JUDGMENT
Nagendra Rai, J.
1. The appeal is barred by limitation.
2. After having heard learned Counsel for the parties and taking into consideration the averments made in the limitation petition, the delay in filing this appeal is condoned.
3. This appeal is directed against the order dated 18-4-2001 passed in CWJC No. 3934 of 2001 by a learned Single Judge of this Court allowing the writ application filed by the writ petitioner respondent No. 1, herein, and directing the appellants to issue necessary sanction order for payment of remaining 10% of the amount of pension and gratuity and the full amount of G.P.F. to him and also to sanction commutation of pension within the period specified in the order failing which the concerned officer will not draw his salary till the compliance of the order passed by him and he shall be liable to pay cost of Rs. 1,000/- to respondent No. 1 from his own pocket.
4. The facts necessary for disposal of the present application are that respondent No. 1 Ganga Bishun Mahto was appointed as an Engineer Assistant on 23-12-1971. Later on he was promoted to the next higher post of Assistant Engineer and then in the year 1994 he was promoted as an Executive Engineer. He superannuated from his service on 30-10-1999.
5. There was allegation of misconduct and a decision was taken to initiate a departmental proceeding and accordingly, he was put under suspension on 19-8- 1998. Charges were framed on 31 -8-1998/6-11 -1998. The respondent No. 1 immediately moved this Court challenging his order of suspension in CWJC No. 7115 of 1998. The said writ application was disposed of on 2-9-1998 with a direction to the respondent in that writ application to conclude the departmental proceeding within a period of six months from the date of passing the order. However, the departmental proceeding was not concluded within the stipulated period. The respondent No. 1 again filed a writ application, being CWJC No. 4488 of 1999 which was disposed of on 2-8-1999. The stand taken by the State was that though the relevant papers were supplied to respondent No. 1, buthe was still insisting for supply of other papers, and because of that reason, the departmental proceeding could not be concluded. this Court having taken note of the fact that he was to superannuate in the month of October, 1999, directed the authority concerned to dispose of the departmental proceeding by the end of September, 1990. However, the departmental proceeding could not come to an end. In the meantime, the respondent No. 1 superannuated and the said proceeding after his superannuation is continuing under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules), which provides for continuance of the proceeding already pending for the purpose of withholding pension etc.
6. After retirement the respondent No. 1 was paid his all retrial dues except 10% of the amount of pension and gratuity and entire amount of G.P.F. on the plea of pendency of the proceeding under Rule 43(b) of the Rules. Thereafter, respondent No. 12 filed the aforesaid writ application which has been allowed by the learned Single Judge as stated above.
7. Before adverting to the submissions advanced at the bar it will be apt to refer to the statutory provisions which have bearing on the question.
8. It is admitted position that the provision of Rules applies in the case of respondent No. 1 Rule 139 of the Rules provides that the full pension is not to be granted as a matter of course, or unless the service rendered has been really approved. In case the service has not been found thoroughly satisfactory, the competent authority should make such reduction in the amount as it thinks proper. The State Government has also been vested with the power of revision with regard to an order of pension passed by the subordinate authority in two situations, namely, when the service of the employee was not thoroughly satisfactory or a grave misconduct has been proved on the part of the employee while in service.
9. Rule 43(b) of the Rules empowers the State Government to withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and to recover from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave is misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. The other provision of the said Rules, are not relevant for the purpose of the said case and as such the same are not referred to.
10. It came to the notice of the State Government that delay is being caused in finalisation of the pension claim of the Government servant against whom a departmental or judicial proceeding have not been concluded on the date of superannuation. Accordingly, it issued instructions or circulars from time to time. The first instruction was issued vide Finance Department Memo No. PC-11-40-28/ 74/9144 F; dated 22-8-1974 which became effective from 1st November, 1970. It provided that where any departmental or a judicial proceeding is instituted under Rule 43(b) of the Rules and the same is continuing after retirement of the employee concerned under the aforesaid provision, he shall be paid during pendency of the proceeding till final orders are passed 75% provisional pension which would have been admissible on the basis of his qualifying service up to the date of retirement. The State Government again vide F.D, Memo No. PC-11-40-98/74-11260 F, dated 31 -10-1974 clarified the matter and stated that payment of 75% of provisional pension shall be adjusted against the final retirement benefits sanctioned to such officer on conclusion of the proceedings but no recovery shall be made when the pension finally sanctioned is less than the provisional pension or pension is reduced or withheld permanently or for specified period. It has been further stated therein that grant of pension shall not prejudice the operation of Rule 139 of the Rules where final pension is sanctioned upon the conclusion of the proceeding. Inspite of issuance of the aforesaid circulares, the State Government found that the employees are facing difficulties in payment of retirement benefits and as such it issued another instruction, vide Finance Department Resolution No. 3014 dated 31st July, 1980, simplifying the procedure to grant of pension where elaborated procedure has been made for taking steps for payment of pension at the time of superannuation. Clause (7) provides inter alia that in case of Government servant against whom, no departmental or judicial proceeding has been initiated, in that case his pension is not to be withheld. However, if the proceeding is pending and there.is no chance of conclusion prior to his retirement in that case, earlier circular of 1974 will apply and the employee will be paid provisional pension which shall not be less than 90% of the pension.
11. It is well settled that terminal and pensionary benefits are the conditions of service and they are governed by the Service Rules. The Pension is neither a chairty nor bounty and nor dependent upon the sweet will of the employer, on the other hand, it is a deferred portion of compensation payable to employee for his past service. While considering the provisions of the Bihar Pension Rules, the apex Court in the case of Deokinanaan Prasadv. State of Bihar and Ors. A.I.R. 1971 Supreme Court 1409, held that right to receive pension is property under Article 31(1) and by mere executive order the State has no power to withhold the same. It is vested right in the Government servant and does not depend upon an order being passed by the authority to that effect. Right to pension flows to an employee not because of an order of payment is passed, but by virtue of rule governing grant of pension. The provisions of Rules 43(b) and 139 of the Bihar Pension Rules were considered in the cases of State of Bihar and Ors. v. Mohd. Idris Ansari , and in Paragraph 9 of the said judgment, it was held as follows:
So far as that rule is concerned, it empowers the State authorities to decide the question whether full pension should be allowed to a retired Government servant or not in the circumstances contemplated by the Rule. The first circumstance is that if the service of the concerned Government servant is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of concerned Government servant while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revisional power has to be exercised in consonance with the principles of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first time. A conjoint reading of Rule 43(b) and Rule 139 projects the following picture:
I. A retired Government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory.
II. Even if the service record of the concerned officer is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoraughly satisfactory or thai there is proof of grave misconduct of the concerned officer during his service tenure, the State Government can exercise revisional power to reduce the pension, but that revision is also subject to the rider that it should be exercised within 3 vears from the date, an order sanctioning pension, was first passed in his favour by the sanctioning authority and not beyond that period.
12. Thus, it is clear that pension can be withheld or reduced under Rule 139(b) by the competent authority if the service of a Government servant is not thoroughly satisfactory. Even if the service record of the concerned Government servant was found satisfactory by the sanctioning authority, power of revision is vested in the State Government to withhold pension, if according to it, the service is not found thoroughly satisfactory or there is proof of grave misconduct during his service tenure. Proof of misconduct has to be determined by taking recourse to the provision contained under Rule 43(b) of the Rules.
13. Learned Counsel appearing for the appellant-State submitted that the learned Single Judge has erred in holding that the instructions or circulars issued by the State Government under the provisions of the Rules providing for payment of provisional pension during continuance of the proceeding under the rules, are inconsistent with the provisions contained under Rules 139 and 43(b) of the rules and as such the same should not be given effect to. The Rules are silent with regard to payment of pensionary benefits during pendency of a departmental proceeding and as such the said circulars and instructions have not supplanted the rules, on the other hand, they are supplemental to them. In other words, the aforesaid administrative instructions have covered the field about which the rules are silent. Learned Counsel for the appellant-State further submitted that the learned Single Judge has erred in ordering for payment of commutation of pension when admitted fact was that there was no pleading in the writ petition nor any material was produced to show that any petition for commutation of pension was filed within the stipulated period.
14. Learned Counsel appearing for the writ petitioner respondent No. 1 submitted that pension of a Government servant can be withheld or reduced only if he is found guilty of misconduct in a departmental proceeding or is convicted in a judicial proceeding under Rule 43(b) of the Rules or an order is passed that the service is not thoroughly satisfactory under Rule 139 of the Rules. There is no provision under the rules to withhold any part of pension during pendency of the proceeding. He further submitted that the learned Single Judge has rightly ordered for the commutation of the pension, though he admitted that no prayer was made in the writ application for a direction to commutation of pension nor any averment has been made in the writ application that any application was filed for commutation of pension.
15. Learned Counsel for the parties also referred to decision of the apex Court and this Court in support of their respective submissions which will be referred to at the appropriate places while dealing with the submissions.
16. Learned Single Judge held that as the executive orders providing for payment of provisional pension during pendency of proceeding are in conflict with the statutory provision contained under the Rules, they are arbitrary and violative of principles of natural justice. For coming to the aforesaid provision, he has relied upon a Division Bench judgment of this Court in the case of Bajrang Deo Narain Sinha v. State of Bihar and Ors. 1999(3) PLJR 949 and his own judgment in the case of Satyendra Narain Sinha @ Dr. Satyendra Narain Sinha v. The State of Bihar and Ors. 1999(3) PLJR 939.
17. From perusal of the decision in the case of Bajrang Deo Narain Sinha (Supra), it appears that the aforesaid instructions of the years 1970, 1974 and 1980 which contained provision for payment of provisional pension during pendency of the proceeding for the purpose of withholding pension etc., were not referred to nor noticed and thus the question as to whether the provisions contained in the aforesaid executive instructions are valid or not, was not at all subject-matter of the decision in that case, and as such the said case is not an authority on the point that the aforesaid executive instruction cannot be given effect to being in conflict with the statutory provision contained under Rule 43(b) or Rule 139 of the Rules.
18. In the case of Md. Idris Ansari (Supra), the apex Court has held that two situations where the pension can be withheld or reduced as notive above. Under the Pension Rules, no provision has been made to meet the situation where a departmental or judicial proceeding is pending and no final order has been passed with regard to misconduct. A pension is to be payable when the service of a Government servant is thoroughly satisfactory. Where a proceeding is pending against a Government servant, in that case it will be difficult for the sanctioning authority to come to the conclusion that the service of a Government servant is thoroughly satisfactory during that period. As there was no provision in the rule to meet the aforesaid situation, the Government has issued the aforesaid circulars/instructions containing provision for payment of provisional pension to the Government servants during the pendency of the proceedings so that they may not suffer because of the pendency of the proceedings.
19. The question is as to whether the aforesaid instruction/circulars have supplanted the rules and thus to be ignored, or they have supplemented the rules or contains provisions with regard to pensionary matters for which the Rule is silent. In the case of Sant Ram Sharma v. State of Rajasthan , the apex Court held that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on certain point, the Government can fill up the gaps and supplement rules and issue instructions not inconsistent with the rules already framed. Again in the case of State of Orissa and Ors. v. Mamtarani Sahoo and Anr. , the question for consideration was the Orissa Education Act, 1969 and the rules known as Orissa of Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institution) Rules, 1974 framed under Section 27 of the aforesaid Act. The rules provided inter alia for constitution of the State Selection Board for appointment of Assistant Teacher etc. However, the State Government issued instruction under Section 10(2) of the Act constituting the Selection Board for each district to select teacher for recognised private high schools. The High Court held that District Selection Board cannot function unless the rules are framed to that effect. In other words, the aforesaid instruction constituting Selection Board was impermissible in law. Dealing with the aforesaid matter, the apex Court held that the Rules provides for constitution of State Selection Board, but they are silent on the question of constitution of a Selection Board at District Level and procedure for inviting application for selecting candidates by the District Selection Boards. Since the Rules are silent in this regard, administrative instructions have been issued with regard to the same. It has further held that the aforesaid administrative instructions are supplemental to the Rules. In this connection, it is apt to quote relevant part of para 11 of the said judgment:
In the case of Sant Ram Sharma v. State of Rajasthan (supra), this Court has held that till the statutory rules are framed, the Government can issue administrative instructions regarding principles to be followed in promotions of the officers concerned to the selection grade posts. It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. In the present case, the Rules provide, inter alia, for constitution of a State Selection Board. They are silent on the question of appointment of District Selection Boards and the procedure for inviting applications and selecting candidates by the District Selection Boards. Since the Rules are silent in this regard, administrative instructions have been issued confined to these aspects on which the Rules are silent. Undoubtedly, it would have been far better, had the Government amended the existing Rules to provide for these matters; but there is no ground for preventing District Selection Boards from functioning when there are administrative instructions which supplement these Rules.
20. The same view has been reiterated recently in the case of Union of India and Anr. v. Charanjit S. Gill and Ors. , wherein it has been held that the Government has power to fill up the gaps by supplementing the rules by issuing instructions if the rules are silent on the subject provided they are not inconsistent with the existing rules.
21. Thus, the settled law is that the executive instructions cannot supersede or supplant the rules, but they can fill up the gaps in the statutory rules, if the rules are silent on the matter in issue.
22. In the present case, as stated above, the pension rules are silent with regard to payment of retiral dues to the employees on superannuation against whom the proceeding is pending and it has not: come to final conclusion. To meet that situation, instructions have been issued that provisional pension has to be paid in such a situation. After the proceeding is concluded, a final decision with regard to final pension is to be taken in terms of the finding arrived at by the disciplinary authority. It was also provided inter alia that even if the pension is reduced and fixed at a level lower than the provisional pension, no recovery would be made from the concerned employee. Thus, the aforesaid provisions are for benefit of the employees and are supplemental to the rules and they are not in conflict or inconsistent with the Rules. In case of pendency of the proceeding after superannuation, the concerned authority cannot take a final decision under Rule 139 regarding the satisfactory service and in such situation there would be delay in payment of retiral dues to the superannuated employee. To meet the said situation and to mitigate the hardships to the retired employees, the said provision has been made. Accordingly, the view taken by the learned Single Judge in the case of Satyendra Narain Sinha @ Dr. Satyendra Narain Sinha (Supra), on which he has relied upon in allowing the writ application is not correct.
23. So far the direction for commutation of pension is concerned, suffice it to say that in whole of writ application, there is neither any prayer for direction of commutation of pension nor has any averment been made that an application has been filed for commutation of pension and the same has not been decided in terms of the provision contained under Chapter XII of the Rules. In absence of any pleading as well as prayer in the writ application, in my view, the learned Single Judge should not have considered and directed for commutation of pension. Accordingly, direction given by the learned Single Judge for commutation of pension is not sustainable in law. However, if the petitioner has applied for commutation of pension then his case is to be considered in accordance with the provision contained under Chapter XII as well as the instructions issued by the Government from time to time. We are not expressing any opinion with regard to said matter.
24. No provision has been brought to the notice of the Court by the learned Counsel appearing for the appellant that during pendency of the proceeding under Rules 43(b) of the Rules, the amount of G.P.F. can be withheld. Accordingly, the amount of G.P.F. of respondent No. 1 cannot be withheld by the appellant.
25. In the result, the appeal is allowed and the order of the learned Single Judge is set aside in part. Direction for payment of full amount of G.P.F. is not interfered with. However, respondent No. 1 shall be paid provisional pension till the conclusion of the proceeding, If the proceedings are concluded, then the decision with regard to final pension which includes gratuity in terms of Rule 27 of the Rules is to be taken Regarding commutation of pension as we have already said that if respondent No. 1 has applied for commutation of pension, then his case is to be considered in accordance with Chapter XII of the Pension Rules. However, if the respondent No. 1 has not applied for commutation of pension, then he may apply for the same and thereafter, the Government will take decision in accordance with law.
26. Writ petitioner-respondent No. 1 has retired in the year 1999 and about two years have elapsed. In that view of the matter, the concerned authority are directed to conclude the proceeding within six months from today and after conclusion of the proceeding take a final decision with regard to sanction of the pension and payment of other retiral benefits. If the writ petitioner-respondent No. 1 does not co-operate in the proceeding, the same is to be disposed of on the basis of materials on record.
P.N. Yadav, J.
27. I agree.