ORDER The petitioner superannuated on 31.1.1995 from the post of Assistant Store Keeper from the Bihar State Electricity Board (hereinafter referred to as 'the Board') and has filed this Writ Petition praying for directions to the Respondents, to ensure payment of pension, gratuity, provident fund, leave encashment etc. and for quashing the office order no. 693 dated 31.1.1995 (Annexure 1'). 2. According to the petitioner while he was posted at the Divisional Store of the Board at Begusarai some discrepancies were detected by him while taking over charge of REC materials from Sri L.D. Singh, Store Keeper on 27.7.1982 and the petitioner submitted his report dated 27.8.1982 (Annexure 1') to the Assistant Electrical Engineer, Electrical Divisional Store, Begusarai and on further queries by the Assistant Electrical Engineer, the petitioner submitted a detailed explanation by his letter dated 12.7.1981 (Annexure 'C') and in his explanation submitted to the Electrical Superintending Engineer (Store) as well as to the Joint Secretary of the Board the petitioner denied any charge or liability and no further action was taken in this behalf against the petitioner. By the letter dated 5.8.1994 (Annexure 9') the Joint Secretary of the Board informed the petitioner that he had to superannuate on 31.1.1995 and directed him to submit the pension papers before the competent authority so that steps could be taken for sanction of pension etc. and according to the petitioner this indicated that the Board did not contemplate any departmental action against the petitioner. However, the Board issued impugned order dated 31.1.1995 (Annexure 1') by which the petitioner was informed that it has been decided by the Board to initiate disciplinary proceedings against the petitioner and the petitioner was required to file his written statement of defence within a fortnight in response to the charge sheet enclosed with the impugned order and Sri P.K. Bhatt, Electrical Executive Engineer (Commercial) was appointed as the Enquiry Officer. According to the charge sheet the petitioner was said to be responsible for the shortage of materials between 16.6.1980 to 30.6.1980 and from 15.10.1981 to 28.2.1982 which were based on the Enquiry/Fact Finding Report dated 31.8.1988 (Annexure 10') of a Committee presided over by the General Manager-cum-Chief Engineer, Mithila Area Electricity Board, Darbhanga. 3. According to the charge sheet the petitioner was said to be responsible for the shortage of materials between 16.6.1980 to 30.6.1980 and from 15.10.1981 to 28.2.1982 which were based on the Enquiry/Fact Finding Report dated 31.8.1988 (Annexure 10') of a Committee presided over by the General Manager-cum-Chief Engineer, Mithila Area Electricity Board, Darbhanga. 3. According to the petitioner the Committee had not considered the explanation of the petitioner and never examined him for the alleged lapses and also did not consider contemporaneous records and notings in the relevant files dated 27.8.1982. The petitioner alleges that it is not he, who could be held responsible, but other persons were liable for the alleged shortage. The petitioner claims that under the provisions of the Board's Service Regulations and its Policy Decisions the petitioner is entitled to his full pension and other retirement benefits which cannot be withheld on the pretext of pendency of disciplinary proceedings. 4. In the Supplementary Affidavit dated 27.3.1996 it has been stated by the petitioner that by the order dated 12.10.1995 (Annexure 11') issued by the Joint Secretary of the Board, payment of provisional pension to the extent of 90% amounting to Rs. 1,064.00 has been sanctioned and 10% pension has been withheld in view of the disciplinary proceedings and the proportionate dearness allowance admissible on the provisional pension has not been included and dearness allowance has been revised 148% with effect from January, 1996 from 136%. The petitioner has admitted that he has received General Provident Fund but the amounts due towards Gratuity, Leave Encashment, Group Savings Scheme and Dearness Allowance on provisional pension at the rate of 90% have yet not been paid. 5. In the Counter Affidavit filed on behalf of the Board it has been stated that the petitioner was found prima facie responsible for the shortage of materials worth Rs. 2,58,325.50 and an excess of materials worth Rs. 95,191.30 in the preliminary enquiry conducted by the Committee presided over by the General Manager-cum-Chief Engineer and the petitioner was given full opportunity to explain the cause of shortage and the excess found in the physical verification for the period from 16.6.1980 to 30.6.1980 and 15.10.1981 to 28.2.1982. 2,58,325.50 and an excess of materials worth Rs. 95,191.30 in the preliminary enquiry conducted by the Committee presided over by the General Manager-cum-Chief Engineer and the petitioner was given full opportunity to explain the cause of shortage and the excess found in the physical verification for the period from 16.6.1980 to 30.6.1980 and 15.10.1981 to 28.2.1982. It has been stated that after receiving the Board's order dated 31.1.1985 (Annexure 1') the petitioner by his letter dated 10.2.1995 (Annexure 'A') requested for supply of copies of certain documents which were furnished by the Board vide letter dated 24.3.1995 (Annexure 'B') and the petitioner instead of filing his written statement of defence requested the Board by his letter dated 13.4.1995 (Annexure 'C') for permission to inspect all the papers at Begusarai. The Enquiry Officer by his letter dated 19.5.1995 (Annexure 'D') called upon the petitioner to submit his written statement of defence by 29.5.1995 and fixed 30.5.1995 for oral enquiry at 11.30 a.m. but the petitioner did not respond to the notice and the Enquiry Officer by his letter dated 2.6.1995 (Annexure 'E') intimated the petitioner that he is required to appear on 12.6.1995 at 11.00 a.m. before him, but till date the petitioner has not filed his written statement of defence. As regards sanction of provisional pension and withholding of gratuity and other dues, the stand of the Board is that in view of the provisions contained in the Board's Finance and Accounts Code the Board is required to take steps to ensure that an employee involved in any loss or irregularity which is the subject of any enquiry is not inadvertantly allowed to retire on pension while the enquiry is in progress and in view of the provisions of Rule 43 (b) of the Bihar Pension Rules the petitioner is not entitled for payment of gratuity during pendency of departmental proceedings and in view of the Memo no. 2150 dated 19.7.1984 it has been made clear by the State Government that leave encashment is subject to recovery in case of dues against the employees and the said Rule is also applicable to the employees of the Board. It has been clarified that a sum of Rs. 39,352.00 on account of Gratuity, Rs. 11,596.00 on account of. Group Savings Scheme and a sum of Rs. 6,437,00 on account of leave encashment i.e. a total sum of Rs. It has been clarified that a sum of Rs. 39,352.00 on account of Gratuity, Rs. 11,596.00 on account of. Group Savings Scheme and a sum of Rs. 6,437,00 on account of leave encashment i.e. a total sum of Rs. 57,385.00 has been withheld subject to the decision in the departmental proceedings pending against the petitioner, for the alleged misappropriation of materials worth Rs. 2,58,325.50. The allegations of mala tide and harassment made by the petitioner have been denied as baseless. 6. The petitioner has not controverted the statements made in the Counter Affidavit, as Rejoinder Affidavit has not been filed on his behalf. 7. The contention of the learned counsel for the petitioner is that this Court in identical circumstances in Baliram Singh Vs. State of Bihar and others (C.W.J.C. No.10859 of 1992) by the order dated 8.3.1994 directed the Board for payment of full gratuity and dearness allowance in a case where departmental proceedings and a criminal case were pending. Learned counsel therefore submits that even if the departmental proceedings are pending, the Board is obliged to pay full gratuity and dearness allowance to the petitioner as this Court in C.W.J.C. No. 10859 of 1992 had held that there was no justification for the Board to withhold the aforesaid payments. 8. From a perusal of the order dated 8.3.1994 of this Court it does not appear that Counter Affidavit had been filed on behalf of the Board or the provisions of the Board's Finance and Accounts Code and the applicability of Rule 43 (b) of the Bihar Pension Rules and the decisions of the State Government, which have been adopted by the Board, had been brought to the notice of the Court or had been considered by the Court. 9. Learned counsel for the Board contended that in view of the Rules and the orders referred to hereinabove, the Board, is fully justified in sanctioning provisional pension and withholding gratuity, leave encashment, Group Savings Scheme subject to the decision in the disciplinary proceedings which are being delayed by the petitioner on account of his non-co-operative attitude. Learned counsel however could not justify nor is there anything in the Counter Affidavit to indicate that the Board has sanctioned the payment of revised dearness allowance on the proportionate pension and to this extent the petitioner's grievance appears to be legitimate. 10. Learned counsel however could not justify nor is there anything in the Counter Affidavit to indicate that the Board has sanctioned the payment of revised dearness allowance on the proportionate pension and to this extent the petitioner's grievance appears to be legitimate. 10. I have considered the submissions made by the learned counsel for the parties and the material on record. 11. It is true that on the day on which the petitioner was to superannuate, decision was taken to initiate departmental action against the petitioner and accordingly the order dated 31.1.1985 (Annexure 1') was issued enclosing the charge sheet but only on that account the action of the Board can neither be said to be illegal nor arbitrary. Learned counsel for the petitioner did not bring to my notice any Rule or decision of the Board that departmental proceedings cannot be initiated and the charge sheet cannot be issued on the day on which the employee is to superannuate, on the contrary it is evident from the material on record that an employee of the Board against whom there are charges of embezzlement or misappropriation would not be allowed to retire with full pension and therefore the Board is fully justified in sanctioning the provisional pension and in withholding 10% pension subject to the decision in the disciplinary proceedings. The action of the Board in withholding gratuity, amounts due towards Group Savings Scheme, leave encashment etc. as a temporary measure also cannot be said to be arbitrary as it is open for the Board to make good the loss caused to it by the petitioner in the event the petitioner is found to be responsible and the charges are duly proved against him by making recovery from the amounts due towards the above account. 12. This Court in Ram Bahadur Sinha Vs. State of Bihar and others ( 1994 (2) PLJR 724 ) has held that the State Government can also withhold pension as an interim measure during pendency of departmental proceedings. The State Government by Rule 43 (b) of the Bihar Pension Rules can withhold as an interim measure payment of full pension and gratuity. State of Bihar and others ( 1994 (2) PLJR 724 ) has held that the State Government can also withhold pension as an interim measure during pendency of departmental proceedings. The State Government by Rule 43 (b) of the Bihar Pension Rules can withhold as an interim measure payment of full pension and gratuity. The question whether the State Government is not competent to withhold whole or part of the amount of pension as an interim measure where the departmental or judicial proceedings has already been instituted or where a decision to institute the same has already been taken was answered in affirmative by the Division Bench and this Court held : "Withholding whole or part of the pension pending departmental or judicial proceeding would be Just like placing a Government employee under suspension pending departmental proceeding or criminal case against him. It is well known that any such order of suspension as an interim measure is 'a contradistinction to 'suspension' as a penalty under Rule 49 of the Civil Services (Classification, Control & Appeal) Rules, 1930, or Rule 2 of the Bihar and Orissa Sub-ordinate Services (Discipline and Appeal) Rules, 1935, is not penal in nature. Just as an order or suspension pending departmental proceeding or criminal case does not visit the person concerned with any evil consequences inasmuch as in the event of his being found not guilty of the charge he becomes entitled to all the service benefits including pay and allowances etc. for the intervening period, similarly, any order exonerating the person concerned of the charges in the departmental or judicial proceeding within the meaning of Rule 43 (b) would entitle him to full pension. Therefore, withholding whole or part of pension as an interim measure during the pendency of the proceeding or in contemplation thereof cannot be said to be penal in the eye of law." 13. Therefore, withholding whole or part of pension as an interim measure during the pendency of the proceeding or in contemplation thereof cannot be said to be penal in the eye of law." 13. It was further held that although Rule 43 (b) does not in terms refer to 'Gratuity' but Rule 27 of the Bihar Pension Rules defines 'Pension' to include 'Gratuity' and following the decision of the Supreme Court in Jarnail Singh vs. The Secretary, Ministry of Home Affairs ( AIR 1994 SC 1484 ), it was held that : "It would appear that while Rule 9 of the Central Rules is couched in exactly the same language as Rule 43 (b) of the Bihar Rules, the definition of the term 'pension' in the two Rules is also the same with the only difference that in the Central Rules what is implicit has been made explicit by providing that except where the two terms 'pension' and 'gratuity' are used in different sense, pension would not include gratuity. In other words, ordinarily the term 'pension' wherever it occurs in the Rules would also include gratuity, but where they have been used in opposite sense or have been assigned opposite meanings pension would not include gratuity. Their Lordships upon consideration of the said two Rules held that the amount of gratuity can also be withheld by the President under Rule 9. It may be stated here that in that case the entire amount of pension and gratuity had been withheld on permanent basis by way of punishment and the only question for consideration was whether the payment of gratuity also could be withheld by way of punishment for recovery of loss sustained by the Government." 14. From the Memo dated 19.7.1984 (Annexure 'G') it is evident that recovery can be made from the amount payable to an employee towards encashment of earned leave and therefore the, Board is justified in withholding encashment of earned leave subject to the decision in the disciplinary proceeding. The Board is fully justified in withholding payment of Rs. 57,385.00 subject to the decision in the disciplinary proceeding and the petitioner's grievance for non-payment of these dues is wholly misconceived. However, in case the Board has not paid the dearness allowance in accordance with the Rules it shall pay the same to, the petitioner as expeditiously as possible. The Board is fully justified in withholding payment of Rs. 57,385.00 subject to the decision in the disciplinary proceeding and the petitioner's grievance for non-payment of these dues is wholly misconceived. However, in case the Board has not paid the dearness allowance in accordance with the Rules it shall pay the same to, the petitioner as expeditiously as possible. Although no willingness has been expressed by the petitioner to co-operate in the disciplinary proceeding but in my view it is expedient to direct the Board to conclude the proceedings within a reasonable time. 15. Accordingly the Writ Petition is disposed of with the directions to the Respondents to grant one final opportunity by giving the petitioner at least six weeks' time to file his written statement of defence and appear before the Enquiry Officer and in case the petitioner does not co-operate in the proceedings it is open for the Board to conclude the proceedings according to Rules even ex parte. The Board shall also pay the dearness allowance according to Rules, if not already paid. No order as to costs.