1  

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

Civil Appeal No.1677-1678 of 2020  

     (Arising out of SLP (C)Nos.4722-4723/2020 @ D.No.37355/2017)  

DR. HIRA LAL                   …APPELLANT(S)  

Versus  

STATE OF BIHAR & ORS.         …RESPONDENT(S)    

J U D G M E N T  

INDU MALHOTRA, J.  

       Delay condoned. Leave granted.  

1. The short issue which arises for consideration is whether  

the State of Bihar was justified in withholding 10% pension and  

full gratuity of the Appellant under Circulars dated 22.08.1974  

and 31.10.194, and Government Resolution dated 31.07.1980,  

on the ground of pending criminal proceedings?  

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2. The Appellant was appointed to the post of Touring  

Veterinary Officer (TVO) at Pawana, Bihar by the Respondent-

State. While the Appellant was in active service, he was made  

an accused in the Fodder Scam lodged by the CBI in RC Case  

No.48A/1996 wherein a Charge-Sheet was filed against him on  

21.11.2003. The Special Judge, CBI, Animal Husbandry took  

cognizance in the criminal case. The Appellant was placed  

under suspension on 31.05.2002 under Rule 49(a) of the Civil  

Services (Classification, Control & Appeal) Rules, 1930, which  

were in force prior to the enforcement of the Bihar Government  

Servant (Classification, Control & Appeal) Rules, 2005. The  

Appellant continued to remain under suspension till he  

attained the age of superannuation on 31.03.2008.   

3. On attaining the age of superannuation, the State  

Government vide Order dated 17.09.2008 sanctioned payment  

of 90% of the provisional pension of the Appellant, and  

withheld 10% of the pension, entire gratuity, leave encashment  

and GPF on account of pending criminal proceedings.  

4. Aggrieved by the action of withholding 10% pension and  

other retiral benefits, the Appellant filed a Writ Petition before  

the Patna High Court praying for a writ of mandamus directing

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the Respondents to pay full pension, gratuity, leave  

encashment, and General Provident Fund along with interest.   

5. The Appellant inter alia contended that the Bihar Pension  

Rules,1950 do not prohibit payment of full pension and  

gratuity to a retired Government servant against whom  

criminal proceedings were pending. Rule 43(b) of the Bihar  

Pension Rules is not applicable, until the delinquent employee  

is found to be guilty of grave misconduct in a departmental or  

judicial proceedings or to have caused pecuniary loss to the  

Government by misconduct or negligence. Consequently, Rule  

43(b) would not be applicable during the pendency of criminal  

proceedings. Reliance was placed on the judgment of this Court  

in State of Jharkhand and Ors. vs. Jitendra Kumar Srivastava  

and Ors.1, wherein it has been that Rule 43(b) does not permit  

withholding of pension and gratuity when departmental or  

judicial proceedings are still pending.  It was further contended  

the Government Resolution dated 31.07.1980, being an  

executive instruction had no force of law, and could not take  

away the right to receive pension, which is recognised as a  

constitutional right under Article 300A of the Constitution.  

 1 (2013) 12 SCC 210

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6. The State of Bihar filed its Counter-Affidavit stating that a  

sum of Rs.12,78,711/- towards G.P.F and Rs.1,35,256/-  

towards leave encashment had since been paid to the Appellant  

on 15.01.2009 and 03.02.2009 respectively. The State justified  

its stand on the basis of Circulars dated 22.08.1974 and  

31.10.1974 issued by the Finance Department read with  

Government Resolution dated 31.07.1980, which lays down  

that if a government servant retires while under suspension, he  

will not be entitled to payment of full pension and gratuity, and  

at best, would be entitled to payment of 90% of the provisional  

pension till the conclusion of the departmental or judicial  

proceedings. It further provided that no gratuity or death-cum-

retirement gratuity would be payable until the conclusion of the  

said proceedings, and the issuance of final orders thereon.  

7. The issue which remained for consideration was with  

respect to withholding payment of 10% of the pension and full  

amount of gratuity.   

8. The learned Single Judge of the High Court dismissed the  

Writ Petition vide Judgment & Order dated 23.01.2013 holding  

that the claim of full pension and gratuity until conclusion of  

the criminal proceedings was untenable both on facts, and in

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law. Since the order of Suspension dated 31.05.2002 was not  

revoked at any point of time till the Appellant attained the age  

of superannuation, the criminal proceedings would be deemed  

to be continuing during this entire period as per Rule 43(b) of  

the Bihar Pension Rules. As per the Government Circulars  

dated 22.8.1974 and 31.10.1974, and Government Resolution  

dated 31.7.1980, a conscious decision was taken by the State  

Government for temporarily withholding 10% of pension and  

full amount of gratuity till conclusion of the departmental or  

judicial proceedings.   

9. Aggrieved by the Order of the Single Judge, the Appellant  

preferred an LPA, which was dismissed by a division bench of  

the High Court vide impugned Judgment & Order dated  

21.03.2017. The division bench followed the judgment in Vijay  

Kumar Mishra v. State of Bihar2 on the interpretation of Rules  

43(b) and (c) of the Bihar Pension Rules, and dismissed the  

LPA. The division bench held that the Appellant would be  

required to await the outcome of the pending criminal case,  

before he becomes entitled to payment of 10% pension and full  

amount of gratuity, which had been withheld.   

 2 2017 (1) PLJR 575

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The Review Petition preferred by the Appellant was  

dismissed as not pressed vide Order dated 23.08.2017.   

10.  Aggrieved by the judgment of the High Court, the  

Appellant has filed the present SLP before this Court.   

We have heard learned counsel for the parties, and have  

considered the submissions made on their behalf.  

11. Relevant Statutory Provisions  

11.1 The Bihar Pension Rules, 1950 were enacted under  

Section 241(2)(b) of the Government of India Act, 1935,  

and came into force on 20th January, 1950.   

  Rules 27 and 43 (a) and (b) are set out hereunder:-  

“27. Pension includes a gratuity.”  

“43 (a) Future good conduct is an implied condition of  

every grant of pension. The Provincial Government reserve to  

themselves the right of withholding or withdrawing a pension  

or any part of it, if the pensioner is convicted of serious crime  

or be guilty of grave misconduct. The decision of the  

Provincial Government on any question of withholding or  

withdrawing the whole or any part of a pension under this  

rule, shall be final and conclusive.  

(b) The State Government further reserve to themselves the  

right of withholding or withdrawing a pension or any part of  

it, whether permanently or for a specified period, and the  

right of ordering the recovery 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 misconduct; or to have caused  

pecuniary loss to Government by misconduct or negligence,  

during his service including service rendered on re-

employment after retirement:  

        [emphasis supplied]

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11.2  A reading of Rule 43(b) would indicate that the State  

Government was empowered to withhold or withdraw the  

whole or part of the amount of pension, permanently or  

for a specified period, if the pensioner was “found to be  

guilty of grave misconduct” in any departmental or  

judicial proceeding, or to have “caused pecuniary loss to  

Government by misconduct or negligence”, during the  

tenure of his service.    

12. Circulars and Resolutions  

12.1 Rule 43(b) did not cover a situation where judicial or  

departmental proceedings were pending.   

The Respondent-State had issued two Circulars on  

22.08.1974 and 31.10.1974, under which a provision  

was made to pay 75% pension to an employee, who  

was facing a departmental or judicial proceeding at the  

time of retirement. The Circulars provided that no  

gratuity or death-cum retiral gratuity would be paid  

during the pendency of the proceedings.    

12.2 The Circular dated 22.08.1974 issued by the Finance  

Department of the Government of Bihar reads as follows:  

   “Subject-Payment of pension to Government servants  

who are under suspension or against whom departmental or

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judicial proceedings or enquiries have not been concluded  

on the date of compulsory retirement.  

The question of sanctioning pension to Government  

servants who are under suspension or against whom  

departmental or judicial proceedings or enquiries have not  

been concluded on the date of compulsory retirement has  

been under active consideration of Government.  

2. The State Government have been pleased to decide  

that (i) where any departmental or judicial proceeding is  

instituted under rule 43(b) of Bihar Pension Rules a  

Government servant or where a departmental proceeding is  

continued against an officer who have retired on attaining  

the age of compulsory retirement, or otherwise, he shall be  

paid during the period commencing from the date of his  

retirement to the date on which, upon conclusion of such  

proceedings, final orders are passed 75% provisional  

pension of the 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-cum-retirement gratuity shall be paid to him until the  

conclusion of such proceeding and the issue of final orders  

thereon.  

(ii) Payment of provisional pension may under the above  

provision shall be adjusted against the final retirement  

benefits sanctioned to such officer upon conclusion of the  

aforesaid proceedings but no recovery shall be made where  

the pension finally sanctioned is less than the provisional or  

the pension is reduced or withheld either permanently or for  

a specified period.  

3. The grant of pension under the aforesaid provision  

shall not prejudice the operation of rule 139 of Bihar  

Pension Rules where final pension is sanctioned upon the  

conclusion of the proceedings.  

4. These orders will be effective from the 1st November,  

1970. All pending cases will be decided accordingly. (Vide  

F.D. Memo No. PC-11-40-28/74/9144F, dated 22.8.1974.).”  

      [emphasis supplied]

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12.3 Subsequently, a clarificatory Circular was issued on  

31.10.1974 which reiterated that provisional pension up  

to only 75% shall be paid till the conclusion of judicial or  

departmental proceedings.   

 The Circular dated 31.10.1974 reads as follows:  

“Subject-Payment of pension to Government  

servants who are under suspension or against whom  

departmental or judicial proceedings or enquiries have  

not been concluded on the date of compulsory retirement.  

In Finance Department's letter No. PC-11-

40.28/74/9144F, dated 22.8.1974; which provided that a  

Government servant who has retired and against whom,  

any departmental or judicial proceedings are instituted or  

are continued shall be paid provisional pension to the  

extent of 75% of the admissible pension. The payment of  

provisional pension under the aforesaid orders is  

mandatory. But some administrative authorities appear  

to be under the impression that in cases where the  

departmental proceedings instituted against a  

Government servant were for major penalty and in which  

ultimately no pension might become payable on the  

conclusion of the proceedings after his retirement under  

rule 43 of Bihar Pension Rules, even the provision need  

not be sanctioned. This view is against the letter and  

spirit of the said rules. All Heads of departments etc. are  

therefore requested to bring to the notice of pension  

sanctioning authorities under them the correct position of  

the rules as well as the intention of the State Government  

so that the payment of 75% provisional pension is not  

denied to the retired Government servants. (Vide F.D.  

Memo No. PC-11-40-98/74-11260 F, dated 31.10.1974).”  

      [emphasis supplied]  

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12.4 The State Government issued Government  

Resolution No. 3014 on 31.07.1980, which reads as  

follows:  

“7. To withhold or withdraw pension-  

(a) The decision contained in Clause-6 shall not affect  

Rule-43 of Bihar Pension Rules under which power is vested  

to withhold or withdraw pension.  

(b) If any kind of departmental proceedings, criminal  

case, judicial enquiry etc. has not been initiated against any  

government servant till the date of his retirement then in  

that situation, the Pension Sanctioning Authority shall not  

be empowered to withhold pension under any  

circumstances. Rule-43 of Bihar Pension Rules is a  

Statutory Rule. Hence, the provisions contrary to it by  

different departments and circulars in respect of obtaining  

clearance certificate from Vigilance Department shall be  

deemed to be cancelled automatically.  

(c) Where the final disposal of departmental or judicial  

proceeding initiated during the service period of any  

government servant is not possible till the date of his/her  

retirement, then action to sanction provisional pension  

under provisions of Circular No. 9144/f, dated 22-8-1974  

and 11260F, dated 31-10-1974 of the Finance Department  

be initiated so that that the government servant going to  

retire may not face any difficulty. Provisions contained in  

Clause 8(c) below shall not apply in matters of this category.  

In the cases of this category, the amount of provisional  

pension, as per rule, shall be less than the maximum  

amount of pension admissible, but it shall not be less than  

90 per cent in any circumstance.”  

         [emphasis supplied]  

The Government Resolution No. 3104 dated  

31.07.1980, provided that where departmental or judicial  

proceedings were initiated during the service period of a

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Government servant, and were not concluded or finally  

disposed of till the date of retirement, then provisional  

pension under Circulars dated 22.08.1974 and 31.10.1974  

would be paid. The amount of provisional pension was  

however increased from 75% to 90% of the maximum  

amount of pension admissible.  

13.1 In our considered view, the Circulars dated  

22.08.1974 and 31.10.1974, and Government Resolution  

No. 3104 dated 31.07.1980, were merely administrative  

instructions/executive orders. They were not issued in  

exercise of the power under Article 309 of the  

Constitution and cannot be said to have the force of law.  

The Government Resolution dated 31.07.1980 came  

up for consideration before this Court in State of  

Jharkhand and Ors. vs. Jitendra Kumar Srivastava and  

Ors.3. After considering Rule 43(b) of the Bihar Pension  

Rules and Government Resolution No. 3104 dated  

31.07.1980, this Court held that the State had no  

authority or power to withhold the full amount of pension  

or gratuity of a Government servant during the pendency  

 3 (2013) 12 SCC 210

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of judicial or departmental proceedings. This Court held  

that:  

“9. Having explained the legal position, let us first discuss the rules  

relating to release of Pension. The present case is admittedly governed  

by the Bihar Pension Rules, as applicable to the State of Jharkhand.  

Rule 43(b) of the said Pension Rules confers power on the State  

Government to withhold or withdraw a pension or part thereof under  

certain circumstances. This Rule 43(b) reads as under:  

…..  

From the reading of the aforesaid Rule 43(b), following position  

emerges:  

(i) The State Government has the power to withhold or withdraw  

pension or any part of it when the pensioner is found to be guilty of  

grave misconduct either in a departmental proceeding or judicial  

proceeding.  

(ii) This provision does not empower the State to invoke the said  

power while the department proceeding or judicial proceeding are  

pending.  

(iii) The power of withholding leave encashment is not provided under  

this rule to the State irrespective of the result of the above  

proceedings.  

(iv) This power can be invoked only when the proceedings are  

concluded finding guilty and not before.  

…..  

11. Reading of Rule 43(b) makes 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.  

14. …..A person cannot be deprived of this pension without the  

authority of law, which is the Constitutional mandate enshrined in  

Article 300A of the Constitution. It follows that attempt of the

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Appellant to take away a part of pension or gratuity or even leave  

encashment without any statutory provision and under the umbrage of  

administrative instruction cannot be countenanced.  

15. It hardly needs to be emphasized that the executive instructions are  

not having statutory character and, therefore, cannot be termed as  

"law" within the meaning of aforesaid Article 300A. On the basis of  

such a circular, which is not having force of law, the Appellant cannot  

withhold-even a part of pension or gratuity. As we noticed above, so  

far as statutory rules are concerned, there is no provision for  

withholding pension or gratuity in the given situation. Had there been  

any such provision in these rules, the position would have been  

different.”  

                                                    [emphasis supplied]  

It was held that pension is ‘property’ within the  

meaning of Article 300A of the Constitution, and executive  

instructions which do not have any statutory sanction  

cannot be termed as "law" within the meaning of Article  

300A. It was further held that in the absence of statutory  

rules permitting withholding of pension or gratuity, the  

State could not do so by way of executive instructions. It  

was observed that “So far as statutory rules are concerned,  

there is no provision for withholding pension or gratuity in  

the given situation. Had there been any such provision in  

these rules, the position would have been different”.  

13.2 The position has however changed with the  

amendment to the Bihar Pension Rules on 19.07.2012 by  

the Governor of Bihar in exercise of the powers under

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Article 309 of the Constitution, whereby Clause (c) has  

been inserted in Rule 43, which reads as follows:  

“(c) Where the departmental proceeding or judicial  proceeding, in which the prosecution has been sanctioned  against such servant, initiated during the service period of the  government servant, is not concluded till the retirement of the  government servant, the amount of provisional pension shall be  less than the maximum admissible amount of pension but shall  

in no case be less than 90% (ninety percent).”   

 13.3 Rule 43 (c) provides that where a departmental  

proceeding or judicial proceeding is initiated during the  

service period of a Government servant, and prosecution  

had been sanctioned but not concluded till  

superannuation, the provisional pension payable shall be  

less than the maximum admissible amount, but shall in  

no case be less than 90%.  

13.4 It is well settled that the right to pension cannot be  

taken away by a mere executive fiat or administrative  

instruction. Pension and gratuity are not mere bounties,  

or given out of generosity by the employer. An employee  

earns these benefits by virtue of his long, continuous,  

faithful and un-blemished service.4 The right to receive  

pension of a public servant has been held to be covered  

under the “right to property” under Article 31(1) of the  

 4 (2013) 12 SCC 210

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Constitution by a Constitution bench of this Court in  

Deokinandan Prasad v. State of Bihar5, which ruled that:  

“ 30. The question whether the pension granted to a public servant is  

property attracting Article 31(1) came up for consideration before the  

Punjab High Court in Bhagwant Singh v. Union of India [AIR 1962  

Punj 503] . It was held that such a right constitutes “property” and  

any interference will be a breach of Article 31(1) of the Constitution.  

It was further held that the State cannot by an executive order curtail  

or abolish altogether the right of the public servant to receive pension.  

This decision was given by a learned Single Judge. This decision was  

taken up in letters patent appeal by the Union of India. Letters Patent  

Bench in its decision in Union of India v. Bhagwant Singh [ILR 1965  

Punj 1] approved the decision of the learned Single Judge. The Letters  

Patent Bench held that the pension granted to a public servant on his  

retirement is “property” within the meaning of Article 31(1) of the  

Constitution and he could be deprived of the same only by an  

authority of law and that pension does not cease to be property on the  

mere denial or cancellation of it. It was further held that the character  

of pension as “property” cannot possibly undergo such mutation at  

the whim of a particular person or authority.  

31. The matter again came up before a Full Bench of the Punjab  

and Haryana High Court in K.R. Erry v. State of Punjab [ILR  

1967 Punj & Har 278] . The High Court had to consider the  

nature of the right of an officer to get pension. The majority  

quoted with approval the principles laid down in the two earlier  

decisions of the same High Court, referred to above, and held  

that the pension is not to be treated as a bounty payable on the  

sweet will and pleasure of the Government and that the right to  

superannuation pension including its amount is a valuable right  

vesting in a government servant. It was further held by the  

majority that even though an opportunity had already been  

afforded to the officer on an earlier occasion for showing cause  

against the imposition of penalty for lapse or misconduct on his  

part and he has been found guilty, nevertheless, when a cut is  

sought to be imposed in the quantum of pension payable to an  

officer on the basis of misconduct already proved against him, a  

further opportunity to show-cause in that regard must be given  

to the officer. This view regarding the giving of further  

 5 (1971) 2 SCC 330

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opportunity was expressed by the learned Judges on the basis of  

the relevant Punjab Civil Service Rules. But the learned Chief  

Justice in his dissenting judgment was not prepared to agree  

with the majority that under such circumstances a further  

opportunity should be given to an officer when a reduction in the  

amount of pension payable is made by the State. It is not  

necessary for us in the case on hand to consider the question  

whether before taking action by way of reducing or denying the  

pension on the basis of disciplinary action already taken, a  

further notice to show-cause should be given to an officer. That  

question does not arise for consideration before us. Nor are we  

concerned with the further question regarding the procedure, if  

any, to be adopted by the authorities before reducing or  

withholding the pension for the first time after the retirement of  

an officer. Hence we express no opinion regarding the views  

expressed by the majority and the minority Judges in the above  

Punjab High Court decision on this aspect. But we agree with  

the view of the majority when it has approved its earlier decision  

that pension is not a bounty payable on the sweet will and  

pleasure of the Government and that, on the other hand, the  

right to pension is a valuable right vesting in a government  

servant.  

33. Having due regard to the above decisions, we are of the  

opinion that the right of the petitioner to receive pension is  

property under Article 31(1) and by a mere executive order the  

State had no power to withhold the same. Similarly, the said  

claim is also property under Article 19(1)(f) and it is not saved  

by sub-article (5) of Article 19. Therefore, it follows that the  

order, dated June 12, 1968, denying the petitioner right to  

receive pension affects the fundamental right of the petitioner  

under Articles 19(1)(f) and 31(1) of the Constitution, and as such  

the writ petition under Article 32 is maintainable...”  

                                          [emphasis supplied]

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13.5  The aforesaid judgment was followed in D.S. Nakara  

and Ors. v. Union of India6  by another Constitution  

bench of this Court, which held that:  

“20. The antiquated notion of pension being a bounty, a  

gratuitous payment depending upon the sweet will or grace of  

the employer not claimable as a right and, therefore, no right to  

pension can be enforced through Court has been swept under the  

carpet by the decision of the Constitution Bench in Deoki  

Nandan Prasad v. State of Bihar and Ors7.: wherein this Court  

authoritatively ruled that pension is a right and the payment of it  

does not depend upon the discretion of the Government but is  

governed by the rules and a Government servant coming within  

those rules is entitled to claim pension. It was further held that  

the grant of pension does not depend upon any one's discretion.  

It is only for the purpose of quantifying the amount having  

regard to service and other allied maters that it may be  

necessary for the authority to pass an order to that effect but the  

right to receive pension flows to the officer not because of any  

such order but by virtue of the rules. This view was reaffirmed in  

State of Punjab and Anr. v. Iqbal Singh.8  

29. Summing up it can be said with confidence that pension is  

not only compensation for loyal service rendered in the past, but  

pension also has a broader significance, in that it is a measure  

of socio-economic justice which inheres economic security in the  

fall of life when physical and mental prowess is ebbing  

corresponding to aging process and, therefore, one is required  

to fall back on savings. One such saving in kind is when you give  

your best in the hey-day of life to your employer, in days of  

invalidity, economic security by way of periodical payment is  

assured. The term has been judicially defined as a stated  

allowance or stipend made in consideration of past service or a  

surrender of rights or emoluments to one retired from service.  

Thus the pension payable to a government employee is earned by  

rendering long and efficient service and therefore can be said to  

 6 (1983) 1 SCC 305  7  (1971) Supp. S.C.R. 634  8 (1976) II LLJ 377 SC

18  

be a deferred portion of the compensation or for service  

rendered. In one sentence one can say that the most practical  

raison d'etre for pension is the inability to provide for oneself  

due to old age. One may live and avoid unemployment but not  

senility and penury if there is nothing to fall back upon.  

31. From the discussion three things emerge: (i) that pension is  

neither a bounty nor a matter of grace depending upon the sweet  

will of the employer and that it creates a vested right subject to  

1972 Rules which are statutory in character because they are  

enacted in exercise of powers conferred by the proviso to Article  

309 and clause (5) of Article 148 of the Constitution; (ii) that the  

pension is not an ex gratia payment but it is a payment for the  

past service rendered; and (iii) it is a social welfare measure  

rendering socio-economic justice to those who in the hey-day of  

their life ceaselessly toiled for the employer on an assurance that  

in their old age they would not be left in lurch..”  

                                                           [emphasis supplied]  

13.6 The right to receive pension has been held to be a  

right to property protected under Article 300A of the  

Constitution even after the repeal of Article 31(1) by the  

Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f.  

20.06.1979, as held in State of West Bengal v. Haresh C.  

Banerjee and Ors.9.    

13.7 The Division Bench of the Patna High Court in the  

impugned judgment has relied solely on the earlier  

decision of a co-ordinate bench of the Patna High Court  

in Vijay Kumar Mishra v. State of Bihar10 to deny the  

 9 (2006) 7 SCC 651  10 2017 (1) PLJR 575

19  

reliefs sought by the Appellant. Pertinently, the judgment  

in Vijay Kumar Mishra was overruled by a Full Bench of  

the Patna High Court in Arvind Kumar Singh v. State of  

Bihar & Ors. etc. etc.11.   

14. In view of the above, we hold that the Respondent-State  

was unjustified in withholding 10% pension of the Appellant  

under administrative Circulars dated 22.08.1974 and  

31.10.1974, and Government Resolution No. 3104 dated  

31.07.1980 after the Appellant had superannuated on  

31.03.2008.  

We direct that 10% of the pension amount which had  

been withheld after superannuation on 31.03.2008 till  

19.07.2012 is liable to be paid to the Appellant within a period  

of 12 weeks from the date of this Judgment.   

After Rule 43(c) was inserted in the Bihar Pension Rules  

and brought into force on 19.07.2012, the State is empowered  

to legally withhold 10% of the pension amount of the Appellant,  

till the criminal proceedings in R.C. Case No. 48A/1996 are  

concluded. Consequently, the State will deduct 10% from the  

pension amount w.e.f. 19.07.2012 subject to the outcome of  

the criminal proceedings.   

 11 2019 Lab IC 2937 (FB): (2018) 159 FLR 143

20  

15. With respect to withholding of the full amount of gratuity,  

we find that as per Rule 27 of the Bihar Pension Rules,  

“pension” includes “gratuity”. With the insertion of Rule 43 (c)  

in the statute book w.e.f. 19.07.2012, it is clear that gratuity  

also could not have been withheld under administrative  

circulars dated 22.08.1974 and 31.10.1974, and Government  

Resolution No. 3104 dated 31.07.1980.   

The State is directed to release 90% of the gratuity  

payable to the Appellant within a period of 12 weeks from the  

date of this judgment. The balance 10% will be released subject  

to the outcome of the criminal proceedings pending against him  

in R.C. Case No. 48A/1996.  

The Civil Appeals are allowed in the aforesaid terms.  

       All pending Applications, if any, are accordingly disposed  

of.   

   Ordered accordingly.  

...…...............………………J.  (UDAY UMESH LALIT)  

.......................................J.  (INDU MALHOTRA)  

New Delhi;  February 18, 2020.