Judgment 1. The petitioner, who retired from the service of the respondent-Bank on 31.12.2000 while posted as Branch Manager of Sasaram Branch, is aggrieved on account of non-payment of his retiral dues. 2. A counter affidavit has been filed on behalf of the respondents in which it is slated that a departmental proceeding for defalcation of a sum of Rs. 3,44,280.04 was initiated against the petitioner. It is further stated that the allegation was that the petitioner had not performed the duty of Branch Manager and defalcated a sum of Rs. 33,550.00 and Rs. 20,369.30 with the help of the then Assistant Accountant by overwriting, making forge signature and pasting some papers. In the said departmental proceeding, the enquiry officer found him guilty of the charges levelled against him and in turn the disciplinary authority inflicted punishment upon the petitioner. It is further stated that Managing Director directed to take appropriate legal action for recovery of Rs. 3,44,280.04 from the petitioner. It is also stated that the petitioner has also been made accused in a criminal case for defalcation of a sum of Rs. 3,98,312.34. Apart from this, it is stated (that a sum of Rs. 18,834.62 is due against the petitioner and further a sum of Rs. 87,271.15 is also due against the petitioner which he had taken either against cash advance or against the loan in terms of cash credit in the name of his wife and the petitioner is a guarantor of his wife. Therefore, according to the stand taken in the counter affidavit, the petitioner owes a heavy dues which is legally recoverable from him. 3. A reply affidavit has been filed on behalf of the petitioner, to which the copy of the order of punishment passed in the departmental proceeding has been annexed as Annexure 3. From perusal of the said order it appears that the petitioner was released from suspension by giving warning and censure and stopping two annual increments. As regards the criminal case, the petitioner admits that the criminal case is pending against him, but stated that all allegations made in the departmental proceeding as well as criminal case are false and concocted and was filed by the respondents with mala fide intention. In paragraph 5 it is stated that in the criminal case lodged in 1994 charge has not been framed as yet. 4. In paragraph 5 it is stated that in the criminal case lodged in 1994 charge has not been framed as yet. 4. Learned counsel for the petitioner, thus, has submitted that in view of the order passed in the departmental proceeding (Annexure 3) and mere lodging of the criminal case, the respondents are not legally justified in withholding payment of retiral dues of the petitioner. In support of this he has placed reliance upon the decision of this Court In the case of Sur Bihari Mandal V/s. State of Bihar, reported in 2000 (1) PLJR 870 , in which this Court following the principle laid down by the Division Bench in the case of Bajrang Deo Narain Singh V/s. The State of Bihar & Ors., reported in 1999 (3) PLJR 949, held that the power to withhold or withdraw pension is permissible only when the pensioner is convicted of serious crime or found guilty of grave misconduct and not that even during the pendency of such proceeding the said power can be exercised. The Division Bench held that in the absence of any such provision, the State is not authorised to withhold a pension or any part of it and, further, that the pensionary dues payable including gratuity, which is also pension within the meaning of the Bihar Pension Rules, cannot be withheld till such time as an order is passed under Rule 43(b) of the Bihar Pension Rules. It has also been held that similarly, the leave encashment dues also cannot be withheld since that is paid in lieu of unutilised leave and, therefore, partakes the character of salary. 5. In view of the principle decided by the Division Bench, learned counsel for the respondent Bank has not been able to defend the action of the respondents in withholding payments of the dues of the petitioner now for over two years since his retirement. 6. As it is not the case of the respondent Bank that the Managing Director placed the matter for release of the pensionary dues before the Board of Directors and the Board of Directors refused to release the same, this Court finds the action of the Managing Director to be not fair. 7. In the circumstances aforementioned, the writ petition is allowed with a cost of Rs. 2000/- (two thousand) to be paid by the Managing Director from his own pocket to the petitioner. 7. In the circumstances aforementioned, the writ petition is allowed with a cost of Rs. 2000/- (two thousand) to be paid by the Managing Director from his own pocket to the petitioner. The respondents are directed to pay the entire retiral dues and hand over details of the calculation within one week of the receipt/production of a copy of this order. 8. The amount of cost awarded for non-filing of the counter affidavit vide order dated 14.1.2003 has been paid to the learned counsel for the petitioner and a receipt has been filed in that regard, which is being kept on the record.