Patna High Court
Bipin KumarversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- AJIT KUMAR
Holding
The Court held that withholding of pension and gratuity without a charge‑sheet is unsustainable and ordered the release of the amounts with interest at 8% per annum.
Summary
Bipin Kumar, a retired government employee, filed a writ petition seeking the release of his full pension, gratuity and other dues which had been withheld on the ground of a pending vigilance case (no charge‑sheet filed). He contended that under the Bihar Pension Rules, 1950, the authorities could not invoke sections 43(c) and 43(d) to withhold benefits without a charge‑sheet. The Court examined the interpretation of rule‑43’s explanation (b) and held that judicial proceedings are deemed instituted only when a complaint is made or a charge‑sheet is filed, which was not the case here. Relying on the earlier judgment of Akhileshwar Mishra v. State of Bihar, the Court declared the withholding unlawful, ordered the release of the 10% pension and full gratuity, and directed payment of interest at 8% per annum. It also directed the petitioner to file a detailed representation within four weeks and the authorities to decide the claim within eight weeks, after which the petition was disposed.
Issues considered
- Whether the authorities can withhold 10% of pension and full gratuity under Bihar Pension Rules, 1950, sections 43(c) and 43(d) when no charge‑sheet has been filed in the pending vigilance case.
- Whether the memos denying pension and gratuity are liable to be quashed as illegal.
- Whether interest is payable on delayed payment of post‑retirement dues.
Legislation cited
- Bihar Pension Rules, 1950 — s. 43(b), 43(c), 43(d)
- Cr.P.C. — s. 173, 2(d)
Subjects
- pension
- gratuity
- Bihar Pension Rules
- withholding
- vigilance case
- interest
- mandamus
- certiorari
- post‑retirement benefits
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1112 of 2026
======================================================
Bipin Kumar Son of Ram Sewak Rajak, Resident of Bajrangbali Colony,
Phulwari, P.S.- Phulwari, District- Patna, Bihar- 801505.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, General Administration Department, Government
of Bihar, Patna.
3. The Principal Secretary cum Appellate Authority, Planning and
Development Department, Government of Bihar, Patna.
4. The Public Grievance Redressal Officer Cum- Additional Secretary,
Planning and Development Department, Government of Bihar, Patna.
5. The Under Secretary, Planning and Development Department, Government
of Bihar, Patna.
6. The Accountant General, Government of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Anand Ojha, Sr. Advocate
Mr. Ashok Kumar Karna, Advocate
For the Respondent/s : Mr. Standing Counsel (24)
Mr. Sudhanshu Shekhar, AC to SC-24
======================================================
CORAM: HONOURABLE MR. JUSTICE AJIT KUMAR
ORAL ORDER
2 05-02-2026 Heard learned Senior Counsel for the petitioner and
learned counsel for the State.
2. The writ petition has been filed for the following
reliefs :-
(i) Issuance of Writ in the nature of
mandamus to release full pension and gratuity
alongwith all other admitted dues, if any based on
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the last pay drawn by the Petitioner at the time of
his retirement applying the provision of the Bihar
Pension Rules for the purpose of correctly deciding
the action of denial of full pension and gratuity.
(ii) Issuance of Writ in the nature of
certiorari for quashing the Memo No. 812-00099
dated 03.10.2024, denying release of gratuity on
the illegal ground of pendency of the Vigilance P.S.
Case No. 27/2018 dated 02.07.2018 (without
charge sheet and without prosecution section)
against the petitioner contrary to the mandate of
Rule-43(b) as with amendments applicable on the
date of retirement of the Petitioner.
(iii) Issuance of Writ in the nature of
certiorari for quashing the Memo No. 812-00014
dated 03.12.2024 denying gratuity and pensionary
benefits on the illegal grounds of pendency of
Vigilance Case No. 27/2018 dated 02.07.2018.
(iv) Issuance of declaration that the order
contained in Memo No. 812-00099 dated
03.10.2024 denying legitimate dues illegally
withheld/retained by the Authorities on account of
pendency of Vigilance Case No. 27/2018 dated
02.07.2018 are illegal, without jurisdiction and the
Petitioner is entitled for suitable interest as held by
this Hon'ble Court and the Hon'ble Supreme Court
in the Lukhnow Development Authority vs. M.C.
Mehta.
(v) Issuance of Writ in the nature of
certiorari for quashing the Memo No. 812-00117
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dated 19.03.2025 denying full pension and illegally
justifying the provisional pension despite full
knowledge of no charge sheet and no prosecution
sanction not only on the date of retirement but till
date in the Vigilance Case No. 27/2018 dated
02.07.2018
(vi) Issuance of declaration that the General
Administration Department, Government of Bihar,
and the parent department of the Petitioner had
acted contrary to the provisions of the Bihar
Pension Rules, settled judgment of this Hon'ble
Court clarifying the rights of the pensioner under
similar circumstances and consequentially
committed breach of mandate of the State
Litigation Policy.
(vii) Issuance of Writ in the nature of
certiorari for quashing the Memo No. 812-00018
dated 30.04.2025 whereby and where under the
Appellate Authority, Planning and Development
Department rejected the appeal of the petitioner
against Memo No. 812-00117 dated 19.03.2025
observing that in light of the opinion of the
General Administration Department, Government
of Bihar wherein it has been opined that payment
of gratuity and blocked pension of the petitioner
should be made pursuant to the outcome of the
Vigilance P.S, Case no. 27/2018 dated 02.07.2018.
(viii) For any other relief/reliefs the
petitioner is found entitled to in the facts and
circumstances of the case.
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3. Learned Senior Counsel, Mr. Anand Ojha, submits
that merely on the basis of presumption of pendency of criminal
case, in which there is no charge-sheet till date has been filed,
whereas this petitioner is said to have retired on 31.01.2024,
while, the F.I.R. is said to have lodged on 02.07.2018, and 10%
of pension and pensionary benefits, including the entire gratuity
amount has been withheld, invoking the jurisdiction of Section
43(b) and 43(c) of the Bihar Pension Rules, 1950.
4. It has next been submitted that the Co-Ordinate
Bench in the case of Akhileshwar Mishra v. The State of Bihar
and Others (C.W.J.C. No.13557 of 2021), the issues have been
put at rest by holding that the authorities of the Department,
have no legal authority to withhold the 10% of the pension and
full gratuity amount by invoking the provisions of Section 43(c)
and 43(d), where, no charge-sheet is filed in the criminal case
till date of superannuation and as, such the actions of
withholding have been held to be wholly without jurisdiction
and to buttress his submissions, learned Senior Counsel for the
petitioner has referred to certain paragraphs of the judgment
rendered in the case of Akhileshwar Mishra (supra), which is
extracted hereunder :-
18. Before parting with the final outcome it
would be apt to quote explanation (a) and (b) of
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rule 43 of Rules, 1950 which reads as follows:
“Explanation:- For the purposes of the rule-
(a) departmental proceeding shall be
deemed to have been instituted when the charges
framed, against the pensioner are issued to him or,
if the Government servant has been placed under
suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to
have been instituted: -
(i) in the case of criminal proceedings,
on the date on which a complaint is made or a
charge-sheet is submitted, to a criminal court; and
(ii) in the case of civil proceedings, on
the date on which the complaint is presented, or as
the case may be, an application is made to a civil
Court.”
19. Bare reading of the aforesaid
explanation, two expressions complaint and charge
sheet have been used in order to cover all the
contingencies of judicial proceeding. Section 2(d)
of Cr.P.C. defines the complaint whereas Section
173 refer to the final report submitted by the police
after investigation. The final report connotes
conclusion of the investigation either when the
investigation culminated into finding of prima
facie, case against the accused persons or to not
sent up the accused persons for trial in case no
prima facie material is found against the accused
persons. The legislature while answering the
explanation has obviously given emphasis on a,
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prima facie case after conclusion of the
investigation. The FIR only denotes first
information with regard to some cognizable offence
which set the law into motion to investigate and
proceed in accordance with law and ensure
submission of final report after collecting material
during course of investigation which culminates in
cognizance being taken by the Magistrate.
20. It is trite that duty of judicature is to act
upon the true intention of the legislature. The
courts have, therefore, to look essentially to the
words of the statute to discern the ‘referant’ aiding
their effort as much possible by the context. The
first and primary rule of construction, as has been
observed by Gajendragadkar, J. in the case of
Kanai Lal Sur vs. Paramnidhi Sadhukhan, AIR
1957 SC 907; is that the intention of the
Legislature must be found in the words used by the
Legislature itself. The question is not what may be
supposed to have been intended but what has been
said. When the words of statute are clear, plain and
unambiguous, i.e., they are reasonably susceptible
to only one meaning, the Courts are bound to give
effect to that meaning irrespective of consequences.
21. Bare reading of explanation (b) of rule
43 of Rules, 1950 gives only one interpretation that
judicial proceeding in case of criminal proceeding
shall be deemed to have been instituted on the date
on which a complaint is made or charge sheet is
submitted to a criminal court. Admittedly, in the
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case in hand charge sheet has not been submitted.
Thus, this Court has no hesitation to hold that
withholding of 10% of pension and full gratuity by
invoking the provisions of rules 43(c) and 43(d) are
unsustainable and accordingly directs the
respondent authorities to ensure payment of 10%
of remaining pension and full gratuity, preferably
within a period of eight weeks from the date of
receipt/production of a copy of this order.
22. So far the payment of leave encashment
is concerned, this field governs by the executive
instruction bearing No.4564 dated 06.07.1993. The
notification of the State Government clearly
stipulates that the leave encashment may be
withheld till finalization of departmental enquiry or
judicial proceeding in case where there is chance
of recovery of defalcated amount after culmination
of departmental proceeding or judicial proceeding.
Thus, this Court is of the opinion that it is for the
Department to consider the claim of the petitioner
for leave encashment afresh, as to whether the
pending case involves serious allegation of
financial irregularity or defalcation, leading to
chance of recovery of any amount, and, thereupon,
pass a reasoned and speaking order within the
afore-stipulated period.
5. It has next been submitted that with regard to
delayed release of pension and pensionary benefits for no
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prudent reason, the Co-ordinate Bench has directed for payment
of interest and necessary orders have been passed directing the
authorities to pay interest @ 8% per annum from the date of
retirement till the date of actual payment and to buttress his
submissions, the learned Senior Counsel has referred to an order
dated 12.01.2021 passed in C.W.J.C. No.16454 of 2017,
Sadanand Choudhary (supra) the relevant portion of which is
extracted hereunder :-
Learned Senior Counsel appearing for the
petitioner relies on the judgment of this Court in the case
of Shyam Sunder Prasad versus State of Bihar and Ors.
reported in 2017(1)PLJR 906. paragraphs 12, 13, 14, 15,
16, 17 and 18 of the said judgment are being quoted
hereinbelow for ready reference.
"12. In State of Kerala and Others vs. M.
Padmanabhan Nair, [(1985) 1 SCC 429][:1985
PLJR (SC)17], the Supreme Court held that
pension and gratuity are no longer any bounty to
be distributed by the government to its employees
on their retirement, but have become valuable
rights and property in their hands and any
culpable delay in settlement and disbursement of
post retiral dues must be visited with the penalty of
interest at the current market rate till the date of its
actual payment.
13. Regarding delayed payment of pension
and payment of interest the Supreme Court in
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Union of India vs. Justice S.S. Sandhawalia,
[(1994)2 SCC 240][:1994(2)PLJR(SC)48] held:
"Once it is established that an amount
legally due to a party was not paid to it, the
party responsible for withholding the same
must pay interest at a rate considered
reasonable by the Court. Therefore, we do
not see any reason to interfere with the High
Court's order directing payment of interest
at 12% per annum on the balance of the
death-cum retirement gratuity which was
delayed by almost a year."
14. In S.K. Dua vs. State of Haryana and
Another held: [(2008) 3 SCC 44]
[:2008(2)PLJR(SC)128], the Supreme Court
held :-
"If there are statutory rules occupying
the field, the appellant could claim payment
of interest relying on such rules. If there are
administrative or norms instructions,
guidelines prescribed for the purpose, the
appellant may claim benefit of interest on
that basis. But even in absence of statutory
rules, administrative instructions or
guidelines, an employee can claim interest
under part III of the Constitution relying on
Articles 14, 19 and 21 of the Constitution.
The submission of the learned counsel for
the appellant, that retiral benefits are not in
the nature of "bounty" is, in our opinion,
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well founded and needs no authority in
support thereof."
15. In H. Gangahanume Gowda vs.
Karnataka Agro Industries Corpn. Ltd., [(2003) 3
SCC 40], the Supreme Court held that if there was
a delay in not releasing post retiral benefits, it was
mandatory of the court to award interest.
16. The pension or gratuity being no longer
bounty, the Supreme Court crystalised the payment
of interest for delayed payment as a normal
practice in O.P. Gupta vs. Union of India& Others,
((1987) 4 SCC 328] in the following words:
"Normally, this court, as a settled practice,
has been making direction for payment of
interest at 12 percent on delayed payment of
pension. There is no reason for us to depart
from that practice in the facts of the present
case."
17. On conclusion and upon perusal of the
legal principles and the ratio laid down by the
Supreme Court in the decisions cited hereinabove,
in the opinion of this Court since the amounts of
leave encashment, group insurance and provident
fund have been paid to the petitioner after a period
of over six years for no fault on his part, the
respondents are liable to pay interest over the
amount.
18. It is known to all that the rate of interest
on deposits has substantially been reduced since
1987. In that view of the matter, I direct the
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respondents no.4 and 7 to pay interest at the rate of
eight per cent per annum to the petitioner in
respect of belated payment of leave encashment,
group insurance and provident fund from the date
they became due till the date of their actual
payment within three months from the date of
receipt/production of a copy of this order failing
which the respondents will have to pay interest at
the rate of ten per cent with cost of rupees fifty
thousand."
In the facts of the instant case, the Court directs the
respondent nos. 2 to 7 to pay interest at the rate of 8%
per annum from the date of retirement till the date of
actual payment to the petitioner on account of late
payment of the post retiral dues under the head of
Provident Fund, pension, gratuity, leave encashment and
group insurance. The payment shall be made within a
period of 3 months from the date of receipt of a copy of
this order, failing which the respondents will also pay
cost of Rs. 25,000/- to the petitioner.
6. Learned Senior Counsel further submits that since
these issues have already been settled, which may be referred
from the judgments of Hon’ble Apex Court, relying upon which,
the Co-ordinate Bench of this Court, has passed a detailed
judgment dealing with the issues and as such, the authorities
have no reason to continue with such withholding of amount in
question detailed above and, therefore, appropriate decision may
Patna High Court CWJC No.1112 of 2026(2) dt.05-02-2026
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be directed to be taken at their end, for which, the petitioner
proposes to file a detailed representation with all supportive
materials to ventilate his grievances before the respondent No.2,
(The Principal Secretary, General Administration Department,
Government of Bihar, Patna.)
7. On the other hand, learned counsel for the State,
who has also been apprised with the judgment rendered by a
Co-ordinate Bench of this Court, is not in a position to dispute
the legal and factual position, provided the issues being raised
are found to be correct on facts by the authorities and if there is
no charge-sheet filed in the F.I.R., which is said to have been
registered against the petitioner in the year 2018, till the date of
superannuation, then necessary orders may be directed to be
passed by the authorities, as the issues dealt in the case of
Akhileshwar Mishra (supra) prima facie covers this case, if
otherwise not in dispute.
8. Considering the submission of the parties, this
Court finds it appropriate to direct Principal Secretary,
Department of Planning and Development, Government of
Bihar, to adjudicate the claim of this petitioner, on filing of
detailed representation within four weeks from today, with all
supportive materials along with a copies of the judgments
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rendered on the subjects in issue and if, upon due deliberation, it
is found that the charge-sheet in the F.I.R., till the date of
retirement has not been filed, then in terms of provisions as
provided under Bihar Pension Rules, 1950, the authorities are
required to pass appropriate order, finding the case of the
petitioner to fall within the parameters of Akhileshwar Mishra
(supra), and accordingly, the amount withheld, shall be released
to this petitioner with appropriate interest by passing a reasoned
and speaking order, in view of the direction issued by the Co-
ordinate Bench, and the entire exercise shall be concluded
within a period of eight weeks from the date of representation
and the decision so taken shall be communicated to the
petitioner and same shall also be forwarded to the Office of
Accountant General for carrying out necessary formalities in
this regard.
9. Accordingly, the writ petition stands disposed of.
(Ajit Kumar, J)
sharun/-
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