VIJAY KUMAR MISHRA Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) The order dated 24th Oct., 2013 passed by the learned Single Bench in CWJC No. 3893 of 2013 is the subject matter of challenge in the present Letters Patent Appeal. By the order under appeal, the claim of the petitioner for grant of benefit of encashment of earned leave as well as other benefits for the period of judicial custody of the petitioner was directed to be examined by the State Government.

(2.) The appellant was in judicial custody in a case for offence under Sec. 302 of the Indian Penal Code for 196 days. The appellant claims that there is no rule for withholding his retiral benefits such as pension, leave encashment and gratuity on account of pending criminal trial. Therefore, the action of the State Government in not paying the leave encashment and the gratuity is not sustainable. It is admitted that provisional pension has since been sanctioned and is being paid to the appellant.

(3.) The entire argument of the appellant is based upon the Supreme Court judgment reported as (2013) 12 SCC 210 (State of Jharkhand Vs. Jitendra Kumar Srivastava) , wherein Rule 43(b) of the Bihar Pension Rules, 1950 and the Circular of the State Government dated 31st July, 1980 were considered. A finding was returned that the circular issued has no force of law. Therefore, the State Government cannot withhold any part of pension or gratuity.