Radha Mohan Pd., J.
1. In this writ application, the petitioner, who retired as Chief Engineer while posted at the headquarters of the Bihar State Electricity Board, Patna (hereinafter referred to as the Boards) on 31-3-1997, is aggrieved on account of non-release of his 10% pension, gratuity and leave encashment. He was, however, paid 90% of pension and the amount of GPF.
2. In short, the relevant facts of the case are that the petitioner was initially appointed as Assistant Electrical Engineer in the service of the Board on 1-4-1960 and later promoted to the post of Electrical Executive Engineer on 1-7-1968 and thereafter, to the post of Electrical Superintending Engineer on 20-8-1982 and ultimately he superannuated on 31-3-1997 while holding the post of Chief Engineer.
3. While the petitioner was posted as General Manager-cum-Chief Engineer, Barauni Thermal Power Station, Barauni (Muzaffarpur Thermal Power Station Kanti, Muzaffarpur), he was prima facie found guilty of gross misconduct/irregularities in the matter of purchase of plain water in the name of Chemical Additive from Jitan v. Company, New Delhi, and a departmental proceeding was initiated against him, vide Board's Resolution No. 761 dated 25-4-1996, contained in Annexure 1. The petitioner was asked to submit his show cause within a fortnigh of the issue of the said resolution to Sri G.N. Rai Yadav, Member (Tech.) of the Board, who was appointed as enquiry officer and was requested to submit his findings along with the relevant case records to the Board within three months. The petitioner was placed under suspension with immediate effect, vide Board's Office Order No. 3740 dated 2-8-1996, contained in Annexure 2, without prejudice to the departmental proceeding already drawn up against him. During the period of suspection he was allowed to draw only the subsistence allowance. The petitioner was also made an accused in Vigilance Case No. 11/96 in connection with the aforesaid charge under Sections 468, 420, 201, 409 and 120B of the IPC as also under Sections 13(i) and 13(ii) of the Prevention of Corruption Act, 1988.
4. According to the petitioner, the charge in question relates to the period in between the dates 4-12-1991 to 17-3-1992 while the petitioner was posted at Barauni Thermal Power Station. The petitioner submitted his written statement of defence before the enquiry officer, but the departmental enquiry has not been concluded uptill now. The petitioner superannuated on 31-3-1997 while posted as Chief Engineer. Thereafter, the petitioner, vide Board's letter, bearing Memo No. 484 dated 9-4-1997, was communicated that he was released from suspension with effect from 31-3-1997, the day he superannuated, without prejudice to the departmental proceeding drawn up against him and what the decision as to how the period of suspension is to be treated would be taken after submission of finding by the enquiry officer and result of the criminal case.
5. According to the case of the petitioner, in exercise of the power contained in Section 79C of the Indian Electricity (Supply) Act, 1948, the Board framed 1976 Regulation to have Common Service Rules for all of its employees. Regulation 2 (xxii) defines 'gratuity' and it means the lumpsum amount payable as one of the terminal benefits to employees retiring from the service of the Board on the basis of the length of qualifying service. It is stated that Regulation 77 stipulates that gratuity shall be paid to the employee in accordance with any Statute or separate Rules/ Regulations governing payment of pension and gratuity framed by the Board provided that the gratuity shall be payable after an employee has rendered five years of satisfactory service whether in permanent temporary or work charge establishment subject to the maximum fixed under the Rules/Regulations, referred to above, except when an employee has been dismissed from service after departmental proceedings or removed from service on the ground of moral turpitude.
6. Further, the case of the petitioner is that the so-called proceeding initiated prior to retirement lapsed as he was never communicated before his superannuation with respect to its conversion into a proceeding under Rule 43 (b) of the Bihar Pension Rules. According to the petitioner, as the charge levelled against him relates to the period between 4-12-1991 to 17-3-1992 and the resolution initiating proceeding was Issued vide memo No. 762 dated 24-2-1996 along with memo of charge after lapse of four years of the date of event and the suspension order was also issued thereafter on 2-8-1996 it is not open to the respondents to proceed with such departmental proceeding even in terms of Rule 43(b) of the Bihar Pension Rules in view of bar provided in Sub-clause (b) read with Sub-clause (ii) of Clause (a) of proviso to Rule 43 (b) of the Bihar Pension Rules.
7. A counter-affidavit has been filed on behalf of the respondent-Board and its officials in which it is stated that since the departmental proceeding as well as the Criminal case instituted by the Vigilance against the petitioner was pending, 90% provisional pension was sanctioned o the petitioner, vide Board's letter No. 601 dated 12-5-1997. According to the said respondents, the post retirement benefits admissible to the petitioner during the pendency of the departmental proceeding as well as the Criminal proceeding have already been paid to him. It is stated that the gratuity of the petitioner was withheld in terms of the provisions contained in F.D. Memo No. PC-11-40-28/74/9144 F dated 22-8-1974. It is further stated that as per the provisions of the Bihar Pension Rules read with various circulars, during pendency of the departmental proceeding or judicial proceeding, 90% provisional pension is to be paid and till conclusion of the said proceedings, the remaining 10% of pension and gratuity cannot be paid. It is stated that the Board has found a prima facie case established and accordingly accorded sanction of prosecution against the petitioner in Vigilance P.S. Case No. 11/96 and that the departmental proceeding drawn against him is also going on and, further, that till the petitioner is exonerated in the departmental proceeding or criminal proceeding, he cannot claim himself to be innocent.
8. According to the respondents, there is no requirement of converting the departmental proceeding pending before retirement into a proceeding under Rule 43 (b) of the Bihar Pension Rules after superannuation and, in fact, the departmental proceeding drawn before retirement automatically converts into a proceeding under Rule 43 (b) after superannuation, as has been held by a Full Bench of this Court in the case of Shambhu Sharan v. State of Bihar, reported in 2000 (1) PLJR 665. Accordingly, it is stated that since the departmental proceeding was initiated before the superannuation of the petitioner, the bar of four year in terms of Rule 43 (b) of the Bihar Pension Rules is of no help, As regards withholding of leave encashment, it is stated that it has been withheld in terms of the Board's Standing Order No. 1/Pension, EEE-4244/98-784 dated 21-8-1997, a copy whereof has been annexed as Annexure A. However, nothing has been mentioned with regard to 1976 Regulations, referred to above.
9. Learned Counsel for the petitioner contended that Rule 43(b) of the Bihar Pension Rules, 1950 has got no application on the face of specific rule as provided in Regulations 76 and 77 of 1976 Regulation. Further, it is contended that in any view of the matter, the respondents cannot proceed with the so-called departmental proceeding even under Rule 43(b) as in the absence of specific order under Rule 43(b) the proceeding initiated, vide Memo No. 762 dated 25-4-1996, lapsed on the retirement of the petitioner on 31-3-1997 and also became barred as the charge relates to the period beyond four years i.e. 4-12-1991 to 17-3-1992, Similarly, on action can be taken on account of pendency of vigilance case in view of the bar provided in Sub-clause (b) read with Sub-clause (ii) of Clause (a) of proviso to Rule 43 (b) of the said Rules. Learned Counsel for the petitioner also contended that in any view of the matter, the Government Circulars dated 22-8-1974 and 31-7-1980 cannot be invoked in the case of Board's employees on the face of Regulation 77 more so in the absence of any decision of the Board to apply such Government decision in the case of employees of the Board mutatis mutandis.
10. Learned Counsel for the petitioner further contended that withholding of leave encahsment in terms of Board's Standing Order dated 21-8-1997 (Annexure A) is also bad as the said standing order came into force with immediate effect i.e. with effect from 21-8-1997, by which time the petitioner had already superannuated from service on 31-3-1997 and the right to receive leave encahsment on superannuation already accrued as per the rule then in existence, i.e. prior to the Board's Standing Order (Annexure A) came into force on 21-8-1997. It is further contended that it is true that as per the Board's Standing Order dated 21-8-1997 all undecided cases are also covered by the said decision but the said provision besides being self-contradictory is discriminatory inasmuch as the benefit of leave encahsment has been paid to all other similarly situated employees even during the pendency of the proceeding/case prior to the said Board's standing order whereas right to receive leave encahsment already accrued on the date of superannuation is being sought to be taken away by its retrospective application to pending cases which in the present case remained undecided not on account of any fault of the petitioner. Apart from this, he submitted that in view of the principle decided by the Division Bench in the case of Bajrang Deo Narain Sinha v. State of Bihar, reported in 1999 (3) PLJR 949, it is only in the case of proved misconduct that a part or whole of the pension can be withheld and the pensionary dues payable to the petitioner, including, which is also pension within the meaning of the Bihar Pension Rules, cannot be withheld till such time as an order has been passed under Rule 43 (b) of the Bihar Pension Rules. The Division Bench has further held that similarly the leave encashment dues also cannot be withheld since that is paid in lieu of untilised leave and, therefore, partakes the character of salary.
11. Mr. Jha, learned Counsel appearing for the respondent-Board submitted that the principle decided by the Division Bench in the case of Bajrang Deo Narain Sinha v. State of Bihar (supra) has been distinguished and, in fact, overruled by the Division Bench judgment in the case of State of Bihar v. Ganga Bishun Mahto, reported in 2001 (4) PLJR 435. He further submitted that the validity of the Board's Standing Order (Annexure A) came up for consideration in the case of Birendra Kumar Verma v. Bihar State Electricity Board, 1996 (2) PLJR 702, and in the said case the Hon'ble Single Judge has upheld its validity.
12. I am unable to accept the submission of the learned Counsel for the respondent-Board, It is well settled that terminal and pensionary benefits are the conditions of service and they are governed by the Service Rules. The pension is neither a charity nor bounty nor dependent upon the sweet-will of the employer. On the other hand, it is a deferred portion of compensation payable to the employees for his past service. The apex Court in the case of Deokinandan Prasad v. State of Bihar and Ors., reported in AIR 1971 SC 1409, held that right to receive pension is property under Article 31(1) of the Constitution and by mere executive order, State has no power to withhold the same. It is vested right in the Government servant and does not depends upon an order being passed by the authority to that effect. Right to pension flows to an employee not because of an order of payment is passed, but by virtue of rule governing grant of pension. Thus, in my opinion, the respondent-Board by applying an executive order retrospectively cannot deny the payment of leave encashment, which is one of the terminal/pensionary benefits under the Rules as it exerted at the time of superannuation. Moreover, in view of the Division Bench decision of this Court in the case of Bajrang Deo Narain Sinha (supra), this Court finds it difficult to sustain the validity of the standing order (Annexure A) itself and all the more in so far as it has the retrospective effect as it leads to discriminatory inasmuch as several persons, according to the rules then existed, availed the benefits of communication of pension and leave encashment despite pendency of the case prior to 21-8-1997 whereas in the case of the petitioner, who is similarly situated, the said benefits are sought to be denied by the retrospective application of the standing order only because it remained undecided not an account of any fault on the part of the petitioner. Similarly, in my opinion, the respondent-Board by applying the aforementioned executive order of the State Government cannot deny the payment of any amount of pension/gratuity, which is one of the terminal/gratuity, which is one of the terminal/pensionary benefits under the Regulations/Rules as it existed at the time of superannuation.
13. Further, I am unable to accept the submission of the learned Counsel for the Board that the validity of the Board's Standing Order (Annexure A) was considered in the case of Birendra Kumar Verma case (supra). The validity of the Standing Order (Annexure A) was not raised in the case of Birendra Kumar Verma v. Bihar State Electricity Board (supra). In the said case, the Court, merely after noticing the stand of the Board which relied upon the provisions contained in Board's Finance and Accounts Code, Rule 43 (b) of the Bihar Pension Rules, and Memo No. 2150 dated 19-7-1984, which according to the case of the Board, was also applicable to the employees of the Board, held that is justified in withholding encashment of earned leave subject to the decision of the disciplinary proceeding as the petitioner did not controvert the said stand taken in the counter-affidavit by filing any rejoinder-affidavit. In fact, in the present case, no such memo dated 19-7-1984 nor regarding its applicability to the employees of the Board has been brought to my notice by the learned Counsel for the Board. This Court finds it difficult to accept the stand of the respondent-Board that in view of the aforementioned Memo dated 22-8-1974 and clarified by Liberalised Pension Rules dated 31-7-1980, the Board can withhold 10% of pension and full gratuity till the conclusion of the so-called departmental proceeding/ case. The aforementioned memo dated 22-8-1976 is of the State Government and according to it, during the pendency of the departmental or judicial proceeding instituted under Rule 43 (b) of the Bihar Pension Rules, the pensioner is to be paid only 75% of his pension as provisional pension and no gratuity is to be paid until the conclusion of the said proceeding and the issue of final order thereon. This was clarified by Liberalised Pension Rules vide Government Resolution No. 3014 dated 31-7-1980 whereby in paragraph 7 (c) while reiterating the same provision, the limit of provisional pension was enhanced from 75% to 90%.
14. Learned Counsel for the Board has contended that in the absence of specific provision framed by the Board, the rules and circulars applicable to Government servants are applicable in the case of Board's employees. In support of this, he relied upon Board's Resolution No. 5031 dated 6th September, 1966, a photocopy whereof has been produced by him. I fall to appreciate as to how the said Board's resolution is of any help to the learned Counsel for the Board. The said resolution only relation to the grant of benefits with effect from 1-4-1958 to the staff other than those who are on deputation from Government and in respect of whom pensionary contribution is paid by the Board. It provides that permanent gazetted officers and non-gazetted staff, who are not covered by the Industrial Tribunal's Award are entitled to pension under the Rules applicable to the Bihar Government servants in force from time to time and that in regard to those, who were not permanent on 1-4-1958, the Board would give them the benefit of Contributory Provident Fund under the Board's CPF Rules and on their being made permanent, they will have the right to opt for the pension scheme after surrendering the entire amount of Board's contribution to their Provident Fund Account and the interest credited thereon or to continue to avail of provident fund benefits. The option was to be exercised within six months of the date of the order. However, the said resolution stood superseded by framing of 1976 Regulation which deals with the service condition of the employees of the Board, Further, in any case, by the said resolution, only the Board's employees not covered by the Award have been made entitled to get pension under the Rules applicable to Bihar Government servants in force from time to time and not that all the Rules/Government decision/Circular/dealing with terminal/pensionary benefits of the Bihar Government servants will apply to the Board's employees mutatis mutandis.
15. In 1987 the Board, vide its Resolution No. 393 dated 8-12-1987, introduced Pension-cum-GPF. Scheme with respect to all its employees who so far were born on non-pensionable scheme and were under GPF. Rules of the Board. Such employees were to exercise option to continue in GPF. Scheme within three months and option once exercised was to be treated as final. However, it provided that if no option is received within the prescribed time limit, it would be presumed that the employee opted for the new Pension-cum-GPF. Scheme. On enforcement of the said decision, substitution was made in the existing rule 50 of the Board's CPF. Rules. This provision was treated as Regulation under Section 79(c) of the Electricity (Supply) Act, 1948 and the provisions in the Service Regulations and other provisions, if any, under the existing rules and regulations of the Board, contrary to the above provision were superseded to the extent of conflict. In the said resolution also there is nothing to even indicate that the Government Rules or Circulars with respect to terminal/pensionary benefits are to apply mutatis mutandis to the employees of the Board.
16. I find force to the contention of the learned Counsel for the petitioner that Rule 43 (b) of the Bihar Pension Rules has not no application on the face of specific rule as provided in 1976 Regulation framed by the Board in exercise of the powers conferred by Section 79-C of the India Electricity (Supply) Act, 1948. Chapter VIII of the said Regulation deals with termination of service and terminal benefits and it does not provide for any such provision as provided in Rule 43 (b) of the Bihar Pension Rules. On the contrary, under Regulation 77, the gratuity is to be paid to an employee in accordance with any statute or separate rule/regulation governing payment of pension and gratuity framed by the Board except when an employee has been dismissed from service after department proceedings or removed from service on the ground of moral turpitude. Thus, it is evident that under 1976 Regulation, gratuity/ pension can be withheld only when an employee has been dismissed from service after departmental proceedings or removed from service on the ground of moral turpitude. Accordingly, I find that in view of 1976 Regulation, the rules particularly executive orders issued by the Government will have no application in the case of the employees of the Board and they will be governed by the 1976 Regulation and, thus, the Board cannot be derive any help either from Rule 43 (b) or executive orders of the Government dated 22-8-1976 and 31-7-1980, referred to above, to withhold 10% of pension and gratuity during the pendency of the departmental/judicial proceeding, as alleged.
17. Further, I fail to appreciate as to how even Rule 43(b) is at all relevant for the purpose of withholding of 10% pension and gratuity on the face of the stand of the Board itself in the counter-affidavit that Rule 43(b) postulates permanent withdrawal or withholding of pension and has no application where the pension has been fixed provisionally at the rate of 90% and 10% has been withheld because such situation is only envisaged by a circular issued by the State Government. Clarified by the liberalised pension rules vide Government Resolution No. 3014 dated 31-7-1980. However, learned Counsel for the Board submitted that in view of the principle decided by the Division Bench of this Court in the case of the State of Bihar v. Ganga Bishun Mahto, reported in 2001 (4) PLJR 435, the Board is justified in withholding 10% of pension and gratuity till the conclusion of the proceeding/case.
18. I am unable to accept the said submission of the learned Counsel for the Board. In the case of State of Bihar v. Ganga Bishun Mahto (supra) the question about the applicability of the Government rule/circular to the Board's employees was not raised obviously as it was not the case of the employees of the Board and against the respondent-Board. I have already held that the Government circulars are not applicable in the case of the Board's employees and the said Division Bench judgment is of no help to the learned Counsel for the Board. However, the Division Bench in the case of the State of Bihar v. Ganga Bishun Mahto (supra) though has noticed the decision of the apex Court in the case of Deokinandan Prasad v. State of Bihar and Ors., reported in AIR 1971 SC 1409, but proceeded to decide it in ignorance of the fact that in the said case the apex Court held that right to receive pension flows under the Rules and that it is a right to property under Article 31(1) of the Constitution and by mere executive order, the State Government has no power to withhold the same. Further, the Division Bench has upheld the validity of the Government Circulars considering the scope of Rule 139 of the Bihar Pension Rules as, according to their Lordships, in case of pendency of the proceeding after superannuation, the concerned authority cannot take a final decision under Rule 139 regarding the satisfactory service and in such situation, there would be delay in payment of retiral dues to the superannuated employee and, thus, held that to meet the said situation and to mitigate the hardships in the retired employees, the said provision has been made in ignorance of the decision of the Full Bench wherein the Full Bench has pointed out that the scope of proceeding under Rule 43 in case of a retired servant is completely different from the scope of the a proceeding in an ordinary disciplinary enquiry against a person in service because, as pointed out, in ordinary disciplinary proceeding when the person concerned is still in service, he can be subjected to any of the punishments referred to in the Classification, Control and Appeal Rules, but, in case he retires, the only action which can be taken against him, if the charges are proved against him, is only those provided in Rule 43(b) of the Rules. The Full Bench held that the scope of Rules 43 (b) and 139 are quite different and there is no question of applicability of Rule 139 if Rule 43 is attracted.
19. The Supreme Court in the case of the State of Bihar v. Mohd. Idris Ansari, reported in (1995) 3 SCC 56 : 1995 (2) PLJR (SC) 51, on conjoint reading of Rule 43 (b) and Rule 139 of the Bihar Pension Rules found that they project the following pictures:
(I) A retired Government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory.
(II) Even if the service record of the concerned officer is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory or that there is proof of grave misconduct against the concerned officer during his service tenure, the State Government can exercise revisional power to reduce the pension but the revision is also subject to the rider that it should be exercised within 3 years from the order sanctioning authority and not beyond the period.
The apex Court held that so far as the second type of cases is concerned, the proof of grave misconduct on the part of the concerned Government servant during his service tenure will have to be called out by the revisional authority from the departmental proceedings or judicial proceedings which have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43 (b). Consequently a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceeding could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of such departmental proceedings against him.
20. In the case of D.V. Kapoor v. Union of India and Ors., reported in AIR 1990 SC 1923, the apex Court while considering the scope of Rule 9 of the Central Civil Services (Pension) Rules held that 'The employee's right to pension is a statutory right. The measure of deprivation, therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as if offends the right in assistance at the evening of his life as assured under Article 41 of the Constitution....' The apex Court further held that 'The exercise of power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct of negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employees, subject to minimum of Rs. 60/-'. The judgment of D.V. Kapoor v. Union of India (supra) has also been considered by the larger Bench of the apex Court in the case of Jarnail Singh v. Secretary, Ministry of Home Affairs and Ors., reported in (1993) 1 Supreme Court Cases 47. Their Lordships did not agree with the decision in D.V. Kapoor's case only to the effect that the power of President in Rule 9 prior to its amendment in 1991, was confined only to withholding pension and it did not extend to gratuity as well. To the above extent, the judgment in the case of D.V. Kapoor was held per incuriam. But the view taken by the apex Court in D.V. Kapoor's case that exercise of power by the President under Rule 9 is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct etc. and in absence of such a finding the President is without authority of law to impose penalty of withholding pension or to order recover of the pecuniary loss has rather been upheld.
21. Thus, I find that even if Rule 43 (b) of the Bihar Pension Rules is applicable to the Board's employees, the Board, in the facts and circumstances, is legally not justified in withholding of payments aforementioned. It is well settled that a departmental proceeding initiated prior to retirement automatically lapses on superannuation unless there is specific rule under which such proceeding is deemed to continue even after retirement. However, the Full Bench held that a departmental proceeding pending at the time a Government servant retires may continue after retirement and no specific or express order of the Government to this effect is necessary. But in the Full Bench decision also it is not held that compliance of proviso to Rule 43 (b) shall not be required with respect to such proceedings. Moreover, the Full Bench has not taken into consideration the decision of the apex Court in the case of D.V. Kapoor v. Union of India (supra) wherein considering the specific provision contained in Rule 9 (2) (a) of the Central Civil Services Pension Rules, which provides that 'the departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.' The apex-Court held that the disciplinary proceedings initiated under the Conduct Rules must be deemed to be proceedings under the Pension Rules and shall be continued and concluded by the authorities by which the proceedings have been commenced in the same manner as if the Government servant had continued in service and not that Rule 9 (1) itself, which is in pari materia to Rule 43(b) of the Bihar Pension Rules, which provides for automatics continuance of such pending proceedings.
22. However, Bihar Rule does not provide for any similar provisions as provided for in Rule 9 (2) (a) of the CCS (Pension) Rules, 1972 and thus in the absence of such provision in the Bihar Rules, there cannot be any question of automatic continuance of the proceeding on cessation of the relationship of master and servant of a Government servant on his retirement in view of the settled principle that the proceeding initiated while in service would lapse as has been held in the case of Kirti Bhushan Singh v. State of Bihar and Ors., reported in AIR 1986 SC 2116 : 1986 PLJR (SC) 43; Bhagirathi Jena v. Board of Directors, CSFC, reported in (1999) 3 SCC 666; AIR 1999 SC 1841, and the State of U.P. v. Sri Krishna Pandey (supra). It is also well settled that after a person is allowed to retire, the relationship of master and servant ceases and no order to the detriment of the employee concerned can be passed unless the rule specifically provides for it or vests power in the authority. In the case of High Court of Punjab & Haryana v. Amrik Singh, reported in 1995 (Supp) (1) SCC 321, the apex Court held that after retirement the respondent-petitioner was no longer in service and consequently the proceeding initiated prior to his retirement met its natural death after he ceased to be in service. The Supreme Court in the case of Bhagirathi Jena v. Board of Directors, CSFC (supra), while distinguishing its earlier decision in the case of Takhatray Shivatattray Mankad v. State of Gujarat, reported in 1989 Supp (2) SCC 110, held that in the absence of similar provision enabling the continuance of the departmental enquiry even after superannuation for the purpose of finding out whether any misconduct was established which could be taken into account for the purpose of 241-A, the decision in Mankad's case cannot held the respondent. According to the apex Court, the effect of retirement is that the enquiry lapsed after his retirement in the absence of specific provision relating to it after retirement.
23. It is true that the Full Bench has taken notice of the decision of the apex Court in the case of State of U.P. v. Brahma Batt Shrma, reported in AIR 1987 SC 943, in which the question before the apex Court was about the validity of the notice issued under Article 470(b) of the Civil Services Regulations, which is in pari materia with Rule 139 of the Bihar Pension Rules. The apex Court observed as follows:
'....but if the disciplinary proceedings could not be completed and if the charges of serious allegations are established, which may have bearing on the question of rendering efficient and satisfactory service, it would be open to the Government to take proceedings against the Government servant in accordance with rules for deduction of pension and gratuity' which obviously means that in order to invoke the powers even under Rule 139, the Government is to take proceeding against the Government servant in accordance with rules for deduction of pension and gratuity if the disciplinary proceeding could not be concluded and if the charges of serious allegations are established, which may have bearing on the question of rendering efficient and satisfactory service.
24. In the case of State of U.P. v. Sri Krishna Pandey, reported in (1996) 9 SCC 395, where the Supreme Court was considering the scope of the Rule 351A of the Civil Services Regulations, which is in pari materia to Rule 43 (b) of the Bihar Pension Rules, held that '.....proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Enquiry, there is no provision that the proceedings be initiated as a disciplinary measure the action initiated earlier would remain unabated after retirement. If Regulation 351-A is to be operative in respect of pending proceedings, by necessary implication prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the Regulation also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e. the cause for the institution of proceedings should not have taken places more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place.' Thus, the apex Court also had doubt that Regulation 351-A can be made operative in respect of pending proceedings by necessary implication but even if such interpretation was possible the apex Court felt the necessity of complying with the requirement of the terms provided in the provided in the proviso to Regulations 351-A under which sanction of the Governor is required even in respect of pending proceedings and not that the other requirements of the proviso to the said Regulation shall not apply to pending proceedings.
25. The provision contained in Rule 43(b), which was inserted by CS No. 73 dated 10th October, 1960, obviously is with reference to the provisions then contained in Rule 73(f) of the Bihar Service Code, according to which, the Government servant under suspension on the charge of misconduct was not required or permitted to retire on reaching the age of compulsory retirement until the enquiry into the charges was concluded and a final order was passed by the competent authority, The power to continue such proceeding pending before retirement could at best be derived only from Rules 73 to 75 of the Bihar Service Code under which a Government servant could be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds to be recorded in writing and no Government servant under suspension was to retire from service except with the specific approval of the State Government. Thus, it is evident that where a Government servant was allowed to retire without the exercise of the aforesaid power of retaining him in service, the power to continue the proceeding already initiated while in service could be exercised only in terms of proviso to Rule 43 (b) and not otherwise.
26. Rule 73 (f) of the Bihar Service Code was ceased to be in operation with effect from 1st November, 1970, vide FD Memo No. 3/FI-501/70-12753 F. dated 26-11-1970 and the State Government decided that the Government servants under suspension should retire on reaching the age of superannuation irrespective of the question whether enquiries into the charge or departmental or judicial proceedings initiated against them have been concluded or not and, further, that the enquiries or proceedings that might have been already started or likely to be taken up against Government servants in future would, however, be continued even after their retirement from Government service in accordance with the procedure laid down in Rule 43 (b) of the Bihar Pension Rules. Thus, it is clear that there is no provision that such proceeding can continue irrespective of the bar provided in Rule 43(b).
27. In the case of Bajrang Deo Narain Sinha v. State of Bihar, reported in 1999 (3) PLJR 949, the Division Bench relying upon the decision of the apex Court in the case of D.V. Kapoor v. Union of India and Ors. (supra) held that the State cannot withhold a pension or any part thereof till such time an order is passed under Rule 43 (b) and, further, that it is only in the case of proved misconduct that a part or whole of the pension can be withheld.
28. The reliance placed by the learned Counsel for Board on the decision in the case of State of Orissa v. Kalicharan Mohapatra, reported in 1995 (6) SCC 105, is of no avail. In the said case there was specific provision in the rule as to what amount of pension shall be payable during the pendency of a departmental or judicial proceeding and, thus, the Supreme Court held that refusal to sanction the pension finally during the pendency of the prosecution is permissible. There is no such rule in the Bihar Pension Rules and on the contrary, the rule clearly provides for withholding or withdrawing or order for recovery only if the pensioner is found guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence in such proceedings. Thus, in my opinion, by issuing administrative instruction the Government has attempted to supplant the rule and not supplement it as was the case before the apex Court in the case of Sant Ram Sharma v. State of Bihar, reported in AIR 1967 SC 1910. In the case of Sant Ram Sharma v. State of Rajasthan, reported in AIR 1967 SC 1910, the question before the Supreme Court was as to whether the State of Rajasthan was competent to issue administrative instructions regarding the principles to be followed in promotion to selection grade will statutory rule to that effect is framed. The Court upheld the validity of existence of administrative instructions in the exigency of the case. It is well-known that water cannot rise higher than its source and, as such, as per the principle decided by the apex Court in the case of Sant Ram Sharma (supra) it is only in the case where the power is vested in the rule and mode is not provided for its exercise that the authority can supplement it by issuing administrative instructions and not that where the exercise of power under the rule itself is provided under certain conditions.
29. In my opinion, by issuing such administrative instruction, the Government has attempted to impose punishment even before a person is found guilty, which is contrary to Rule 43 (a) and (b). The Government in exercise of the power cannot override or negate the effect of statutory provision by a circular/executive order or administrative decision (see decision of the apex Court in the case of Deokinandan Prasad v. State of Bihar and Ors. (supra) and of this Court in the case of Rabati Raman Kanth v. Chairman, Bihar State Electricity Board and Ors., reported in 2000 (1) BLJ 560 Para 16 to 21).
30. It is well settled that a decision given per incuriam is not binding. In the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour, Chandigarh and Ors., reported in (1990) 3 SCC 682, the apex Court held that'..... A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court.' (Underlining is mine for emphasis). This Court has already dealt in detail that the Division Bench in the case of State of Bihar v. Ganga Bishun Mahto (supra) has answered the question in ignorance of Rules 73 to 75 of the Bihar Service Code and the decisions of the apex Court passed in case of State of U.P. v. Sri Krishna Pandey, Kirti Bhushan Singh v. State of Bihar and Ors., Bhagirathi Jena v. Board of Directors, CSFC, D.V. Kapoor v. Union of India and High Court of Punjab and Haryana v. Amrik Singh (supra) and, thus, in my opinion, the said decisions of the Full Bench and the Division Bench are per incuriam and not settler on the questions aforementioned.
31. Thus, I am unable to appreciate the submission of the learned Counsel for the Board that the bar of four years provided in the said rule will not be attracted in the present case as the proceeding was initiated before retirement, more so on the face of the stand of the Board itself in the counter-affidavit that the departmental proceeding drawn before retirement automatically converts into a proceeding under Rule 43 (b) after superannuation. It is difficult to reconcile the two. Either there is no proceeding and the proceeding initiated earlier lapsed in the absence of any specific rule/order after the petitioner was allowed to superannuate from service as has been held in various decisions of the apex Court such as in the case of Kirti Bhushan Singh v. State of Bihar and in the case of Bhagirathi Jena v. Board of Directors, OSFC (supra), or it can be one as contemplated under Rule 43 (b) of the Bihar Pension Rules, otherwise it will be anomalous situation inasmuch as the proceeding instituted prior to retirement but did not conclude can only survive under Rule 43 (b) and yet to hold that the bar provided therein will apply only to those cases where the proceeding is instituted after retirement and not otherwise would be absurd and lead to discrimination.
32. In fact, it is only under proviso to Rule 43 (b) that the Government has been vested with the power to initiated departmental proceeding if not instituted prior to the retirement of a Government servant or during his re-employment, subject to various requirements and out of which one of it is that it shall not be instituted save with the sanction of the State Government and the second requirement is that it shall not be instituted in respect of an event which took place not more than four years before the institution of such proceedings. Similar rider is applicable with respect to the judicial proceeding if not instituted while the Government servant was on duty either before retirement or during re-employment. Under Clauses (c) consultation of the Bihar Public Service Commission is mandatory before passing of the final order.
33. Further, Rule 43 (b) only gives power to the Government to withhold or withdraw a pension or any part of it whether permanently or for a specified period, and also order recovery from a pension of the whole or part of any pecuniary toss caused to it 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. The said rule is very clear that such power can be exercised by the Government only if the pensioner is found guilty in the departmental or judicial proceeding and not otherwise. The Supreme Court in the case of the State of Bihar v. Mohd. Idris Ansari (supra), while dealing with Rule 43 (b) of the Bihar Pension Rules, held that 'a mere look at these provisions shows that before the power under Rule 43 (b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental or judicial proceedings the concerned Government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. 'Further, it has been held that'.......the proof of grave misconduct on the part of the concerned Government servant during his service tenure will have to be called out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43 (b).'
34. Under Sub-rule (a) future good conduct is an implied condition of every grant of pension and the power to withhold or withdraw pension or any part of it is to be exercised after the retirement of a Government servant if the pensioner is convicted of serious crime or found guilty of grave misconduct. Thus, before the said power can be invoked, there has to be an order convicting the pensioner of serious of serious crime or finding of his being guilty of grave misconduct. Under Sub-rule (b) similar power has been vested in the State Government with further addition that the order in that regard can be passed permanently or for a specified period and, further also for
the recovery from pension of any pecuniary loss caused to the Government. But this power can also be exercised when 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. Thus, it is evident that the power under Sub-rule (b) is to be exercised in respect of finding in regard to misconduct or negligence arrived either during the service tenure of a Government servant or even after his retirement, but since after retirement the proceeding initiated earlier terminates, exception has been provided in the proviso to Sub-rule (b) where pensioner can also be proceeded departmentally or judicially even after his retirement but with riders provided therein such as it cannot be instituted save with the sanction of the State Government, and shall be in respect of an event which took place not more than four years before the institution of such proceedings, and 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. The rider of four years is to also apply to judicial proceedings under Clause (b) of the said proviso. Under its Clause (c), the Bihar Public Service Commission is required to be consulted before final orders are passed.
35. Moreover, it is contrary to equity and all canons of justice that an employee be kept deprived of his retiral benefits arbitrarily in the garb of continuance of proceedings indefinitely which in most cases including in the present case is due to unintelligible action on the part of the authority concerned. According to the decision of the apex Court in case Deokinandan Prasad v. State of Bihar and Ors. (supra), grant of pension is statutory right as well as right to property under Article 31(1) of the Constitution and the same, in my opinion, cannot be negated by undue prolonging of the proceedings. Thus, in my opinion, the authority concerned should ensure completion of proceedings within a reasonable time keeping in view the relevant privations including one as is provided in Government Resolution No. 12127 dated 17th July, 1979, which provides for completion of the proceedings within 90 days.
36. In the result, the writ application is allowed. I the respondent-Board is directed to release the remaining amount of pension, gratuity and leave encashment and other retiral dues, if any, within two weeks, failing which the concerned authority shall be liable to pay a cost of Rs. 1,000/- (one thousand) from his own pocket to the petitioner and the petitioner will be at liberty to file two-page affidavit for revival of this matter and for taking appropriate action. However, in the facts and circumstances of the case, there shall be no order as to costs.