Retired employee challenged provisional pension fixed at 75% due to pending vigilance case and sought 3rd MACP benefits. Court held Rule 43(c), inserted in 2018 after his 2012 retirement, could not apply retrospectively; Rule 43(b) permitted withholding only on a finding of grave misconduct. Writ petition allowed.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2796 of 2018
Surendra Prasad ..… Petitioner
Versus
1.The State of Jharkhand. 2.The Principal Secretary, Department of Finance, Government of Jharkhand, Project Building, P.O. & P.S.Hatia, District-Ranchi. 3.The Director-cum-Joint Secretary, National Saving Directorate, Nepal House, P.O. & P.S. Doranda, DistrictRanchi.
4.The Joint Director, National Saving Directorate, Nepal House, P.O. & P.S. Doranda, District-Ranchi.
5.The Executive Officer, National Saving, Hazaribagh, P.O. & P.S. Hazaribag, District-Hazaribag
6.The Accountant General, Jharkhand, P.O. & P.S. Doranda, District-Ranchi. ..... Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioner : Mr. Rahul Kumar, Adv For the Respondents : Mr. Rupesh Singh, Adv. Mr. Munna Lal Yadav, Adv
08/Dated: 10th January, 2024
Heard learned counsel for the parties.
2. The petitioner has preferred the instant writ application for the following reliefs: -
(a) For fixation of full and final Pension in the light of the last pay drawn upon grant of the 3rd M.A.C.P. benefits and to release the same along with the following:
(b) Fixation of full and final Pension and Gratuity which the petitioner is being paid @ 75%.
(c) The arrears of difference of full and final pension and the provisional pension @ 75% being paid to the petitioner.
(d)The arrears of revision of the pension of the Petitioner in the light of the recommendation of the 7th Pay Fixation.
(e) Medical Allowance from 31.08.2012 @ Rs.300/per month. All the aforesaid amounts along with statutory and penal interest to be calculated from the date of retirement of the Petitioner i.e. 31.08.2012 till the date of actual payment
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The petitioner further prays for quashing of letter No. 39 dated 30.01.2013 (Annexure 3); whereby the pension of the petitioner has been fixed provisionally @ 75% of the Pension on the ground of pendency of a criminal proceeding before the Special Judge, Vigilance.
3. Facts of the case as disclosed in the instant writ petition is that the Petitioner was appointed as Typist under the National Saving Directorate on 13.03.1975. When the petitioner completed 30 years of service, in terms of the Resolution of the Finance Department he became eligible for a grant of the benefits under the 3rd MACP w.e.f. 01.09.2008.
The case of the petitioner is that on such date, there had been no departmental proceeding or criminal charge pending against the petitioner.
However, on 26.02.2010, a Vigilance Case No. 07/2010 was registered against the petitioner which is pending before learned Special Judge, Ranchi and on that basis, he was put under suspension. The petitioner retired on 30.08.2012 and on 30.01.2013, an order of withholding 25% of the pension was passed on grounds of pendency of the Criminal case.
4. Learned counsel for the petitioner submits that the petitioner has completed 30 years of service and is eligible for grant of 3rd MACP. The action of respondents in denying the benefits of MACP to the petitioner is arbitrary, illegal and unsustainable.
He further submits that the criminal proceeding as against the petitioner is pending trial and no order under Rule 43(b) or 139 of the Jharkhand Pension Rules has been passed to withhold the Pension of the petitioner. Hence, the petitioner is entitled to a full and final pension.
Learned counsel further submits that on the day of
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consideration for the grant of MACP benefits, there had been no legal disability in terms of a criminal charge or departmental proceeding pending thereby the petitioner is entitled to the benefits of MACP w.e.f. 01.09.2008.
5. Learned counsel for the respondents submits that admittedly; there was no rule in the Jharkhand Pension Rule to withhold the retiral benefits on the pendency of criminal case but the Government of Jharkhand, Planning cum Financial Department has amended the rules of Jharkhand Pension Rule, 2000 and inserted sub-rule (c) in Rule 43 which empowers the Government to withhold the pension, if any departmental proceeding is instituted or continued against an officer/employee who has retired.
He further submits that as per the scheme of MACP the case of employee is considered for grant of MACP only if the employee fulfills all the required criteria for the grant of regular promotion; however, in the instant case, admittedly there is a vigilance case bearing vigilance case No.7 of 2010 is pending against the petitioner and charge sheet has also been filed, hence the case of petitioner for grant of MACP cannot be considered.
He further submits that the date of sanction of pension would be treated to be relevant date and since herein the pension has been sanctioned to be paid in favour of the writ petitioner only after coming into effect of the provision of Rule 43(c) of Jharkhand Pension Rule by way of amendment in the principal statute so Rule 43(c) will be applicable in the case of the petitioner. 6. Having heard learned counsel for the parties and after going through the respective affidavits and documents annexed therein it appears that Rule 43(c) of Jharkhand Pension Rule, 2000 came into effect on 07.08.2018 and the petitioner retired much before, that is on 31.08.2012, as such any provision which has subsequently been
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incorporated in the act cannot have any retrospective effect and the amended rule cannot be made applicable in this case. Reference may be made to the decision rendered in the case of State of Jharkhand V. Laljit Prasad Sinha reported in 2020 SCC OnLine Jhar 1624 decided by the division bench of this court. Relevant paragraphs are quoted hereinbelow;
"21. It is settled position of law that any statute, if not has expressly been referred to be applicable with retrospective effect, cannot be made applicable with retrospective effect.
22. Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited reported in (2015) 1 SCC 1, in particular paragraphs 29, 30 and 31, which are quoted as hereunder:—
“29. The obvious basis of the principle against retrospectivity is the principle of “fairness”, which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., [[1994] 1 A.C. 486 : [1994] 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later.
30. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators' object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Govt. of India v. Indian Tobacco Assn., [(2005) 7 SCC 396], the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in Vijay v. State of Maharashtra, [(2006) 6 SCC 289]. It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are (sic not) confronted with any such situation here.
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31. In such cases, retrospectivity is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. In the instant case, the proviso added to Section 113 of the Act is not beneficial to the assessee. On the contrary, it is a provision which is onerous to the assessee. Therefore, in a case like this, we have to proceed with the normal rule of presumption against retrospective operation. Thus, the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by outweighing factors.”
23. We have gone across the provisions of amended Rule by which the Rule 43(c) has been inserted under the principal statute and found therefrom that the provision of Rule 43(c) in the Jharkhand Pension Rules, 2000 has been inserted in exercise of power conferred by the Proviso to the Article 309 of the Constitution of India.
24. For ready reference, the Rule 43(c) of the Jharkhand Pension Rules, 2000 is quoted hereunder as:—
“43(c) Where any departmental or judicial proceeding is instituted or continued against an officer/employee who has retired on attaining the age of compulsory retirement or otherwise, he. shall be sanctioned by the Government which instituted such proceeding, during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cumretirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon.”
25. It is evident from the aforesaid amendment that there is no stipulation for its retrospective application. As such, the same will have its prospective application."
7. Now coming to the issue of relevant date regarding sanction of pension, for release of pension the date of sanction can never be taken as material date but it is the date of retirement which shall be taken as relevant date by the competent authority for releasing of post retiral benefits. Further the issue of material date of consideration for release of pension has also been dealt by this Court in the same case of Laljeet Prasad Sinha (supra). The relevant paragraphs are quoted herein below;
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"28. But we, on careful consideration of the aforesaid submission, are of the view that the date of sanction of the pension by the competent authority can never be a determining factor rather the relevant date would be the date of retirement. Even accepting that the relevant documents were not submitted by the writ petitioner, as has been urged by appellant-State, that is not going to make any difference with respect to the cut-off date for making the inserted Rule of 43(c) in the principal statute applicable since the writ petitioner has already retired prior to coming of the aforesaid provision. The date when the government employee retires from service, the relationship of employer and employee ceases to exist. Therefore, whatever claim by way of post retiral benefit is to be paid to the retired employees that will be on the basis of date of retirement. As such the contention as has been agitated by learned counsel for the appellants is not of worth consideration and is accordingly rejected.
29. Since it has been provided under Rule 43(C) for disbursement of provisional pension which will be sanctioned to such employee to be paid pension provisionally during the period from the date of retirement till the date of conclusion of the proceeding, as such the date of retirement is the material date for consideration for disbursement of pension. "
8. Now coming to the issue regarding the benefits of 3 M.A.C.P; it appears that when the petitioner completed 30 years of service, in terms of the Resolution of the Finance Department as contained in Memo No. 2981 dated 01.09 2009, he became eligible for grant of the benefits under the 3rd MACP w.e.f. 01.09.2008 so it appears that on due date i.e., on 01.09.2008, there was no criminal case or departmental charge pending against the petitioner and in absence of any legal disability, I hold that the Petitioner is entitled for the benefits of 3 MACP w.e.f. 01.09. 2008.
9. In the instant case, admittedly, the impugned Order dated 30.01.2013 was passed whereby the pension of the petitioner has been fixed provisionally @ 75% of the Pension on the ground of pendency of judicial proceeding. At this stage, it is relevant to indicate that on the date of retirement Rule 43(b) was the existing law and not Rule 43(c).
Further, Rule 43 (b) does not contemplate the power to withhold the pension of any employee during the pendency of judicial proceeding or departmental
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proceeding. It contemplates such power only when the petitioner has been found guilty of grave misconduct in those proceeding. Therefore, Rule 43(b) would also not apply in the case of petitioner.
10. The question as to whether the mere pendency of departmental or judicial proceeding would empower the Government to withhold pension came up before this court in Dr. Dudh Nath Panday V. State of Jharkhand reported in 2007 SCC OnLine Jhar 487 , relevant paras of which is being quoted below-
"17. The question is this "Whether the mere pendency of departmental or judicial proceeding would empower the Government to withhold pension. gratuity, leave encashment under Rule 43(b)?"
19. The various guidelines which have been given by the decisions, referred to above, are as follows:
(i) The conditions precedent for imposing penalty of withholding pension is that there should be a finding in departmental enquiry or judicial proceeding that the pensioner committed grave misconduct in the discharge of his duty while in office (ii) Before the power under Rule 43(b) can be exercised in connection with alleged misconduct of the retired Government Servant, it must be shown that in departmental proceeding or judicial proceeding the concerned Government servant has been found guilty of grave misconduct
(iii) Unless the pensioner is found guilty of misconduct in departmental or judicial proceeding any part of his pension cannot be withheld
(iv) The employee's right to pension is a statutory right. The measure of deprivation of his pension must be commensurate with the gravity of misconduct as it offends the right to assistance as framed under Article 41 of the Constitution
(v) The pensionary dues payable to the employees including gratuity which is also pension within the meaning of Bihar Pension Rules cannot bewithheld. Similarly,leave encashment cannot also be withheld since that is paid in lieu of unutilized leave as it partakes the character of salary
(vi) The power under Rule 43(b) cannot be exercised before the pensioner is found in departmental or judicial proceeding guilty of grave misconduct.
(vii) The bare reading of the Rule 43(a) of the Bihar Pension Rules would make it evident that the power to withhold or withdraw pension is permissible only when the pensioner is found to be guilty of grave misconduct and not that during the pendency of such proceedings.
20. In the light of the above guidelines, we will now look into the present facts of this case. In this matter, admittedly, the impugned Order dated, 6th June, 2003 has been passed
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withholding pension, gratuity and the leave encashment on the ground of pendency of judicial proceedings. It is not in dispute that the said judicial proceeding has not been concluded. Similarly it cannot be denied that there is no finding or any conviction holding the Pensioner-Appellant guilty of grave misconduct in the above process.
21. As indicated above, that Rule 43(b) does not contemplate the power to withhold the pension etc during the pendency of judicial proceeding or departmental proceeding. It contemplates such power only when that pensioner has been found guilty of grave misconduct in those proceeding Therefore, Rule 43(b) would not apply in the instant case.
22 It is also to be noticed that Rule 43(b) is relating to withholding of the pension or any part of it. Leave encashment is not covered under Rule 43(b) As such, there is no power given to the State Government to withhold the leave encashment under Rule 43(b) either during the pendency of the proceeding or after conclusion of the proceedings.
23. Therefore, we are to hold while answering the first question that the Government has no power to withhold pension or gratuity on the ground of pendency of judicial or departmental proceedings and there is no power at all for the State Government to withhold the leave encashment under Rule 43(b) at any stage. "
11. Having regard to the aforesaid discussions and the judicial pronouncements; this Court is of the considered view that the writ petitioner is entitled to get the benefit of 3rd MACP benefits along with full Pension and gratuity.
Accordingly, the impugned Order/Letter dated 30.10.2013 is quashed and set aside. The respondents are directed to release the balance Gratuity and Pension amount along with consequential arrears arising from the revision of the Last Pay Scale of the Petitioner.
It goes without saying that any amount which will accrue after the calculation, shall be paid to the petitioner within a period of eight weeks from the date of receipt/production of a copy of this order.
12. As a result, the writ petition stands allowed. Pending I.A., if any, also stands disposed of.
(Deepak Roshan, J.)
Amardeep/
2 issues framed by the court
Whether pension could be withheld at 75% on ground of pendency of criminal proceedings when the retiree retired before insertion of Rule 43(c)?
Whether the petitioner was entitled to 3rd MACP benefits from 01.09.2008 absent any pending proceeding on that date?
Colour shows how this judgement treated each authority
State of Jharkhand V. Laljit Prasad SinhaRelied on¶6
2020 SCC OnLine Jhar 1624 · Who else cites this
Dr. Dudh Nath Panday V. State of JharkhandRelied on¶10
2007 SCC OnLine Jhar 487 · Who else cites this
2 provisions across 1 enactments
Surendra Prasad
The State of Jharkhand
The Principal Secretary, Department of Finance, Government of Jharkhand
The Director-cum-Joint Secretary, National Saving Directorate
The Joint Director, National Saving Directorate
The Executive Officer, National Saving, Hazaribagh
Deepak Roshan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court