Case Background
The case began when a retired government doctor approached the Patna High Court challenging an order that had stopped his pension and 10% of his gratuity permanently.
The impugned order was dated 11.08.2021 and was dispatched through Memo No. 589(9)/Swa. Patna dated 13.08.2021, mentioning No. Vividh-13-28/2018 (Swa)/Patna. By this order, the authorities stopped payment of the pension amount and 10% of the gratuity on a permanent basis.
The writ petitioner asked the Court to quash this order and to direct the authorities to pay his full pension and the withheld part of his gratuity. He sought writs in the nature of certiorari and mandamus to achieve these results.
After notice was issued in the writ case, Respondents 1, 2 and 3 filed a counter affidavit, and Respondent 4 filed a separate counter affidavit. The learned Single Judge examined the pleadings, the documents on record and the legal position under the Bihar Service Code and the Bihar Pension Rules, 1950 (Rule 43(b)).
The Single Judge noted that the petitioner, a government doctor, had gone on leave from 01.04.2003 because his wife was seriously ill and remained absent till 13.12.2010. During this long period, no notice was served on him and no proceeding under Rule 76 of the Bihar Service Code was initiated. His joining at headquarters was accepted on 14.12.2010 and he was formally posted by notification dated 30.06.2012. He was then allowed to retire on superannuation, unconditionally, on 28.02.2019.
Only after his retirement was a proceeding started under Rule 43(b) of the Bihar Pension Rules, 1950 on the allegation of unauthorised absence between 01.04.2003 and 13.12.2010. A memo of charge was served and the retired doctor did submit an explanation and took part in the proceeding.
The learned Single Judge held that even though the petitioner had participated in the proceeding, he could still challenge it if it was wholly without jurisdiction. The Judge examined Rule 43(b) and its proviso, particularly clause (a)(ii), which restricts such post-retirement proceedings to events that occurred not more than four years before their institution.
The Single Judge also referred to and relied on the Supreme Court decision in State of Bihar and Others v. Mohd. Idris Ansari [1995 Supp (3) SCC 56]. In that case, the Supreme Court explained that for using Rule 43(b) against a retired government servant, the departmental proceeding must relate to misconduct that took place within four years prior to initiation of the proceeding. Older allegations cannot be the basis of such action.
Applying this law, the Single Judge found that the alleged misconduct (unauthorised absence from 01.04.2003 to 13.12.2010) was well beyond the four-year limit when proceedings were initiated after retirement. Therefore, the proceeding itself was time-barred and without jurisdiction.
The Judge further noted that under Rule 76 of the Bihar Service Code, the competent authority can remove a government servant who remains absent continuously for more than five years, but only after holding a proper departmental proceeding and giving the employee an opportunity to be heard. In this case, no such proceeding was initiated while the doctor was in service, and instead he was permitted to continue and retire.
Looking at the impugned order, the Single Judge observed that the authority had reasoned that, had the department known of the unauthorised absence, the petitioner would have been dismissed. Since he had already retired and been given 90% gratuity, the authority decided to withhold his full pension and the remaining 10% of gratuity.
The Single Judge found this reasoning “wholly unsustainable” in both facts and law. The record showed that his joining had been accepted in 2010, he had been posted in 2012 and allowed to retire in 2019. Even otherwise, even if Rule 43(b) had been properly invoked, there was no finding that any pecuniary loss had been caused to the Government or that the petitioner had been found guilty of grave misconduct in any departmental or judicial proceeding, which is a requirement under Rule 43(b).
On these admitted facts and settled legal principles, the Single Judge held that the initiation of the proceeding under Rule 43(b) in relation to events from 01.04.2003 to 13.12.2010 was clearly time barred. The impugned order dated 11.08.2021, contained in Memo No. 589(9) dated 13.08.2021, was therefore set aside.
The Single Judge then directed the authorities to ensure payment of full pension and the withheld 10% gratuity to the petitioner within twelve weeks from the date of receipt or production of the order.
The State of Bihar and its officers, dissatisfied with this outcome, filed the present Letters Patent Appeal (LPA No. 621 of 2025) challenging the judgment dated 12.12.2024 in CWJC No. 51 of 2022.
What the Court Examined and Decided
The Division Bench, consisting of Hon’ble the Chief Justice and Hon’ble Mr. Justice Mohit Kumar Shah, heard the State’s appeal. The main thrust of the State’s argument was that a departmental proceeding had actually been initiated against the doctor on 15.03.2018, that is before his retirement date of 28.02.2019. On this basis, the State attempted to contest the Single Judge’s observation that no proceeding had been initiated under Rule 76 of the Bihar Service Code while he was in service.
The Bench closely examined this contention. It noted that no such specific stand had been taken by the State in the counter affidavit filed before the Single Judge. Further, no document was annexed to show that the petitioner had ever been served with any notice of a proceeding in terms of the relevant rules while he was still in service.
Thus, the Division Bench held that this was a belated plea raised only at the appellate stage and could not be entertained. Courts generally do not permit parties to set up new factual stands in appeal that were not pleaded or proven earlier.
The Bench also found that paragraph 4 of the State’s own memo of appeal contradicted the argument that proceedings had been properly initiated before superannuation. Paragraph 4 clearly stated that before the Health Department’s resolution bearing Memo No. 1259(9) dated 23.09.2019 for initiation of departmental proceeding could be issued on the basis of memo of charge dated 15.03.2018, the petitioner had already superannuated from service with effect from 28.02.2019.
In other words, the appeal memo itself admitted that the formal resolution initiating the departmental proceeding came only in September 2019, several months after retirement. This admission directly supported the Single Judge’s conclusion that the proceeding under Rule 43(b), relating to events from 2003–2010, was initiated only post-retirement and was time-barred.
The Division Bench then turned to the larger question of the scope of its powers in a Letters Patent Appeal. It noted that such an appeal is an intra-court appeal where the Division Bench functions as a “Court of Correction” under the same jurisdiction as that of the Single Judge. It is not an appeal from a subordinate court. The Bench referred to the Supreme Court decision in Baddula Lakshmaiah v. Shri Anjaneya Swami Temple, reported in (1996) 3 SCC 52.
Relying on that precedent, the Bench emphasised that the Division Bench should not disturb findings of fact recorded by the Single Judge unless those findings are based on no evidence, are perverse, clearly unreasonable, or inconsistent with settled legal principles. The power of interference is narrow and is meant only to correct errors.
The Bench further cited the Supreme Court decision in B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449. In that case, the Supreme Court held that although a Division Bench in an intra-court appeal may reappraise questions of fact and law, it should ordinarily not differ from the Single Judge on factual findings unless there are strong reasons. Even a first appellate court must exercise restraint while reassessing facts.
Similarly, the Bench referred to Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243, which took the same view on the limited scope of interference with factual findings.
The Division Bench also relied on Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company, (2016) 3 SCC 340. There, the Supreme Court clarified that in intra-court appeals, findings of fact by the Single Judge should not be disturbed unless they are perverse. It further held that the mere possibility of another, or even a better, view is not a valid reason to interfere, unless both sides consent for a different approach on relief.
After discussing these precedents, the Division Bench underlined that the purpose of a Letters Patent Appeal is to provide an internal check and balance within the High Court, ensuring judicial accountability and protecting citizens’ rights by allowing further review. However, this review is not supposed to be a full re-hearing on facts unless there is a clear error.
Applying these principles, the Bench assessed the Single Judge’s reasoning. It saw no perversity or legal error in the Single Judge’s findings regarding the timing of the departmental proceedings, the absence of timely action under Rule 76, and the bar under Rule 43(b) for events older than four years.
The factual conclusions that the petitioner was allowed to rejoin in 2010, posted in 2012, and permitted to retire in 2019 without any in-service departmental proceeding were supported by the materials on record. The Single Judge’s application of the Supreme Court’s interpretation of Rule 43(b) in Mohd. Idris Ansari’s case was also found to be legally sound.
Consequently, the Division Bench held that there was no ground to interfere with the judgment dated 12.12.2024 in CWJC No. 51 of 2022. It concluded that no perversity or serious legal error had been shown.
The Letters Patent Appeal filed by the State and its officers was therefore dismissed. The earlier directions of the Single Judge, directing payment of full pension and the withheld 10% of gratuity within twelve weeks, remain intact and enforceable.
Why This Judgment Matters
This judgment is significant for government employees in Bihar, especially those nearing retirement or already retired, who may face stoppage of pension or gratuity on old allegations.
The Patna High Court has reinforced that the State cannot use Rule 43(b) of the Bihar Pension Rules, 1950 to punish a retired employee for very old events that are beyond the four-year limit. Proceedings under this rule must be timely and must relate to recent events only.
The decision also highlights that if a department knowingly accepts an employee’s joining, posts him, and then allows him to retire without any departmental proceeding, it cannot later use pensionary benefits as a substitute for punishment based on the same old conduct.
Further, by refusing to entertain the State’s new factual plea raised for the first time in appeal, the Court has shown that the record before the Single Judge is crucial and cannot be casually altered at the appellate stage.
For retired employees, this reinforces that arbitrary withholding of pension or gratuity without proper, timely proceedings can be successfully challenged before the Patna High Court.
Legal Issues and Answers
- Issue: Could the State validly initiate and rely on a departmental proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 for alleged unauthorised absence between 01.04.2003 and 13.12.2010, after the doctor’s retirement, to stop his pension and part of gratuity?
Answer: No. The Court held that Rule 43(b) permits such proceedings only for events that occurred within four years prior to their institution. Since the alleged misconduct was much older, the proceeding was time-barred and without jurisdiction, and the stoppage order had to be set aside. - Issue: Should the Division Bench in a Letters Patent Appeal interfere with the Single Judge’s factual findings regarding absence of timely proceedings and the legality of the pension stoppage?
Answer: No. The Division Bench held that in an intra-court appeal it should not disturb factual findings unless they are perverse or unsupported by evidence. Finding no such perversity, it upheld the Single Judge’s judgment and dismissed the appeal.
Cases Cited by the Court
- State of Bihar and Others v. Mohd. Idris Ansari, 1995 Supp (3) SCC 56
- Baddula Lakshmaiah v. Shri Anjaneya Swami Temple, (1996) 3 SCC 52
- B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449
- Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243
- Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company, (2016) 3 SCC 340
Case Details
Case Number: Letters Patent Appeal No. 621 of 2025 in Civil Writ Jurisdiction Case No. 51 of 2022
Case Title: The State of Bihar & Others v. Dr. Shameem Shohreay Afaque & Another
Citation: 2026 (3) PLJR 54
Coram: Hon’ble the Chief Justice; Hon’ble Mr. Justice Mohit Kumar Shah
Date of Judgment: 19.01.2026
Advocates:
- For the Appellants (State of Bihar and Others): Mr. Ajay Behari Sinha, GA-8; Mr. Suryakant Kumar, AC to GA-8
- For Respondent No. 1 (writ petitioner): Mr. Pankaj Kumar Sinha, Advocate; Mr. Rajiv Kumar Singh, Advocate
- For Respondent No. 2 (Accountant General, Bihar): Mr. Ram Kinkr Choubey, SC IA & AD
Nature of the Case: Letters Patent Appeal (intra-court appeal) against a Single Judge’s order in a writ petition concerning stoppage of pension and gratuity.
Link to Judgment: Click here to read the full judgment of the Patna High Court
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