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2002 DIGILAW 921 (PAT)

Shamsher Bahadur Sinha v. State Of Bihar

2002-08-23

SHIVA KIRTI SINGH

body2002
Judgment 1. Heard the parties. 2. Petitioner claims to have retired from the post of senior clerk from the office of respondent no. 4, Cattle Development Officer, Muzaffarpur on 30th April, 1993. Petitioner is now in receipt of full pension but he has not been paid the dues of gratuity and leave encashment and also salary over and above the subsistence allowances for the period from 4.3.1979 to 24.10.1984. This writ petition has been filed for a direction to the respondents to pay the aforesaid dues of gratuity, leave encashment and salary. 3. There is no dispute that petitioner is facing departmental proceeding as well as criminal prosecution from a date prior to his retirement. Petitioner has prayed for quashing of the memo of charges framed in 1981 as contained in annexure-1 as well as orders contained in annexures 2 and 3 issued in the year 1997 by which another enquiry officer was appointed to conclude enquiry in the departmental proceeding and petitioner was given notice to appear in the said enquiry. On behalf of the petitioner the pending departmental proceeding and the impugned orders have been challenged firstly on the ground that no order under Rule 43 (b) of the Bihar Pension Rules has been issued to convert pending departmental proceeding into one under the said Rule and secondly on the ground of long delay. 4. So far as the first submission is concerned, this court finds no merit in the same in view of law settled by a Full Bench of this court in a judgment reported in PLJR 2000 (1) 665 that no order of conversion is required for continuance of a pending proceeding. Since a criminal prosecution is also pending against the petitioner for the same allegation of forgery hence this Court finds no good ground to quash the departmental proceeding which has not been concluded as yet as the criminal prosecution is pending. Hence the prayer of the petitioner for quashing of the pending departmental proceeding is found to be without merit. However, the other prayer made on behalf of the petitioner that he should be paid the entire dues of gratuity and leave encashment because no part of retiral benefit or other dues can be withheld beyond the provision of Rule 43 of the Bihar Pension Rules deserves consideration. However, the other prayer made on behalf of the petitioner that he should be paid the entire dues of gratuity and leave encashment because no part of retiral benefit or other dues can be withheld beyond the provision of Rule 43 of the Bihar Pension Rules deserves consideration. For this purpose petitioner has relied upon a Division Bench decision of this Court in the case of Bajrang Narayan Singh vs. The State of Bihar, reported in 1999 (3) PLJR 949 (Arun Kumar vs. State of Bihar). The said judgment clearly supports the stand of the petitioner that the State cannot withhold a pension or part thereof till such time an order is passed under Rule 43 (b) of the Bihar Pension Rules and it is only in the case of proved misconduct that the part or whole of the pension can be withheld. Such judgment further clarifies in paragraph 6 that leave encashment dues also cannot be withheld since that is paid in lieu of un-utilised leave and therefore par-takes the character of salary. 5. On behalf of State it was submitted that Rule 43 (a) is also equally applicable in the matter of grant of pension and that provides that good conduct is an implied condition for grant of pension. Hence it is submitted that if there are departmental or criminal proceeding pending then the Government may be justified in not sanctioning pension to a retired employ until the proceeding is concluded and the cloud cast upon the good conduct of the employee is dispelled. It has further been submitted that although rule 43 (b) in clear terms provides for passing of a final order for withholding or withdrawing of pension or part of it, impliedly such power can be exercised even during the pendency of the proceeding otherwise in many cases once the entire pensionary benefits are paid, the Government may not be in a position to recover the same. 6. No doubt the submissions raised on behalf of the State carry some weight but this Court is bound by the Division Bench judgment in the case of Bajrang Narayan Singh (supra) and hence the prayer of the petitioner for a direction to the respondents to pay the entire dues of gratuity and leave encashment is allowed. 6. No doubt the submissions raised on behalf of the State carry some weight but this Court is bound by the Division Bench judgment in the case of Bajrang Narayan Singh (supra) and hence the prayer of the petitioner for a direction to the respondents to pay the entire dues of gratuity and leave encashment is allowed. The concerned respondents are directed to sanction the lawful dues on both the heads within a period of two months and payment order must be issued within a further period of one month. It goes without saying that on conclusion of departmental proceeding or the criminal proceeding the State will be entitled to pass appropriate orders in accordance with law irrespective of grant of retiral benefits to the petitioner. So far as arrear claim for salary for the period of suspension is concerned that shall abide by the decision taken in the departmental proceedings. It is expected that the departmental proceeding shall be concluded in accordance with law at an early date preferably within six months.