Hira Lal vs The State Of Bihar on 18 February, 2020


Supreme Court of India

Hira Lal vs The State Of Bihar on 18 February, 2020

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Hon’Ble Ms. Malhotra, Hemant Gupta

                                                                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)




                                             JUDGMENT

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,
Signature Not Verified

MUKESH KUMAR
Date: 2020.02.18
on the ground of pending criminal proceedings?
Digitally signed by

17:20:24 IST
Reason:

1

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

2
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

3

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

4
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

5
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]

6
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

7
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]

8
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]

9
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

10
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

11
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

12
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

13
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

14
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

15
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]

16
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

17
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

18
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

19

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.

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