NARESH MOHAN SINHA Vs. STATE OF BIHAR; SECRETARY, DEPARTMENT OF AGRICULTURE; DIRECTOR OF AGRICULTURE; JOINT SECRETARY, DEPARTMENT OF AGRICULTURE; DEPUTY SECRETARY, DEPARTMENT OF AGRICULTURE; ASSISTANT AGRONOMIST ADOPTABLE RESEARCH CENTRE; DISTRICT MAGISTRATE, JAMUI; DISTRICT MA

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for Accountant General. The petitioner seeks to challenge and quash the order dated 06.04.2011 contained in Memo No. 706 issued by the respondent no. 2, the Secretary, Department of Agriculture by which the claim of the petitioner for grant of rest 10 percent pension and gratuity has been rejected. It is submitted on behalf of the petitioner that the respondents have acted far beyond the provisions of law inasmuch as till the date of retirement there was no proceeding pending against him departmentally and on account of the pendency of a criminal proceeding initiated after retirement, the amount which is due by way of pension and gratuity has been illegally withheld. Vide order dated 15.07.2010 passed in C.W.J.C. No. 10903 of 2010 this Court had directed the petitioner to present the representation before the concerned authorities for release of the rest 10 percent amount which is due by way of pension and gratuity but unfortunately despite the petitioner having filed his representation in pursuance of the order dated 15.07.2010, no orders were passed in his favour. Consequently, the petitioner approached this Hon'ble Court in M.J.C. No. 674 of 2011 by way of filing a contempt application. During the pendency of the said petition, the respondent State passed the impugned order which is the subject matter in the present writ application.

(2.) Learned counsel for the petitioner submits that as per the existent rule and that which has been settled by a catena of decisions of this Hon'ble Court as well as the Hon'ble Apex Court there is no provision by which the Respondents could be entitled to withhold his pension and gratuity i.e., 10 percent left over and any such action is grossly illegal and arbitrary and warrants interference by this Hon'ble Court. Learned counsel for the petitioner has further drawn my attention to a judgment of the Hon'ble Apex Court in the matter of State of Jharkhand vs. Jitendra Kumar Srivastava, 2013 3 PLJR 458 in which the Hon'ble Apex Court while dealing with the Section 43 (b) have clearly explained the circumstances in which pension or gratuity could have been withheld or withdrawn which reads as under:

(3.) From the reading of the aforesaid Rule 43(b), following position emerges:-