ORAL ORDER Heard learned counsel for the parties. 2. Learned counsel for the petitioner has approached this Court for a direction to the respondents to pay 10% pension, full gratuity and leave encashment which have not been paid to the petitioner after his retirement from service on 31.1.2011. 3. The short facts of the case are that the petitioner had been made an accused in Special Case (A.H.D.) No. RC 63/96 and the said case remained pending till the petitioner superannuated from service as Deputy Secretary in the Department of Environment and Forest, Govt. of Bihar on 31.1.2011. The proceeding is still continuing after his superannuation and his post retiral dues have been paid to him except 10% pension and the whole of gratuity and leave encashment amount. 4. Learned counsel for the petitioner submits that in view of the provisions of Rule 43(b) of the Bihar Pension Rules, there is no power in the State Government to withhold any amount of pension unless upon the conclusion of the proceedings and finding the petitioner guilty of misconduct, an order is passed withholding pension or part of pension of the petitioner. It is urged that since the proceeding has not been concluded and there is no such power under the provisions of Rule 43(b) of the Bihar Pension Rules, withholding 10% pension amount is not justified. 5. It is further submitted that since the proceeding is not concluded, gratuity amount also cannot be withheld. 6. It is also contended that since the leave encashment amount is in the nature of salary payable to the petitioner, the same cannot also be withheld. 7. In support of the aforesaid proposition, learned counsel for the petitioner relies upon a decision of a Division Bench of this Court in the case of Bajrang Deo Narain Sinha Vs. The State of Bihar: 1999 (3) PLJR-949. In paras 4,5 and 6 of the said decision it has been held as follows:- “4. He relied upon a decision of the Supreme Court reported in AIR 1990 Supreme Court 1923 (D.V. Kapoor Vs. Union of India & ors.) for the principle that unless the pensioner is found guilty of misconduct in a departmental or a judicial proceeding, any part of his pension cannot be withheld. He relied upon a decision of the Supreme Court reported in AIR 1990 Supreme Court 1923 (D.V. Kapoor Vs. Union of India & ors.) for the principle that unless the pensioner is found guilty of misconduct in a departmental or a judicial proceeding, any part of his pension cannot be withheld. In that case, the Supreme Court was considering Rule 9 of the Civil Services Pension Rules, 1972 which is in para material with Rule 43(b) of the Bihar Pneison Rules. This Court has also taken the same view in several decisions including the decision in CWJC No. 7315 of 1995 decided on 4.9.1996 and in State of Bihar & Ors. Vs. Idris Ansari (1995 AIR SCW 2886). Apart from decisions, the rule is quite clear, and it is only in the case of proved misconduct that a part or whole of pension can be withheld. 5. It is also not disputed before us that no order has been passed under Rule 43(b) of the Bihar Pension Rules, and therefore, in the absence of such an order, the State is not authorized to withhold a pension or any part of it. 6. We are, therefore, of the view that the pensionary dues payable to the appellant 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. Similarly, the leave encashment dues also cannot be withheld since that is paid in lieu of unutilized leave and therefore partakes the character of salary.” 8. Learned counsel also refers to the decision of a three Judges Bench of the Supreme Court in the case of Jarnail Singh Vs. The Secreary, Ministry of Home Affairs and others: AIR 1994 SC 1484 , in paras 7, 8 and 9 of which it has been held as follows:- “7. Learned counsel for the appellant placed strong reliance on the decision in D. V. Kapoor v. Union of India (1990) 4 SCC 314 : ( AIR 1990 SC 1923 ). It was held in that case that the exercise of power by the President under R. 9 is hedged with the condition that a finding should be recorded either in the departmental inquiry or a judicial proceeding that the person had committed grave misconduct etc. It was held in that case that the exercise of power by the President under R. 9 is hedged with the condition that a finding should be recorded either in the departmental inquiry or a judicial proceeding that the person had committed grave misconduct etc. in the discharge of his duty while in office; and in the absence of such a finding, the President has no authority to impose the penalty of withholding the pension or to order recovery of the pecuniary loss. There was no such clear finding recorded in that case. That decision was based primarily on this point which was sufficient to sustain the conclusion reached. However, in para 10 (SCC) of that judgment, it was further said that no provision of law was shown to indicate that the President is empowered to withhold gratuity as well. It is, therefore, clear that the definition of the term 'pension' in R. 3(1)(o) was not brought to the notice of the Bench deciding D. V. Kapoor's case, which omission led to the making of this further observation after holding that the condition precedent for exercise of the power was absent. We are, therefore, with respect, unable to agree with this further observation in D. V. Kapoor to the effect that the power of the President in R. 9 prior to its amendment in 1991, was confined only to withholding pension and it did not extend to gratuity as well. 8. Another decision relied on by learned counsel for the appellant is F. R. Jesuratnam V. Union of India, 1990 (Supp) SCC 640. In that case, there is no discussion and the conclusion alone is stated. For the reasons we have already given, we cannot persuade ourselves to concur with the view that prior to the 1991 Amendment there was no legal provision empowering the authorities to forfeit the gratuity payable to an employee. In both these decisions, this conclusion was reached without any reference to, and consideration of, the definition of the term 'pension' in R. 3(1)(o) quoted above. Accordingly, we regret our inability to concur with that view. Obviously, it is these decisions which led to the aforesaid clarificatory amendment of R. 9(1) in 1991. 9. Reference to some other provisions in the Central Civil Services (Pension) Rules, 1972 supports the view we have taken. Accordingly, we regret our inability to concur with that view. Obviously, it is these decisions which led to the aforesaid clarificatory amendment of R. 9(1) in 1991. 9. Reference to some other provisions in the Central Civil Services (Pension) Rules, 1972 supports the view we have taken. Rule 69(1)(c) provides that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. This provision is indicative of the power to withhold payment of gratuity and its payment being subject to the final outcome of any pending departmental or judicial proceeding against the Government servant. Rules 71 and 73 relating to recovery and adjustment of Government dues and the express provision in R. 73(3) for adjustment of dues against the amount of death-cum-retirement gratuity payable to the Government servant also reinforce this conclusion. Article 366 of the Constitution of India contains the definitions for the purpose of the Constitution and there in clause (17) is defined 'pension' to include gratuity as well. This definition of 'pension' in the Constitution also indicates that conceptually the term 'pension' includes gratuity. In Rule 3(1)(o) of the Central Civil Services (Pension) Rules, 1972, the term 'pension' is defined to include gratuity except when the term 'pension' is used in contradiction to gratuity, in consonance with the basic concept. The contention of the appellant was, therefore, rightly rejected by the Tribunal.” 9. The contention of learned counsel is that there is no such provision like Rule 69 (1) (c) of the Central Civil Services (Pension) Rules, 1972 under the Bihar Pension Rules and thus the entire gratuity cannot be withheld in the absence of any specific provision in that regard under the Bihar Pension Rules. 10. It is also the contention of learned counsel for the petitioner that, in any view of the matter, a criminal case is different from a departmental proceeding in the sense that under the Bihar Pension Rules the departmental proceeding shall be converted into a proceeding under Rule 43(b) after the retirement but there is no such provision with respect to a criminal case and mere continuance of the case against the petitioner cannot be used for depriving the petitioner of his pension, gratuity and leave encashment. 11. 11. Learned counsel for the State, on the other hand, submits that the decision in the case of Bajrang Deo Narain Sinha (supra) by the Division Bench is based upon a decision of the Supreme Court in D. V. Kapoor Vs. Union of India & Ors: AIR, 1990 SC 1923 which has been overruled by the larger Bench of the Apex Court in Jarnail Singh’s case (supra) cited by learned counsel for the petitioner himself. 12. Learned counsel also submits that the decision in Bajrang Deo Narain Sinha’s case (supra) has been stated to have been referred to a larger Bench in CWJC No. 13803/2002 Kunj Bihari Thakur V. The State of Bihar & Ors. which fact has been referred to in the order dated 22.3.2005 of a learned Single Judge of this Court in CWJC No. 13342/2002 (Arjun Trivedi Vs. Food Corporation of India & Ors.): 2005(2) PLJR 459 and that case was also referred to a larger Bench along with the said case. 13. He also relies on the Circular Letter No. 9144 dated 22.8.1974 which provides for payment of 75% provisional pension where departmental or judicial proceedings are pending against the retired employee and also provides for withholding of the full amount of gratuity. The provisional pension was revised to 90% by the Resolution No. 3014 dated 31.7.1980 of the State Government. With respect to withholding of entire leave encashment learned counsel relies upon the Circular letter No. 4564 dated 6.7.1993. 14. The issue raised in the present matter was directly under consideration in an earlier Division Bench judgment of this Court in the case of Ram Bahadur Sinha Vs. The State of Bihar & ors.: 1994(2) PLJR 724, in paras 6, 8, 10 and 11 of which it has been held as follows:- “6. There can be no dispute that departmental or judicial proceeding for the purpose of exercise of power under Rule 43(b) can be initiated within the parameters of the restrictive provisions as contained in the Proviso and the Explanation to the Rule. There cannot be any dispute either that withholdment or withdrawal of the amount of pension or its recovery as a measure of punishment can be made only after the person concerned has actually been found guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during the tenure of his service. There cannot be any dispute either that withholdment or withdrawal of the amount of pension or its recovery as a measure of punishment can be made only after the person concerned has actually been found guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during the tenure of his service. The question for consideration, however, is 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 proceeding has already been instituted or where a decision to institute the same has already been taken. The answer in my opinion has to be in the affirmative, 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 in 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 Subordinate Services ( Discipline and Appeal) Rules, 1935, is not penal in nature. Just as an order of 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. The contention that pension cannot be withheld without recording a finding in respect of misconduct or negligence in a departmental or judicial proceeding, thus, cannot be accepted. 8. While upholding power of the State Government to withhold whole or part of pension as an interim measure, the need of a retired Government servant to get his due in time cannot be undermined. The income of a Government employee upon his retirement comes to zero. 8. While upholding power of the State Government to withhold whole or part of pension as an interim measure, the need of a retired Government servant to get his due in time cannot be undermined. The income of a Government employee upon his retirement comes to zero. A Government employee facing departmental or criminal proceeding or suspension during the tenure of his service is entitled to certain allowances but he may not get anything during the entire course of departmental or judicial proceeding under Rule 43(b) after his retirement. This may make his survival difficult. Therefore, while conceding the power to the State Government to withhold whole of the amount of pension, I must observe that the said power should be resorted to only in rarest of the rare cases. Ordinarily and generally where the allegations are not serious, only 10% pension should be withheld as provided in the government circulars on the point. In more serious cases, of course, the Government may consider withholding more amount. Needless to say that while taking decision in the matter of release of provisional pension or withholding part of it, the Government is expected to consider the matter objectively and judiciously. 10. Now I shall take up second point, namely, whether gratuity too can be withheld either as a measure of punishment upon adverse finding in a departmental or judicial proceeding within the meaning of Rule 43(b) or as an interim measure pending such proceeding. Rule 43(b), no doubt, does not in terms refer to “gratuity”. That, in my opinion, is not be-all and end-all matter. As would appear from the definition clause under Rule 27 of the Pension Rules, pension includes gratuity. The same definition has been given to the term in the Bihar Service Code under Rule 35. In Jarnail Singh V. The Secretary, Ministry of Home Affairs (supra) their Lordships had occasion to consider the same question in the context of Rule 9 of the Central Pension Rules, the material part of which reads as under:- “9. The same definition has been given to the term in the Bihar Service Code under Rule 35. In Jarnail Singh V. The Secretary, Ministry of Home Affairs (supra) their Lordships had occasion to consider the same question in the context of Rule 9 of the Central Pension Rules, the material part of which reads as under:- “9. Right of President to withhold or withdraw pension.- (1) The President reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement. The definition of the term “pension” in the Central Rules is as follows: “Pension includes gratuity except when the term pension is used in contradistinction to gratuity”. 11. It would appear that while Rule 9 of the Central Rules in 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. The point, thus, in my opinion, is fully covered by the above decision of the Apex Court.” 15. The point, thus, in my opinion, is fully covered by the above decision of the Apex Court.” 15. Thus, in the aforesaid decision the earlier Division Bench had clearly held that both pension and gratuity can be withheld not only after the conclusion of departmental or judicial proceedings and passing of a final order under Rule 43(b) of the Bihar Pension Rules but also as an interim measure. The subsequent judgment of the Division Bench of this Court in Bajrang Deo Narain Sinha while holding differently did not refer to the earlier Division Bench decision in Ram Bahadur Sinha’s case (supra). 16. Bajrang Deo Narain Sinha’s case (supra) came up for consideration before another Division Bench of this Court in State of Bihar & Ors. Vs. Ganga Bishun Mahto & Ors.: 2001(4) PLJR 435 in which the issue of withholding of pension, gratuity and leave encashment as an interim measure again came up for consideration. In paras 17,21,22 and 25 of the said decision it has been laid down as follows:- “17. From perusal of the decision in the case of Bajrang Deo Narain Sinha (supra), it appears that the aforesaid instructions of the years 1970, 1974 and 1980 which contained provision for payment of provisional pension during pendency of the proceeding for the purpose of withholding pension etc. were not referred to nor noticed and thus the question as to whether the provisions contained in the aforesaid executive instruction are valid or not, was not at all subject matter of the decision in that case, and as such the said case is not an authority on the point that the aforesaid executive instruction cannot be given effect to being in conflict with the statutory provision contained under rule 43(b) or rule 139 of the Rules. 21. Thus, the settled law is that the executive instructions cannot supersede or supplant the rules, but they can fill up the gaps in the statutory rules, if the rules are silent on the matter in issue. 22. In the present case, as stated above, the pension rules are silent with regard to payment of retiral dues to the employees on superannuation against whom the proceeding is pending and it has not come to final conclusion. To meet that situation, instructions have been issued that provisional pension has to be paid in such a situation. 22. In the present case, as stated above, the pension rules are silent with regard to payment of retiral dues to the employees on superannuation against whom the proceeding is pending and it has not come to final conclusion. To meet that situation, instructions have been issued that provisional pension has to be paid in such a situation. After the proceeding is concluded, a final decision with regard to final pension is to be taken in terms of the finding arrived at by the disciplinary authority. It was also provided inter alia that even if the pension is reduced, or fixed at a level lower than the provisional pension, no recovery would be made from the concerned employee. Thus, the aforesaid provisions are for benefit of the employees and are supplemental to the rules and they are not in conflict or inconsistent with the Rules. In case of pendency of the proceeding after superannuation, the concerned authority can not take a final decision under Rule 139 regarding the satisfactory service and in such situation there would be delay in payment of retiral dues to the superannuated employee. To meet the said situation and to mitigate the hardships to the retired employees, the said provision has been made. Accordingly, the view taken by the learned Single Judge in the case of Satyendra Narain Sinha @ Dr. Satyendra Narain Sinha (supra) on which he has relied upon in allowing the writ application is not correct. 25. In the result, the appeal is allowed and the order of the learned Single Judge is set aside in part. Direction for payment of full amount of G.P.F. is not interfered with. However, respondent No. 1 shall be paid provisional pension till the conclusion of the proceeding. If the proceedings are concluded, then the decision with regard to final pension which includes gratuity in terms of Rule 27 of the Rules is to be taken. Regarding commutation of pension as we have already said that if respondent No. 1 has applied for commutation of pension, then his case is to be considered in accordance with Chapter XII of the Pension Rules. However, if the respondent No. 1 has not applied for commutation of pension, then he may apply for the same and thereafter the Government will take decision in accordance with law.” 17. CWJC No. 13803/2002 (Kunj Bihari Thakur Vs. However, if the respondent No. 1 has not applied for commutation of pension, then he may apply for the same and thereafter the Government will take decision in accordance with law.” 17. CWJC No. 13803/2002 (Kunj Bihari Thakur Vs. The State of Bihar & ors.) when it was placed before a Full Bench of this Court then by order dated 18.12.2008 it was observed by the Full Bench that the expression “Larger Bench” referred to by the learned Single Judge would mean the Division Bench. Accordingly, the matter was directed to be placed before a Division Bench. The Division Bench by its order dated 24.2.2009 held as follows:- “The law regarding payment of part pension and gratuity and right of the Government to withhold part of the same against a retired employee against whom there is criminal or departmental action pending has been well settled in AIR 1994 SC 1484 (Jarnail Singh V. The Secretary, Ministry of Home Affairs). Following the said judgment a Division Bench of this Court has also so held in the case of State of Bihar V. Ganga Bishun Mahto, 2001(4) PLJR 435 . In that view of the matter, the prayer of the writ petitioner that he is entitled for payment of entire pension and gratuity has to be rejected. Another prayer has been made that at least cash in lieu of unutilized earned leave should be ordered to be paid to the petitioner because it is not a part of pension or gratuity. Learned Advocate General has placed reliance upon a policy decision of the State Government contained in circular letter bearing no. 4564 dated 6th July, 1993 (Annexure-E) and specific order of the competent authority against the petitioner dated 2.9.2002 (Annexure-F) and has submitted that since the relevant rules are silent, hence by policy decision it has been decided that in cases such as that of the petitioner where disciplinary/criminal proceeding is pending and there is possibility of an order for recovery of financial loss caused to the Government, such dues of the retired employee can also be withheld. It was also pointed out that in the aforesaid case of State of Bihar V. Ganga Bishun Mahto (supra), the Division Bench has approved such course of action on the general principle that where rules are silent, executive instructions can be issued in similar matters. It was also pointed out that in the aforesaid case of State of Bihar V. Ganga Bishun Mahto (supra), the Division Bench has approved such course of action on the general principle that where rules are silent, executive instructions can be issued in similar matters. In the facts and circumstances of the case, we find no merit in the writ petition. It is accordingly dismissed.” 19. On a consideration of the aforesaid decisions of the Division Bench in the cases of Ram Bahadur Sinha(supra), Ganga Bishun Mahto (supra) and Kunj Bihari Thakur (supra) it is evident that the issue raised herein by the petitioner has been settled by three Division Benches of this Court which have held that it is open to the State Government, during the pendency of departmental or criminal proceedings, to withhold the full amount of gratuity and leave encashment and part of pension in terms of the executive instructions issued by the State Government from time to time which are not opposed to the statutory rules under Rule 43(b) of the Bihar Pension Rules rather they fill up the gaps and are supplementary in nature and therefore fully effective and valid. 20. The submission of learned counsel for the petitioner that criminal proceedings stand on different footing because like departmental proceeding they cannot be converted into a proceeding under Rule 43(b) of the Bihar Pension Rules is without any basis. The only reason for such conversion of departmental proceedings into a proceeding for the withholding of pension is that after the retirement of a Government servant the relationship of master and servant ceases between the State Government and the Government servant and thus it is not open to the State Government to impose any penalty whether major or minor of the nature contemplated in the Service and Discipline Rules. For the said reason provision has been made for the continuance of departmental proceedings only for the purpose of withholding or withdrawing the whole or part of the pension but no such requirement is there so far as a criminal proceeding is concerned as the criminal proceeding continues on its own force and the purpose of such proceedings is to find out the guilt or innocence of the accused. Based upon such findings of guilt of the accused, the State Government has been empowered under the Bihar Pension Rules to withdraw the whole or any part of the pension. The distinction sought to be drawn by learned counsel for the petitioner between the two proceedings is wholly irrelevant. 21. I may also refer here to the fact that learned counsel for the petitioner has also cited various reported and unreported decisions of several learned Single Judges of this Court in support of his stand. The said decisions rely upon other decisions of other learned Single Judges or on the Division Bench decision of this Court in Bajrang Deo Narain Sinha’s case (supra) which has been distinguished by this Court in Ganga Bishun Mahto’s case (supra), and are also contrary to the Division Bench decisions in Ram Bahadur Singh (supra) and Kunj Bihari Thakur (supra). 22. Thus, in the light of the aforesaid decisions and on a consideration of the facts and circumstances of the case, I am of the view that no interference is called for with the action of the respondents withholding 10% pension and full gratuity and leave encashment of the petitioner. 23. The writ application is, accordingly, dismissed.