Pension can be withheld only when a person is convicted or when he is punished for grave misconduct: Justice Bibek Chaudhuri

In Prabhakar Prasad Singh vs. The State of Bihar through Principal Secretary State Tax, Commercial Tax Department, Government of Bihar & Ors. (2026), Justice Bibek Chaudhuri of Patna High Court delivered a 10-page long judgement dated June 23, 2026, wherein, he concluded:" 12. It is needless to say that the pension is deferred portion of compensation for rendering long years of service. It is a hard earned benefit accruing to an employee in the nature of property. It is not a bounty to be disbursed contrary to rules, but very basis for grant of such pension is to facilitate a retired government employee to live with dignity in winter of his life. Such a right cannot be curtailed by way of an executive fiat. Power to curtail pension or any portion thereof must be based on valid ground in accordance with law. Section 43 clearly postulates that pension can be withheld only when a person is convicted or when he is punished for grave misconduct. Till date, the petitioner was not convicted in any criminal case nor punished with grave misconduct. Therefore, the petitioner is entitled to get the remaining amount of his retiral benefits, which was withheld unauthorizedly by the respondents. 13. In view of the aforesaid facts and circumstances, the instant writ petition is allowed. 14. The respondent authority is directed to clear the retiral dues to the petitioner, which has been withheld, within a period of four weeks from the date of this order." The judgement refers to Rule 43 of the Bihar Pension Rules, 1950.  

The writ petitioner was a retired government employee, who filed the writ petition for issuance of an appropriate Writ/writs, order/orders, direction/directions in the nature of certiorari to set aside the Memo issued by the State Tax Additional Commissioner-Cum-Joint Secretary, Department of Commercial Tax Government of Bihar respondent no. 3 i.e. State Tax Additional Commissioner Cum Joint Secretary, Department of Commercial Tax, Government of Bihar whereby he has wrote letter to Principal Accountant General, Bihar, Patna, the respondent no. 4 stating therein that only 90% provisional Pension has been sanctioned to the petitioner and withheld the sanction of gratuity amount to the petitioner till final conclusion has not came in Judicial Proceeding in the light of the letter  issued by finance department. The petitioner had sought a direction to the respondents to immediate Pay the 100% Pension amount of gratuity and amount of unutilized leave salary to the petitioner along with 18% interest per annum. 

The petitioner had retired from service on March 31, March, 2022. After his retirement on superannuation, he was entitled to get his retiral benefits, such as pension, gratuity, amount of group insurance and amount of unutilized leave salary. 

Justice Chaudhuri observed: "7. It is not in dispute that a departmental proceeding was initiated against the petitioner. The petitioner was found guilty and minor punishment of withholding two increments was imposed. After completion of departmental enquiry, he again joined his service and worked without any allegation till the date of his superannuation. Thus, after the allegation of embezzlement of fund and completion of departmental enquiry, he performed his duties to the satisfaction of his authorities. 8. Now, the question that requires to be adjudicated is as to whether a portion of retiral benefit can be withheld by
the respondents on the ground of pendency of criminal cases for more than 22 years." 

A plain reading of the relevant provision revealed that the provincial government reserves the right of withholding or withdrawing a pension or any part of it, if the petitioner is convicted of serious crime or be held guilty of grave misconduct. The judgement recorded: "11. Till date, the petitioner was not convicted in any criminal case, concerning embezzlement of fund. He was also not held guilty of grave misconduct. In the departmental proceeding, only minor penalty of withholding two increments was imposed. It is already recorded that subsequently the petitioner performed his duties till the date of his superannuation satisfactorily."

Justice Ritesh Kumar sets aside orders by Labour Resources Department, restores petitioner's pension to 100%, directs refund of 20% deducted pension

In Sudhanshu Shekhar Tripathi vs. The State of Bihar through the Chief Secretary & Ors. (2026), Justice Ritesh Kumar delivered a 37-page long judgment dated April 9, 2026, wherein, he concluded:"28. The respondent authorities are directed tor restore the pension of the petitioner to 100% and to refund/return the amount to the tune of 20%, which has been deducted from the pension of the petitioner till date, within a period of three months from the date of receipt/production of a copy of the order. The respondent authorities are further directed to make payment of the entire 100% of the pension/post-retiral dues which have not been paid to the petitioner on account of pendency of the departmental proceeding, within the period aforementioned. If the entire exercise will not be completed within a period of three months, then the petitioner would be entitled for interest @ 6% from the date of filing of the writ petition till the date of its actual payment. 29. The writ petition is allowed with the direction above mentioned."  

The other seven respondents were:  Principal Secretary, Department of Labour Resources, Government of Bihar, Deputy Secretary, Department of Labour Resources, Officer On Special Duty, Department of Labour Resources,  Director of Employment, Directorate of Empolyment and Training Department of Labour Resources, Accountant General (A and E) Bihar, Director of Provident Fund, Finance Department, and District Treasury Officer, Gaya, Bihar. 

The writ petition was filed with prayer calling upon the respondents to show cause why rule nisi in the nature of writ and/or in the nature of writ of certiorari be not issued upon the respondents and the order dated 15.05.2023 passed by the Officer on Special Duty, Department of Labour Resources, Government of Bihar be quashed and or cancelled; further for issuance of writ/order/directions upon the respondent(s) to quash the entire disciplinary proceedings under Memo No.2887 & 2888, both dated 31.10.2017 issued by the respondents upon the petitioner; further issue a writ of or in the nature of writ of mandamus commanding and/or directing the respondents to forthwith release the post-retirement benefits, withheld so far, with interest admissible to the petitioner.

The writ petition was filed because the petitioner having been allocated the Bihar Employment Service, gave his joining as a District Employment Officer on 02.04.1992. He was promoted to the post of Assistant Director of Employment on 02.04.2004 in the pay scale of Rs. 15600-39100/- with Grade Pay of Rs. 6600/-. Subsequently, the petitioner was granted promotion to the post of Deputy Director of Employment and thereafter superannuated from service on 31.10.2017. On 16.10.2017, the petitioner informed the Principal Secretary, Department of Labour Resources,  Government of Bihar, Patna about fake appointments on Class-III and Class-IV posts in the Department of Employment and the need to enquire into the matter. Pursuant to the Letter dated 16.10.2017, an enquiry was conducted and without any basis the department initiated departmental proceeding against the petitioner vide Resolution No. 2887 and 2888, both dated 31.10.2017, but the same was not served upon the petitioner, since on the same day he has superannuated. The said resolutions were not served upon the petitioner, since the same were said to have been sent to the previous place of posting of the petitioner i.e. Gaya Division, Gaya, therefore, the same was returned unserved. However, vide Memo Nos. 3112 and 3114 dated 16.11.2017 issued under the signature of the Deputy Secretary to the Government, Labour Resources Department, Government of Bihar, Patna a decision was taken to convert the departmental proceeding, initiated against the petitioner vide Memo No. 2888 dated 31.10.2017, in the proceeding under Rule, 43(b) of the Bihar Pension Rule, 1950. The petitioner was served with all the letters mentioned hereinabove i.e. Resolution Nos. 2887 and 2888 dated 31.10.2017 and Resolution Nos. 3112 and 3114 dated 16.11.2017, through registered post on 22.11.2017. Along with the letters, the charge of  Memo was also annexed, from where the petitioner came to know about the initiation of departmental proceeding against him. Subsequently vide Letter No. 3468 dated 04.12.2017 issued under the signature of the Deputy Secretary to the Government, Labour Resources Department, Government of Bihar, Patna the petitioner was informed that the entire gratuity has been kept withheld due to the pending enquiry against him and he was also informed that his pension has been reduced by 10%. 

The petitioner's senior counsel submitted that being aggrieved with the decision of the State Government the petitioner preferred C.W.J.C. No. 720 of 2018 before the Hig Court, wherein a Co-ordinate Bench of this Court vide its order dated 15.01.2018, while directing the respondent authorities to file counter affidavit, stayed further proceeding in the matter. The writ petition filed by the petitioner was finally heard by a Co-ordinate Bench of the High Court and vide order dated 05.09.2018, the same was partly allowed by quashing the departmental proceeding in relation to Letter Nos. 2887 and 2890 dated 31.10.2017 and further directed that the proceeding related to Letter Nos. 2887 and 2888 dated 31.10.2017 will continue, subject to the observations made in  the order dated 05.09.2018. The petitioner also filed C.W.J.C. No. 16529 of 2017 and the same was disposed of vide order dated 19.04.2019 passed by a Co-ordinate Bench of the High Court with a direction to the respondent to release the withheld retiral dues and 90% gratuity amount in favour of the petitioner.

The petitioner's senior counsel submitted that in view of the observations made by the Single Judge vide his order dated 05.09.2018, passed in C.W.J.C. No. 720 of 2018, the Joint Labour Commissioner, Bihar vide Memo No. 2010 dated 08.05.2019 directed the Enquiry Officer to produce the letters/documents mentioned therein, in the enquiry, so that decision can be taken that whether the departmental proceeding under Rule 43 (b) of the Bihar Pension Rules has been initiated in violation of the provision contained therein or not, but even then no such documents were provided to the petitioner or produced before the authorities concerned. The petitioner filed an appeal before this Court against the order dated 05.09.2018 passed in C.W.J.C. No. 720 of 2018. The appeal filed by the petitioner was numbered as L.P.A. No. 1553 of 2018. 

The petitioner's counsel also submitted that vide Letter dated 23.08.2021 the petitioner again requested the Conducting Officer to provide evidences with regard to proof of service of the charge-sheet upon the petitioner, before his date of retirement i.e. 31.10.2017, but no response was received by the petitioner, then he was constrained to again write a Letter dated 17.09.2021 to the Conducting Officer, wherein the petitioner again asked for the proof/evidence about the claim of serving notice/charge-sheet upon him before the date of retirement. Along with in the letter dated 17.09.2021, the petitioner also requested the Conducting Officer to call certain witnesses for their examination and cross-examination, to prove/disprove the charges against the petitioner, but no such document was ever provided to the petitioner.

The senior counsel for the petitioner submitted that the Enquiry/Conducting Officer vide his Letter No. 354 dated 04.02.2022 proceeded to submit his enquiry report before the disciplinary authority, wherein he came to the conclusion that since the delinquent has not appeared and denied the charges levelled against him, therefore, the Letter No. 1262 dated 27.08.2007 of the District Magistrate, Vaishali, which is the evidence of the charge-sheet, on the basis of the said letter the charges are found to be proved. Subsequently, vide Letter No. 691 dated 24.03.2022 issued under the signature of the Officer on Special duty, Labour Resource Department, Government of Bihar, Patna, second show cause notice was issued to the petitioner and the petitioner was directed to submits his reply within fifteen days, that why punishment be not imposed against the petitioner. In compliance thereof, the petitioner submitted his reply on 07.04.2022, wherein he took a defense that initiation of the departmental proceeding itself was in complete violation of the provisions contained in Rule 43 (b) of the Bihar Pension Rule, 1950 and other statutory Rules, as well as in violation of the principles of natural justice, in violation of Rule, 17 (3) and 17 (6) (iv) of the Bihar CCA Rule of 2005. The enquiry report was submitted without appreciation of any evidence. 

The counsel for the petitioner submitted that a second supplementary counter affidavit was filed by the respondent-State on 13.08.2022 in LPA No. 1553 of 2018, filed by the petitioner, wherein the extract of the dispatch register was produced, which goes to show that the resolution letter (along with charge Memo Nos. 2887 and 2888) dated 31.10.2017 were dispatched for the first time through registered on 02.11.2017 i.e. after the retirement of the petitioner. The  appeal preferred by the petitioner i.e. L.P.A. No. 1553 of 2018 was disposed of by the Division Bench of this Court vide judgment dated 31.08.2022 with a direction to the State-respondent to issue show cause notice to the petitioner in furnishing necessary materials with the Memo dated 31.10.2017 has been served upon the petitioner and on receipt of such notice and material, the petitioner was directed to file his explanation along with material information, if any and thereafter the disciplinary authority was directed to analyze the material fact and explanation to be submitted by the petitioner and take a decision within a period three months from the date of receipt of the order. The petitioner was directed to co-operate in deciding the issue with the disciplinary authority. It was further directed that till the decision is taken by the disciplinary authority, further action pursuant to the Memo dated 31.10.2017 shall be kept in abeyance, until decision is taken by the disciplinary authority.

Being aggrieved with the judgment dated 31.08.2022 passed in L.P.A. No. 1553 of 2018, the petitioner preferred SLP (Civil) No. 20131 of 2022. In the meantime the respondent-State, in compliance of order dated 31.08.2022 passed in L.P.A. No. 1553 of 2018, issued fresh show cause  notice to the petitioner, without providing any acknowledgment or any certificate mandated under Section 65 (B) of the Indian Evidence Act and in violation of the directions given by the Division Bench in L.P.A. No. 1553 of 2018. In compliance thereof the petitioner filed his reply on 25.11.2022 to the fresh show cause notice dated 10.11.2022, wherein he explained that the proceeding initiated vide Memo Nos. 2887 and 2888 dated 31.10.2017 i.e. on the date of his retirement, are illegal, invalid and ultra virus, as the respondent authorities have failed to prove the service of the said notice/charge Memo upon the petitioner, during his service period and nor did they submit acknowledgment or certificate required under Section 65 (b) of the Indian Evidence Act, to make any electronic document admissible as evidence. The SLP preferred by the petitioner was disposed of on 06.12.2022 by the Supreme Court of India, in view of the fresh show cause notice issued by the State-respondent, with a direction to the petitioner to participate in the proceeding before the disciplinary authority and it was observed that it goes without saying that all the defences which may be available to the petitioner are kept open to be considered by the disciplinary authority in accordance with law and on its own merits.

The senior counsel of the petitioner relied on Supreme Court's decisions in State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, Roop Singh Negi vs. The Punjab National Bank & Ors. reported in (2009) 2 SCC 570, Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. reported in (2020) 7 SCC 1 and Mohd. Idrish Ansari vs. State of Bihar & Ors. reported in AIR (1995) SC 1853.  

Justice Kumar observed:"...this Court finds that the department had not produced any witness in the enquiry, even though the charges levelled against the petitioner, were denied by him. Therefore, the enquiry itself stood vitiated. This fact finds support from a recent judgment of the Hon’ble Supreme Court of India in a case bearing civil Appeal no. 4130 of 2026 (Arising out of SLP (C) No. 2900 of (Jai Prakash Saini Vs. Managing Director, U.P. Cooperative Federation Ltd. & Ors).....". 

The Supreme Court held as follows:- “17. From the decisions of this Court in Sur Enamel (supra) and Kharak Singh (supra), followed in Chamoli District Cooperative (supra), which deals with similar service rules as are applicable here, it is now settled that unless the charged employee accepts his guilt in clear terms, an enquiry on the charges drawn against him would have to be held. In the enquiry, the employer/department would have to take steps first to lead evidence against the workmen / delinquent charged and give an opportunity to him to cross examine those witnesses. Only thereafter, the workmen / delinquent shall be asked whether he wants to lead any evidence and/or submit an explanation about the evidence led against him. Even in a case based solely on documentary evidence, unless the relied upon documents are admitted by the charged employee, a witness would have to be examined to prove those documents and when so examined, the witness would have to be tendered for cross-examination. 18. In the instant case, we find that the department had not produced any witness in the enquiry even though the charges levelled upon the appellant were denied by him. Therefore, in our view, the enquiry stood vitiated. Once the enquiry stood vitiated, the consequential order of punishment/ recovery cannot be sustained. We therefore allow this appeal. The impugned judgment and order of the High Court is set aside. The writ petition of the appellant stands allowed to the extent indicated below. The order of dismissal and consequential recovery is set aside. The Federation is, however, at liberty to hold a de novo enquiry, if it so desires, within a period of six months from the date of this order. If the Federation does not hold de novo enquiry as permitted above, the appellant shall be entitled to reinstatement with benefit of continuity in service including arrears of salary after adjusting suspension allowance, if any, paid already. In case the Federation chooses to hold an enquiry, it shall reinstate the appellant and place him under suspension till completion of the enquiry and during this period pay suspension allowance as may be payable in accordance with law. In case de novo enquiry is held, other service benefits including arrears of salary as well as benefits of continuity in service shall depend on the outcome of the enquiry.”

The High Court's judgement records that "No evidence has been brought on record by the respondent authorities to suggest that the disciplinary authority had ever directed for service of notice upon the petitioner through electronic mode and even if the same was sent to the petitioner, the same was sent by a sub-ordinate employee, by using his private computer, which is not permissible in law. Further, there is no valid proof of service of the said notice through electronic mode, upon the petitioner, since the required certificate in terms of section 65(b) (4) of the Evidence Act, by a Competent Officer was not brought on record by the respondent authorities and the office clerk, whose letter was brought on record, was neither authorized to grant certificate nor was the In-charge of the computer and he used his personal computer for the same, without any valid authorization. Further, even during course of the departmental enquiry there are discrepancies with regard to the email I.D, on which the said memo of charge dated 31.10.2017 is said to have been sent/dispatched, since different email IDs were mentioned, upon which the which the same was said to have been sent. Even the charges which were levelled against the petitioner were for the period, more than four years prior to his retirement and no proceeding in terms of the Rule 43 (b) of the Bihar Pension Rule, 1950 could have been initiated/conducted against the petitioner, after his retirement on 31.10.2017." 

Justice Kumar observed:"The Enquiry Officer or the disciplinary authority did not bothered to take into account the directions given by a Co-ordinate Bench of this Court in C.W.J.C. 720 of 2018, Hon’ble Division Bench in L.P.A. 1553 of 2018 and even the Hon’ble Supreme Court of India in SLP (Civil No. 20131 of 2022), which was preferred by the petitioner against the judgment dated 31.08.2022 passed in L.P.A. No. 1553 of 2018. 26. Accordingly from the considerations made above, this Court has got no option, but to set aside the Letter no. 1216 dated 15.05.2023 issued by the Officer on Special duty, Department of Labour Resources, Government of Bihar, Patna, resolution contained in memo no. 3480 dated 16.11.2023, issued under the signature of the Under Secretary to the Government, Labour Resources Department, Government of Bihar, Patna, letter no. 425 dated 02.02.2024 issued under the signature of the officer on special duty, Labour Resources Department, Government of Bihar, Patna and memo no. 848 dated 07.03.2024 issued under the signature of the Joint Secretary, Labour Resources Department, Government of Bihar, Patna." 

Justice Kumar relied on the High Court's judgment dated February 25, 2026 passed in Nutan Kumar Prabahat vs. The State of Bihar and Ors.), wherein, the Court held as follows:-“25. The High Court under Article 226/227 is entitled to interfere when the finding of fact is based on no evidence and if in every case where no valid evidence is laid at the enquiry proceeding, there is a remand made, it would be offering a premium to the negligence of the management/disciplinary authority and condoning the levity with which the departmental enquiry was conducted. It is the disciplinary authority, who appoints the Enquiry Officer and the Presenting Officer and it is expected that the Presenting Officer would be well versed in the procedures and also be informed in the manner in which evidence has to be laid before the Enquiry Officer, to prove the misconduct, alleged against a delinquent employee. In a disciplinary enquiry proceeding, it is also the trite principle that the standard of proof is preponderance of probability as distinguished from proof beyond reasonable doubt, as would be required in a criminal prosecution. However, if there is no evidence laid at the enquiry, there is no question of any preponderance of probability being drawn to find the allegations proved nor can the delinquent be penalised on the basis of peremptory finding without any valid evidence. The disciplinary authority had an opportunity in a properly constituted enquiry proceeding and if in such a proceeding no evidence was laid,the punishment of dismissal has to be found to be imposed on no valid evidence.”

Patna High Court's Division Bench modifies judgement by Justice Purnendu Singh in a service case

In The State of Bihar through the Principal Secretary, Education Department, Government of Bihar & Ors. vs. Md. Wasiqur Rahman & Anr. (2025), Patna High Court's Division Bench of Chief Justice P. B. Bajanthri and Justice Alok Kumar Sinha delivered a 6-page long judgement dated September 23, 2025, wherein it modified the 9-page long judgement dated August 24, 2023 by Justice Purnendu Singh in Md. Wasiqur Rahman vs. The State of Bihar through the Principal Secretary, Education Department, Government of Bihar & Ors. (2023). This is the 4th judgement authored by Chief Justice Bajanthri.

The question for consideration before the Division Bench was whether respondent No. 1 – Md. Wasiqur Rahman was entitled to count service from the year 1988 till November 22, 2011 for the purpose of extending retiral benefits including fixation of pension or not ? Till October 16, 1997 matter attained finality to the extent that respondent No. 1 obtained appointment to the post of Teacher by furnishing false and fabricated documents. The respondent No. 1 had right to question the District Magistrate’s decision insofar as giving finding that respondent No. 1 had furnished false certificate. In other words, he should have approached next higher forum or knocking the doors of this Court. On the other hand, he had submitted representation to the District Magistrate. In all fairness the District Magistrate should not have entertained the representation of respondent No. 1, it should have been transmitted to the appointing authority to respondent No. 1 i.e., appointing authority to Teacher post.

Justice Bajanthri observed:''5. Prima facie, we find that there must be a collusion among the office of the District Magistrate and respondent No. 1. In other words, the District Magistrate should have taken note of
earlier proceedings relating to that respondent No. 1 had filed false certificate and DSE report. In fact, DSE report should have been forwarded to appointing authority to respondent No. 1 for further proceedings. Therefore, having regard to the conduct of both the respective parties, the respondent No. 1 is not entitled to count service from the year 1988 to 14.10.1997 for the purpose of retiral benefits and pensionary benefits. That apart, he has not discharged the duties of the post in regular terms and certain breaks are found during the intervening period till 15.10.2017. In the light of these facts and circumstances, delay of 596 stands condoned in so far as filing of LPA and I.A. for condonation of delay is allowed." 

Justice Bajanthri concluded: "....respondent No. 1 is entitled to count service only from 15.10.1997 to 22.11.2011 or 30th November, 2011 towards retiral benefits and pension, if it is not fixed and paid as on this day, the same shall be calculated and disbursed in favour of the respondent No. 1. Further, arrears of
pension shall be extended from 30.11.2011 to this day. 8. The above exercise shall be completed within a period of six weeks from the date of receipt of copy of this order. To the above extent, order of the learned Single Judge stands modified." 

In his judgement, Justice Singh, the Single Judge  had concluded:'' 9. The action of the District Programme Officer (Establishment), Araria shows that he has not only committed jurisdictional error, but the available records reflect that, exercising his pure will and whims, has exercised arbitrarily, capriciously and perversely, being adamant in restraining himself by not complying with the orders of this Court. 10. Considering the deliberate inaction on the part of the District Programme Officer (Establishemnt), Araria, the Additional Chief Secretary, Education Department, Government of Bihar, is directed to take appropriate action in the matter relating to the payment of pension and gratuity to the petitioner by calling service records relating to the petitioner, thereafter, he is directed to comply with the direction passed in LPA No. 77 of 2008 considering the admitted fact that the petitioner had retired in the year 2011 and the total period of pensionable service is required to be taken from the date of appointment of the petitioner in the year 1988 in accordance with the provision of Bihar Pension Rules, 1950, and if it is found that the pension and gratuity as claimed by the petitioner is admissible, appropriate steps be taken to direct the concerned authority to sanction the pension and gratuity of the petitioner by forwarding the letter to the Accountant General, Bihar. 11. The above exercise is directed to be completed within a period of six weeks from the date of communication of this order." The Division Bench has modified this order to a limited extent. 

Departmental proceeding under Bihar Pension Rules, 1950 for events beyond 4 years from institution of proceeding is impermissible: Justice Nani Tagia

In Urmila Kumari vs. The State of Bihar through the Chief Secretary, Government of Bihar, Patna & Ors. (2025), Justice Nani Tagia of Patna High Court delivered the 5-page long judgement dated September 4, 2025 concluded: "Consequent upon setting aside of the order 12.07.2021 passed by Regional Deputy Director Education, Patna Division, Patna, the petitioner would be deemed to have retired from service and his pension be restored with immediate effect. The petitioner shall also be paid arrears of pension from the period when he has been denied such pension by reason of the impugned order in the writ petition, within a period of six months from today, i.e. 04.09.2025. 13. In the event the arrears of pension of the petitioner is not paid within the period prescribed hereinabove, the same shall carry an interest of 5%. 14. The writ petition is disposed off with the above directions." 

The petitioner's advocate included Senior Advocate Yogesh Chandra Verma, Dr. Gopal Krishna and Anuj Kumar. The counsels for the respondents were: Jitendra Kr. Roy,  SC 13 and Hitesh Suman, AC to SC-13. Justice Tagia drew on the decision of High Court's Division Bench in Geeta Kumari vs. The State of Bihar & Ors. (2024) delivered on October 29, 2024

The judgement recalled that several teachers were terminated from service on the ground that there initial appointments were irregular, which termination orders were put to challenge by filing various writ petitions before this Court including the petitioner whose writ petition No. was CWJC No. 19550 of 2016. All the writ petition filed were disposed off by an order dated 21.02.2017 whereby the termination orders of the teachers including the petitioner was set aside with a liberty to the State authorities to proceed afresh in accordance with law and pass appropriate orders after affording an opportunity of hearing. It was thereafter that a departmental proceeding was initiated against the petitioner, who was working as Assistant Craft Teacher in the State Girls High School, on April 11, 2017 alleging that at the time of appointment of the petitioner as Assistant Craft Teacher in the year 1989, the petitioner was over aged and accordingly the petitioner’s appointment as Assistant Craft Teacher was irregular. As the petitioner retired from service on January 31, 2018, the departmental proceeding initiated on April 11,  2017 was continued under Rule 43(b) of the Bihar Pension Rules, 1950 vide Memo No. 29 dated January 5, 2019. On conclusion of the departmental proceedings continued under Rule 43(b) of the Bihar Pension Rules, 1950 the impugned order dated July 12, 2021 was passed by the Regional Deputy Director Education, Patna Division, Patna whereby petitioner’s 100% pension, gratuity and encashment of earned leave was  withheld.

The petitioner challenged the impugned order dated July 12, 2021 issued by the Regional Deputy Director Education, Patna Division, Patna withholding the petitioner’s pension, gratuity and encashment of earned leave. She contended that under Rule 43(b) of the Bihar Pension Rules, 1950 the proceeding can be continued only with respect to an event which took place not more than four years before the institution of such proceeding. The petitioner had contended that since the proceeding initiated against the petitioner was for the event which took place beyond four years, the proceeding could not have been continued under Rule 43(b) of the Bihar Pension Rules, 1950. 

The senior counsel for the petitioner submitted that this issue was settled in an LPA preferred by a similarly situated person called Geeta Kumari in LPA No. 866 of 2024, wherein a departmental proceeding instituted and continued under Rule 43(b) of the Bihar Pension Rules, 1950 for the event that had taken place beyond four years of such institution of such proceedings had been held to be illegal and the order passed for withholding 100% pension, gratuity and earned leave was set aside.

In Geeta Kumari vs. The State of Bihar & Ors. (2024), High Court's Division Bench of Chief Justice K. Vinod Chandran, and Justice Partha Sarthy had delivered a 11-page long judgement dated October 29, 2024 recalling that the appeal was similar to that disposed of in LPA No. 1219 of 2023 Kamini Kumari & Ors. vs. The State of Bihar & Anr. (2024), wherein the Division Bench of Chief Justice Chandran and Justice Harish Kumar had delivered a 39-page long judgement dated February 27, 2024. It set aside the 87-page long judgement dated September 26, 2023 by Justice Rajeev Ranjan Prasad, the Single Judge The writ petitions from which the appeals arise, were cases in which the challenge was to the domestic enquiry proceedings initiated against teachers appointed long back, on allegations of their appointments having been made irregularly. The enquiries concluded with termination, some of which orders were once successfully challenged before the High Court and again the very same consequence was visited on the teachers who were still in service; after a de novo proceedings as permitted by the High Court. As against those who had retired; 100% of their pensions were withheld on the conclusion of enquiry proceedings. The domestic enquiry proceedings were initiated on the ground that the teachers who were the petitioners and the appellants, were appointed irregularly between 1980 to 1990.

In the earlier batch of writ petitions, it was noticed that in the year 1998 by reason of an order dated December 18, 1998 passed in Brajesh Kumar Sinha & Ors vs. the State of Bihar & Anr, CWJC No. 9847 of 1998 there was a direction to the Central Bureau of Investigation (CBI) to carry out investigation into the alleged irregular appointments. The CBI submitted its report on November 9, 2004 before the Chief Secretary, State of Bihar; but no FIR was registered or any criminal proceedings were initiated. The Government slept over the matter despite receipt of the CBI report. In the year 2016, another PIL was filed numbered as CWJC No. 10002 of 2016 Kaushal Kumar vs. the State of Bihar & Ors. in which the State was called upon to apprise this Court as to what transpired after the CBI enquiry report was filed. This led to a spate of domestic enquiry proceedings which were carried out in total violation of the principles of natural justice and also absolute disregard of the principles governing domestic enquiries; as enjoined upon in the Bihar (Classification Control and Appeal) Rules as also the Bihar Pension Rules.

A number of writ petitions were filed and a group of them in Shanti Kumari vs. State of Bihar (CWJC No. 17904 of 2016) were disposed of on January 17, 2017 finding that the petitioners, therein, who were teachers were deprived of a reasonable opportunity to canvass their respective cases, produce relevant documents and also the binding authorities relating to domestic enquiries. The Writ Court set aside the domestic enquiry proceedings and the termination orders passed, but left liberty to the State to proceed de novo with the enquiry proceedings.

Notably, it is based on such liberty reserved that the proceedings were taken against a number of teachers, some of whom had retired by the time the proceedings were initiated. Others who were reinstated in service by reason of the earlier writ proceedings having set aside the termination orders, were also proceeded with. Some of the writ petitions were filed against the proceedings initiated, others against the termination orders and many against the withholding of pension after retirement; which withholding was also of 100 per cent of applicable pension.

The High Court recalled that in Kamini Kumari case, it found that the proceedings against retired employees were against Rule-43(b) and Rule-139 of the Bihar Pension Rules. Reliance was also placed on the decision of the Supreme Court in State of Bihar vs. Md. Idrish Ansari; 1995 Supp 3 SCC 6.

Following the declaration in Md. Idrish Ansari case, it was held that the right of withholding of pension or
any part of it permanently or for a specified period by virtue of Sub clause-(i) and (ii) of Clause-(a) of the proviso to Rule 43(b) of the Bihar Pension Rules had to necessarily satisfy two requirements. One, that it can be instituted only with the sanction of the State Government and second, it can only be with respect to an event which took place not more than four years before the institution of such proceedings. All the proceedings which were taken up against the retired employees were with respect to the irregular appointments made between 1980 to 1990 far beyond the four-year period provided. There was also no sanction obtained from the State Government in any of the cases.

The Court's judgement reads: "10. Further, it was noticed that even in the enquiry carried out, the CBI report was not produced and it was not marked through the officer who prepared it; which alone can be valid proof of the document, even in a departmental proceeding. Mere, tabulation of the irregularity alleged against each teacher was produced but not proved in the enquiry through a witness. It was also held so, in the matter of the CBI report and the proceedings taken pursuant to it in paragraph no. 42, extracted hereinbelow: -
“42. At the risk of repetition, it has to be stated that the appointments made in the year 1981, 1988 and 1989 were subjected to a CBI inquiry, the report of which was filed in the year 2004. Apparently no FIR was lodged and the reports submitted remained with the State Government, without any further action. It was long after, in the year 2016 that a Public Interest Litigation motivated the State Government into taking action. The order in the PIL only directed the State Government to take proceedings in accordance with law. We have found that the State Government had flouted all principles of fairness in disciplinary inquiry and also violated the specific rules of procedure as brought out under Article 309 of the Constitution of India.”

In Roop Singh Negi vs. Punjab National Bank; (2009) 2 SCC 570, it was was specifically reiterated that departmental proceeding is a quasi-judicial proceeding, the enquiry officer perform in a quasi-judicial function and the charges levelled against the delinquent requiring to be proved. The enquiry officer, it was held had a duty to arrive at a finding based on the materials brought on record by the parties. A mere report filed by the investigating officer cannot be treated as evidence in the disciplinary proceeding, especially when, no witness was examined to prove the documents, was the authoritative pronouncement.

The High Court observed:"13. We additionally observe that the allegations raised in the Enquiry Report of the CBI were that, an advertisement was not issued, candidates were not sourced from the Employment Exchange, reservation roster was not followed, sanction of the Competent authority was not obtained and there was no interview; in the appointment of the teachers who were proceeded with. These are allegations against the government officers who appointed the teachers and not necessarily a misconduct committed by the newly appointed teachers. Indisputably all the teachers who had service had an unblemished record and there was nothing revealed in their service regarding their incapacity to discharge their duties or disentitlement to be so appointed....19. The facts are identical and the enquiry conducted against the appellant suffers from the same infirmities as pointed out in the decision of this Court in Kamini Kumari (supra) which was against the very same common judgment, impugned in this case. The appeal is allowed setting aside the impugned judgment dated 26.09.2023." 

The State respondents have contested the case by filing a counter affidavit, wherein the factual aspect of the case were disputed but referred to a decision rendered in CWJC No. 14172 of 2021 in which writ petition the challenge made to such an order passed by the respondent authorities withholding the pension, gratuity and encashment of earned leave, pursuant to conclusion of a departmental proceeding initiated and continued under Rule 43(b) of the Bihar Pension Rules, 1950 have been dismissed.

Notably, the Government Advocate did not dispute that the said decision rendered by the Single Judge in CWJC No. 14172 of 2021 was put to challenge in the LPA No. 866 of 2024, which LPA was allowed vide judgment dated October 29, 2024 and thereby set aside the orders passed by the respondent authorities withholding pension, gratuity and encashment of earned leave pursuant to conclusion of a departmental proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 for an event which took place beyond four years from the institution of such a departmental proceeding. The Government Advocate admitted that the issue raised in the writ petition for determination was squarely covered by the judgment rendered in the LPA No. 866 of 2024.

Justice Tagia observed: "10. In that view of the matter as the issue raised in this writ petition for determination has been stated to be squarely covered by the judgment rendered in the LPA No. 866 of 2024, this writ petition is also allowed by setting aside the order dated 12.07.2021 passed by Regional Deputy Director Education, Patna Division, Patna (Annexure-13 to the writ petition). 11. The writ petition accordingly stands allowed."

In the Kamini Kumari's case, the High Court had observed: "The appellant shall also be entitled to be paid Rs. 5000/- as litigation costs."

The termination order dated July 12, 2021 by Deputy Director, Regional Education Department, Patna Division, Patna relating to alleged misconduct of Urmila Devi, the petitioner was based on a blatant act of fraudulent misrepresentation regarding the petitioner’s selection pursuant to the advertisement dated March 24, 1988 published in Aaj newspaper. The letter letter terminating the services of the petitioner makes a unpardonable and indefensible claim that there was no such advertisement. The advertisement was annexed with the petition.  The Deputy Director, Regional Education Department, Patna Division, Patna had issued an office order dated July 12, 2021 in Memo No. 824 communicated that the departmental inquiry against the petitioner stands terminated and ordered cancellation of encashment of pension, gratuity and earned leave because of allegations against the petitioner under Rule 43 (b) and Rule 139 of Bihar Pension Rules. He failed to show which specific provision under Rule 43 (b) and Rule 139 of Bihar Pension Rules has been invoked for this action, In fact the provision under Rule 43 (b) make the order of termination of the services of the petition indefensible.

The Rule 43(b) reserves the right of the State Government to withhold or withdraw the pension or any part of it, whether permanently or for a specified period along with right of ordering the recovery from a pension, of any pecuniary loss caused to the Government. When the pensioner is found to be guilty of grave misconduct or caused pecuniary loss to the Government by misconduct or negligence, the proviso to the rule kicks in. The proviso prescribes that if proceedings are not instituted when the government servant is on duty, then it shall not be instituted without the sanction of the State Government. It is also provided that such inquiry shall only be in respect of an event which took place not more than four years before the institution of such proceedings. Both these mandatory requirements, one of sanction, and the other, of an absolution for any incident prior to four years prior to retirement, have not been complied with.        

In total violation of the principles of natural justice and also in absolute disregard of the principles governing departmental inquiries; enjoined upon in the Bihar (Classification Control and Appeal) Rules as also the Bihar Pension Rules, after retirement the petitioner, Urmila Kumari, a retired assistant teacher is yet to get her pension although in a catena of decisions of the Supreme Court and Patna High Court, it has been held that pensions cannot be withheld even when enquiry departmental proceedings are pending after retirement. She was appointed as Assistant teacher on February 13, 1989 subsequent to her application, interview by selection committee and selection pursuant to the advertisement dated March 24, 1988 published in Aaj newspaper. The departmental inquiry commenced some 29 years later, few months ahead of her retirement.  

The office order, Memo No. 824 dated July 12, 2021 issued by Deputy Director, Regional Education Department, Patna Division, Patna was without even an iota of legal basis. The order was legally invalid, malafide, unjust and arbitrary.  The order was error-ridden without perusal of relevant documents and the chain of orders issued prior to the issuance of July 12, 2021 order.  It is noteworthy that the office order, Memo No. 1023 dated August 24, 2016 issued by Deputy Director, Regional Education Department, Patna Division, Patna terminating 30 teachers including Urmila Kumari, the petitioner was quashed and the 30 teachers including her were reinstated with consequential benefits by the High Court in Shanti Kumari vs. The State of Bihar CWJC 17904 of 2016 by its judgement dated August 24, 2016. By office order, Memo No. 151 dated February 16, 2017 issued by Deputy Director, Regional Education Department, Patna Division, Patna, Urmila Kumari was reinstated along with others.

Few months ahead of the retirement of the petitioner from the service on January 31, 2018 after serving as assistant teacher for 29 years, office order, Memo No. 344 dated April 11, 2017 issued by Deputy Director, Regional Education Department, Patna Division, Patna informed Urmila Kumari  that a fresh enquiry is being instituted to examine the irregularity of her appointment. In the aftermath of her retirement, prior to the conclusion of the “fresh inquiry”, Deputy Director, Regional Education Department, Patna Division, Patna issued a letter with Memo No. 712 dated June 12, 2018 directing her to encash her earned leave and to encash the gratuity amount. By order dated July 20, 2018, a direction was issued for payment of her pension. The entire retiral benefit was paid to her. She started getting her pension as well.

The Deputy Director, Regional Education Department, Patna Division, Patna had issued a letter with Memo No. 29 dated January 5, 2019 directing a departmental enquiry against her. The District Programme Officer (Establishment), Patna-cum-Inquiry Officer issued Letter No, 1803 dated June 20, 2020 which was served upon the Deputy Director, Regional Education Department, Patna Division, Patna containing the enquiry report prepared in pursuance of the reply to show-cause submitted by Mrs. Urmila Kumari, submitted the findings of the Enquiry Officer. The report revealed that the matter related to the office of the District Education Officer which had appointed the petitioner but it did not have any document. Deputy Director, Regional Education Department, Patna Division, Patna issued a show cause notice to the petitioner vide letter no. 984 dated July 31, 2020. The petitioner submitted her reply on August 24, 2020. Without going into merit of the petitioner’s reply, Deputy Director, Regional Education Department, Patna Division, Patna issued an office order dated July 12, 2021 in Memo No. 824 communicated that the departmental inquiry against the petitioner stands terminated. But ordered cancellation of encashment of pension, gratuity and earned leave because of allegations against the petitioner under Rule 43 (b) and Rule 139 of Bihar Pension Rules.       

The judgement of the High Court in LPA No. 1219 of 2023 (Kamini Kumari vs. The State of Bihar) had found that the proceedings against retired employees were against Rule-43 (b) and Rule-139 of the Bihar Pension Rules. Reliance was also placed on the decision of the Supreme Court in State of Bihar Vs Md. Idrish Ansari; 1995 Supp 3 SCC 6. The 29-page long judgement dated April 15, 2024 in Neelam Kumari vs. The State of Bihar rough Principal Secretary, Education Department, Patna Letters Patent Appeal No.1260 of 2023 by the Division Bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar of Hon’ble Patna High Court set aside the  judgment dated September 26, 2023 order of withholding pension. 

A bare perusal of Rule 43(b) made 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. The right to receive pension was recognised as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330].

The pension granted to a government teacher on her retirement is 'property' within the meaning of Article 31(1) of the Constitution of India. The character of pension as 'property' cannot possibly undergo such mutation at the whim of a particular person or authority. The pension and gratuity are rights accrued by her for her service and cannot be withheld arbitrarily. The basic object behind crediting the benefit of pension, gratuity and other retiral benefits is that after retirement when an employee is of an old age, may not face any financial problem for her livelihood or necessities.

There was a compelling legal logic to review/rescind/cancel the termination order to pave the way for legitimate release of her pension in order to protect the fundamental right to life and livelihood of a retired lady teacher, the petitioner.

Also read: Division Bench led by 44th Chief Justice set aside judgement of Single Judge Bench of Justice Rajeev Ranjan Prasad 

Post retirement pensions cannot be withheld because of pending enquiry proceedings 

Patna High Court Chief Justice led Bench imposes costs on Bihar State