SHAMSHER BAHADUR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD the parties.

(2.) PETITIONER claims to have retired from the post of senior clerk from the office of respondent no. 4, Cattle Development Officer, Muzaffarpur on 30th April, 1993. Petitioner is now in receipt of full pension but he has not been paid the dues of gratuity and leave encashment and also salary over and above the subsistence allowances for the period from 4.3.1979 to 24.10.1984. This writ petition has been filed for a direction to the respondents to pay the aforesaid dues of gratuity, leave encashment and salary.

(3.) SO far as the first submission is concerned, this court finds no merit in the same in view of law settled by a Full Bench of this court in a judgment reported in PLJR 2000 (1) 665 that no order of conversion is required for continuance of a pending proceeding. Since a criminal prosecution is also pending against the petitioner for the same allegation of forgery hence this Court finds no good ground to quash the departmental proceeding which has not been concluded as yet as the criminal prosecution is pending. Hence the prayer of the petitioner for quashing of the pending departmental proceeding is found to be without merit. However, the other prayer made on behalf of the petitioner that he should be paid the entire dues of gratuity and leave encashment because no part of retiral benefit or other dues can be withheld beyond the provision of Rule 43 of the Bihar Pension Rules deserves consideration. For this purpose petitioner has relied upon a Division Bench decision of this Court in the case of Bajrang Narayan Singh vs. The State of Bihar, reported in 1999 (3) PLJR 949 (Arun Kumar vs. State of Bihar). The said judgment clearly supports the stand of the petitioner that the State cannot withhold a pension or part thereof till such time an order is passed under Rule 43 (b) of the Bihar Pension Rules and it is only in the case of proved misconduct that the part or whole of the pension can be withheld. Such judgment further clarifies in paragraph 6 that leave encashment dues also cannot be withheld since that is paid in lieu of un -utilised leave and therefore par -takes the character of salary.