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Patna High Court

Bipin KumarversusThe State of Bihar

Decided
Disposal
DISPOSED

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

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
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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/-

U


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