JUGAL KISHORE PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellant had moved this Court in c. W. J. C. No. 4600 of 1990. Since disputed question of fact was involved, he was given liberty to file suit. The appellant filed Title suit No. 87 of 1993 in the court of Subordinate Judge, i, Munger claiming a decree of a sum of Rs. 1,12,821. 38 by declaring that the appellant is entitled for pension, gratuity etc. with effect from January 1, 1989 and bonus for the year 1988. The suit was filed after notice under Section 80 C. PC. The appellant had retired from service on december 31, 1988 as U. D. Assistant from Primary health Centre, Jamalpur. The appellant filed a petition under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying to issue mandatory injunction directing the respondents to pay at least 90% of his pension prescribed under the Resolution No. 3014 dated July 31, 1980 of the Finance department, 100% of the P. F. and gratuity. The Subordinate Judge rejected the prayer for injunction on the ground that the suit itself was not maintainable in view of the provisions contained in Section 6 of the pension Act, 1871. The service condition of the appellant is governed by Bihar Pension rules, 1950 framed by the State Government under section 241 of the Government of India Act, 1935.

(2.) IN my opinion, the Subordinate judge erred in invoking the provisions of pension Act. Even if the case comes under the Pension Act, 1871, the Government employee can sue for his pension. In my opinion, there is no bar as contained in section 4 of the Pension Act, that the appellant cannot apply for pension as a matter of right. Section 4 is meant to apply to only those case where pensions are paid purely as bounty, such as, political pension etc. This question has been considered by the madhya Pradesh High Court in the case reported in 1984 L. I. C. 1903. The Subordinate Judge, in my opinion, should have decided the case with reference to Bihar pension Rules, 1950 and not under the pension Act, 1871. It was not proper for him to decide the maintainability of the. suit while deciding the injunction matter.

(3.) THE appeal is, thus, allowed and the order of the Subordinate Judge, 1st, munger dated 14th August, 1995 passed in t. S. No. 87 of 1993 is set aside and the matter is remitted to the Subordinate judge, 1st, Munger for fresh consideration of the injunction matter on merits. However, there shall be no order as to cost.