judgment of this Court in the case of Tirpurari Sharan Singh vs. The State of Bihar & others (2006 (2) PLJR 11). This Court has considered the argument raised on behalf of the petitioner and held that there cannot be any bar or limitation to the departmental proceeding, if the Government servant had been placed under suspension from an earlier date to his retirement. The language of Rule 43(b) is quite clear on this aspect of the matter. The provisions of Rule 43(b)(ii) state that the departmental proceeding shall be deemed to be instituted when the charges are framed or issued to the incumbent with a rider, that if the Government servant has been placed under suspension from an earlier date, the departmental proceeding would be counted to have been initiated from the date on which the person has been put under suspension.” Learned counsel for the respondent is right in his submissions that the facts of the aforesaid case are akin to the facts of the present case. In Tripurari Sharan Singh (supra) this Court negated the submission of the petitioner in the following manner in para 10 which reads thus: Para-10: “It is not possible to agree with the petitioner’s submission that the departmental proceeding was hit by the bar of limitation engrafted in rule 43(b). The Explanation (a) to 43(b) provides that “departmental proceeding shall be deemed to have been instituted when the charges framed against the petitioner are issued to him or, if the government servant has been placed under suspension from an earlier date, on such date” (Emphasis added). The petitioner had been placed under suspension on 19.1.98 which will, therefore, be deemed to be the date of commencement of departmental proceeding in the present case.” 5 In Dr. A.A. Mallick (supra) this Court while dealing with an identical situation in para-8 thereof held as under: Para:8 “ A reference would show that if a Government servant has been put under suspension prior to superannuation then in terms of rule 43(b), it would be deemed that departmental proceeding had been initiated. It is for this reason, this court as pointed out above observed that stating the fact that the petitioner had been suspended prior to superannuation was a material fact to be stated. The writ petition ought to have been dismissed for suppression of this material fact. However, as this fact has been brought on record by the counter affidavit and not having denied by the petitioner in reply, considering the aforesaid fact, it would be seen that the petitioner having been put under suspension prior to his superannuation, there is no necessity of sanction of Government or the application of clause (a) (ii) of the proviso to rule 43(b) prior to superannuation.” On a conspectus of the ratio laid down in the aforesaid cases it is evident that this Court has consistently taken a view that in case where the employee, while in service, was placed under suspension then in view of the Explanation contained in the rule it would be deemed in law that the departmental proceeding has been initiated with effect from the said date. On the day on which the employee superannuated the order of suspension was already revoked was held irrelevant as the employee could not have been continued under suspension after superannuation since the relationship of master and servant stands severed on the day the employee superannuates from service. In the case at hand, the order of suspension preceded by lodgment of F.I.R. was passed on 9.2.2007. There is no controversy that on the said date the petitioner was in the service of the respondent. 6 Taking into consideration the aforesaid facts and the ratio laid down in the cases referred to above I am of the view that the contention of the petitioner is fit to be rejected. The petitioner has next contended that in view of the provision contained in Rule-6 of the Rules consultation with the Union Public Service Commission (for short ‘the Commission’) would be necessary. Admittedly the Commission was not consulted and as such the stand of the respondents in holding part of the post retrial benefit is contrary to the rule. On going through the provisions contained in Rule 6 of the Rules, in my view, the stage has not reached when the respondents are required to consult the Commission. It would be the stage when the respondents finally take a decision of withholding pension or gratuity or both, either in full or in part, whether permanently or for a specified period. It is not the case of the petitioner that the respondents have finally taken a decision in this regard. Obviously the stage has not reached. The submission of the petitioner, in my view, is not sustainable in law. Petitioner has also prayed for a direction for releasing his full salary for the period of suspension with effect from 9.2.2007 to 29.6.2007 (48 days). Obviously the decision in respect of the said period shall be taken upon conclusion of the pending proceeding(s). The said relief, therefore, cannot be granted to him. The petitioner in sub-para (C) of para 3 of the Interlocutory Application has also prayed for payment of full salary for one day i.e. 30.6.2007. From the materials on record it appears that 7 the authority by reason of order contained in Annexure-8 released him from suspension with effect from 29.6.2007. Obviously the petitioner would be entitled to full salary for the following date (i.e. last day of his service) when he discharged the duty. The respondents are, thus, directed to pay him the salary of last day of his office within eight weeks from the date of receipt/production of a copy of this order. In sub-para (f) of para-3 he has also prayed for a direction to pay full amount of Group Insurance payable to him under Group Insurance Scheme. Respondents have not pleaded or brought on record anything to show that in case like this payment of Insurance amount under the said scheme can be withheld. The petitioner would, thus, be entitled to payment of aforesaid amount under the Group Insurance Scheme in full, if not already paid till date. This Court deems it expedient to direct the respondents to pay full amount under the Group Insurance Scheme to the petitioner, if not already paid, within the same period of eight weeks. In the result, barring the aforesaid relief (s) granted to the petitioner, other reliefs prayed for by the petitioner in the present writ petition as well as in Interlocutory Application No. 4215 of 2011 are declined. The writ petition and I. A. No. 4215 of2011 stand disposed of. RPS (Kishore K. Mandal, J.)