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2004 DIGILAW 784 (PAT)

Baliram Pandey v. State Of Bihar

2004-08-04

R.M.PRASAD

body2004
Judgment R.M.Prasad, J. 1. In this writ petition, the petitioner, who retired as an Assistant Engineer while posted at Gaya in the Road Construction Department on 28.2.2003, is aggrieved on account of withholding of 10% pension, full gratuity and leave encashment in view of the fact that a criminal proceeding under Secs. 409, 468 and 469, Indian Penal Code, 1860 is pending since 30th July, 1982 and a departmental proceeding is pending since 14.5.1990, which was, however, stayed by this Court vide order dated 20.5.1992 (Annexure-1) passed in the writ petition, bearing CWJC No. 4329 of 1991 filed by him, till such time the criminal proceeding is not concluded. The Court further directed that if after investigation, no charge sheet is submitted against the petitioner, it will be open to the respondents to proceed with the departmental proceeding. 2. A counter affidavit on behalf of the State and its officials (respondents No. 1 to 4 and 6) has been filed in which it is stated that the vigilance Department has submitted charge sheet against the petitioner, vide charge sheet No. 3/97 dated 26.2.1997, and due to various charges and pendency of criminal case against the petitioner, only 90% provisional pension has been sanctioned and remaining 10% pension, full gratuity and leave encashment of 240 days have been kept pending. It is also stated that the petitioner filed CWJC Nos. 668/96 and 283/97 for quashing the criminal proceeding, but the Hon ble Court did not quash the same. It is further stated that in the light of the direction give in CWJC No. 4329 of 1991, the departmental proceeding against the petitioner has been stayed and consequent upon his superannuation on 28.2.2003, the departmental proceeding was converted into one under Rule 43(b) of the Rules. 3. Learned counsel for the petitioner has contended that now it is almost 22 years that neither the criminal proceeding nor the departmental proceeding has been concluded and the petitioner, in the meanwhile, superannuated from the service on 28th February, 2003, but has been kept denied of 10% of pension, full gratuity and leave encashment. 3. Learned counsel for the petitioner has contended that now it is almost 22 years that neither the criminal proceeding nor the departmental proceeding has been concluded and the petitioner, in the meanwhile, superannuated from the service on 28th February, 2003, but has been kept denied of 10% of pension, full gratuity and leave encashment. According to the learned counsel for the petitioner, there cannot be any justification in withholding of the aforementioned retiral dues of the petitioner on the plea of-pendency of criminal case and the departmental proceeding now for over a decade, for which it is not even alleged that the petitioner in any manner is responsible. Further, learned counsel for the petitioner has produced a photo copy of the recent decision taken in the meeting held on 21.5.2003 under the Chairmanship of the Chief Secretary with respect to disposal of the claim relating to retiral dues, circulated vide memo No. pension koshang-41/03 dated 28,7.2003 to all Commissioners and Secretaries of the Departments/ all Departmental Heads/all Divisional Commissioners/all District Magistrates for information and necessary action, which is being kept on the record. He submitted that according to paragraph 20 of the said decision, if departmental proceeding against a retired employee is continuing or charge sheet has been submitted in the criminal case lodged against him, then 100% provisional pension is to be sanctioned. According to the learned counsel for the petitioner, since the pension is defined in Rule 27 of the Bihar Pension Rules (in short the Rules) and it includes gratuity, the respondent-authorities are not legally justified in withholding of 10% of pension and full gratuity in view of the said recent decision. He further submitted that the Division Bench of this Court comprising Hon ble B.P. Singh (as his Lordship then was) and Hon ble IP, Singh in the case of Bajrang Deo, Narain Sinha V/s. State of Bihar, 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 the rules, cannot be withheld till such time as an order is passed under Rule 43(b) of the Rules. The Division Bench has further held that the leave encashment dues also cannot be withheld since that is paid in lieu of unutilised leave and, therefore, partakes the character of salary. The Division Bench has further held that the leave encashment dues also cannot be withheld since that is paid in lieu of unutilised leave and, therefore, partakes the character of salary. In that view of the matter, the respondents have erred in withholding the said retiral dues of the petitioner. 4. Learned Government Pleader No. I appearing for the respondent-State, on the other hand, submitted that in view of the law settled by this Court in various decisions relying upon the Government decision, validity of withholding of 10% pension, full gratuity and leave encashment payable to the petitioner cannot be assailed. Moreover, he referred to the order passed by this Court in the case of Panchu Mehta V/s. The State of Bihar and Ors., CWJC No. 10985 of 2003 and in the case of Ramkeshwar Ram V/s. The State of Bihar and Ors., CWJC No. 10853 of 2003,. wherein in view of the stand taken that the charge sheet has already been submitted against the respective petitioners in the criminal case and, as such, they are not entitled for payment of such amount untill they are finally acquitted, the said writ petitions were disposed of with liberty to the petitioners to raise their grievance after conclusion of the criminal case. As such, it has been contended that the claim of the petitioner for payment of remaining retiral dues is not at all tenable. In support of his contention learned Government Pleader has placed reliance on a decision of the Division Bench of this Court, in the case of State of Bihar V/s. Ganga Bishun Mahto, reported in 2001 (4) PLJR 435 . 5. I am unable to accept the said submission of the learned Government Pleader No. 1. The learned Government Pleader has not been able to deny about . the existence of the decision, referred to above circulated by the Chief Secretary to all concerned for information and necessary action and, further, directing them that ensuring the aims and directions given therein, they should make available the compliance report to the department. 6. The learned Government Pleader has not been able to deny about . the existence of the decision, referred to above circulated by the Chief Secretary to all concerned for information and necessary action and, further, directing them that ensuring the aims and directions given therein, they should make available the compliance report to the department. 6. In the case of Panchu Mehta and Ramkeshwar Ram (supra), learned counsel for the petitioner had not brought to the notice of this Court about the aforementioned decision circulated by the Chief Secretary on 28.7.2003 and, as such, the writ petitions were finally concluded after recording the stand of the respondents that such dues can be paid only after conclusion of the case. At the time of disposal of the case of Ganga Bishnu Mahto (supra) the said decision dated 28.7.2003 was not there and as such, the Division Bench relying upon the other instructions upheld the validity of withholding of 10% of pension and 10% of gratuity, However, it appears that keeping in view the delay caused in the matter of disposal of criminal case and departmental proceeding and consequently denial of pension, gratuity and leave encashment for indefinite period, the aforementioned decision was obviously circulated by the Chief Secretary to maintain uniformity in the matter of disposal of the claim of the retired Government servants. 7. Thus, this Court finds no valid justification in withholding of 10% of pension, full gratuity and leave encashment of the petitioner during the pendency of criminal case/departmental proceeding, more so in view of the admitted fact that the criminal proceeding is pending now for almost 22 years and the departmental proceeding has been pending now for over 1.4 years. Moreover, in view of the Division Bench judgment of this Court in the case of Bajrang Deo Narain Sinha V/s. State of Bihar (supra), pensionary dues, including gratuity and leave encashment cannot be withheld. 8. In the result, the writ petition is allowed. The respondent-authorities are directed to release the 10% pension, full gratuity and leave encashment, to the petitioner within two weeks, failing which the erring officer will be liable to pay a cost of Rs. 5,000.00 (five thousand) from his own pocket to. the petitioner and the petitioner will be at liberty to file two pages affidavit for initiating action against the erring officer.