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2000 DIGILAW 334 (PAT)

Muni Lal Mandal v. State Of Bihar

2000-03-01

RADHA MOHAN PRASAD

body2000
Judgment 1. Heard learned counsel for the parties. 2. The petitioner retired on 31.5.1995 while posted as Treasury Sarkar in the department of Minor Irrigation, Govt. of Bihar at Patna. 3. The grievance of the petitioner is that despite lapses of over three and half years since his retirement he has not been paid amount of gratuity, leave encashment and even due pension which is being paid to him only 90% on the basis of the pay in the basic scale. 4. A counter affidavit has been filed on behalf of the Chief Engineer, Minor Irrigation (respondent no. 3). From the said counter affidavit it appears that the said amount has been kept withheld on account of pendency of vigilance case no. 10 of 1996 lodged against the petitioner including ten other persons for their involvement in fraudulent withdrawal of government money. 5. Learned counsel for the petitioner has submitted that it is not the case of the respondents that the aforementioned amount has been kept withheld after the petitioner has been found guilty for which the Government is empowered under Rule 43 of the Bihar Pension Rules. There is no statutory provision under which the pensionary dues payable on retirement of a Government servant under the rule can be withheld. 6. Learned counsel for the State has relied upon the instruction of the State Government contained in annexure-A vide F.D. Memo No. PC-11-40-28/74/9144 F dated 22.8.74 in support of the stand of the respondents that certain amount of pensionary benefit can be withheld even during the pendency of the departmental or judicial proceedings or inquiries. 7. This court fails to appreciate how by the executive order contained in annexure-A the pensionary dues payable under the statutory provision on retirement of a government servant can be curtailed/withheld without there being any statutory provision empowering the authority for the same. Learned counsel for the State has failed to show any law/statutory provision under which the pensionary dues can be withheld even during the pendency of a departmental/judicial proceeding. 8. A Division Bench of this Court in the case of Bajrangdeo Narain Singh vs. State of Bihar and ors. Learned counsel for the State has failed to show any law/statutory provision under which the pensionary dues can be withheld even during the pendency of a departmental/judicial proceeding. 8. A Division Bench of this Court in the case of Bajrangdeo Narain Singh vs. State of Bihar and ors. (L.P.A. No. 124 of 1990 disposed of on 26.8.99) 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 Bihar Pension Rules, cannot be withheld till such time as an order is passed under Rule 43 (b) of the Bihar Pension Rules. Similarly, the leave encashment also cannot be withheld since that is paid in lieu of the unutilised leave and therefore partakes the character of salary. 9. This Court also in the case of Satyendra Narain Sinha alias Dr. Satyendra Narain Sinha vs. State of Bihar and ors. (C.W.J.C. No. 221 ol 1999 disposed of on 17.9.99) [1999 (3) PLJR 939] has considered in detail the scope of the said circular of the Finance Department contained in F.D. Memo No. PC-11-40-28/74/9144F dated 22.8.74 read with Finance Department Memo No. PC -11-40- 98/74/11216-F dated 31.10.74 and Finance Departments Resolution No. 3014 dated 31.7.80 in which a provision has been made for payment of 90% provisional pension to such pensioner against whom a departmental or judicial proceeding is pending and also the provision contained in Rule 139 (b) of Bihar pension and negatived the contension on behalf of the State that the pension can be kept withheld on account of pendency of departmental/judicial proceeding. 10. Accordingly, this court is of the view that the respondents were not legally justified in withholding the payment of the aforesaid pensionary dues payable to the petitioner. This writ petition is, thus, allowed and respondent no. 3 (Chief Engineer, Minor Irrigation Department, Govt.of Bihar, Patna) is hereby directed to issue necessary sanction order for payment of the said dues to the petitioner within a period of two weeks from the date of receipt/production of a copy of this order.