BALIRAM PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition, the petitioner, who retired as an Assistant Engineer while posted at Gaya in the Road Construction Department on 28.2.2003, is aggrieved on account of withholding of 10% pension, full gratuity and leave encashment in view of the fact that a criminal proceeding under Sections 409, 468 and 469, IPC is pending since 30th July, 1982 and a departmental proceeding is pending since 14.5.1990, which was, however, stayed by this Court vide order dated 20.5.1992 (Annexure-1) passed in the writ petition, bearing CWJC No. 4329 of 1991 filed by him, till such time the criminal proceeding is not concluded. The Court further directed that if after investigation, no charge sheet is submitted against the petitioner, it will be open to the respondents to proceed with the departmental proceeding.

(2.) A counter affidavit on behalf of the State and its officials (respondents No. 1 to 4 and 6) has been filed in which it is stated that the vigilance Department has submitted charge sheet against the petitioner, vide charge sheet No. 3/97 dated 26.2.1997, and due to various charges and pendency of criminal case against the petitioner, only 90% provisional pension has been sanctioned and remaining 10% pension, full gratuity and leave encashment of 240 days have been kept pending. It is also stated that the petitioner filed CWJC Nos. 668/96 and 283/97 for quashing the criminal proceeding, but the Hon'ble Court did not quash the same. It is further stated that in the light of the direction give in CWJC No. 4329 of 1991, the departmental proceeding against the petitioner has been stayed and consequent upon his superannuation on 28.2.2003, the departmental proceeding was converted into one under Rule 43(b) of the Rules.

(3.) Learned counsel for the petitioner has contended that now it is almost 22 years that neither the criminal proceeding nor the departmental proceeding has been concluded and the petitioner, in the meanwhile, superannuated from the service on 28th February, 2003, but has been kept denied of 10% of pension, full gratuity and leave encashment. According to the learned counsel for the petitioner, there cannot be any justification in withholding of the aforementioned retiral dues of the petitioner on the plea of-pendency of criminal case and the departmental proceeding now for over a decade, for which it is not even alleged that the petitioner in any manner is responsible. Further, learned counsel for the petitioner has produced a photo copy of the recent decision taken in the meeting held on 21.5.2003 under the Chairmanship of the Chief Secretary with respect to disposal of the claim relating to retiral dues, circulated vide memo No. pension koshang-41/03 dated 28,7.2003 to all Commissioners and Secretaries of the Departments/ all Departmental Heads/all Divisional Commissioners/all District Magistrates for information and necessary action, which is being kept on the record. He submitted that according to paragraph 20 of the said decision, if departmental proceeding against a retired employee is continuing or charge sheet has been submitted in the criminal case lodged against him, then 100% provisional pension is to be sanctioned. According to the learned counsel for the petitioner, since the 'pension' is defined in Rule 27 of the Bihar Pension Rules (in short 'the Rules') and it includes gratuity, the respondent-authorities are not legally justified in withholding of 10% of pension and full gratuity in view of the said recent decision. He further submitted that the Division Bench of this Court comprising Hon'ble B.P. Singh (as his Lordship then was) and Hon'ble IP, Singh in the case of Bajrang Deo, Narain Sinha v. State of Bihar, reported in 1999 (3) PLJR 949, held that the pensionary dues payable to the appellant, including gratuity, which is also pension within the meaning of the rules, cannot be withheld till such time as an order is passed under Rule 43(b) of the Rules. The Division Bench has further held that the leave encashment dues also cannot be withheld since that is paid in lieu of unutilised leave and, therefore, partakes the character of salary. In that view of the matter, the respondents have erred in withholding the said retiral dues of the petitioner.