Patna High CourtSur Bihari Mandal vs State Of Bihar And Ors. on 5 January, 2000Equivalent citations: 2000(2)BLJR928JUDGMENT
 

Radha Mohan Prasad, J.1. In this writ petition, petitioner is aggrieved on account of non-payment of the remaining 10% of his pension and full gratuity, though he retired from service long back on 31.1.1992.2. From the counter-affidavit filed on behalf of Special Secretary and Deputy Secretary to the Government of Bihar in the Department of Personnel and Administrative Reforms (Respondent Nos. 2 & 3 respectively), it appears that a departmental proceeding was initiated against the petitioner and simultaneously criminal case was also instituted against him hearing Harijan P.S. Patna Case No. 55/85 underSections 419/420/468/465/477/120, I.P.C. The charge against the petitioner is that he was appointed on the basis of his being a Scheduled Caste person which later on inquiry was found that the did not belong to Scheduled Caste. However, the Government decided that till the disposal of-the criminal case, departmental proceeding be stayed. But later by virtue of order dated 16.9.1992 passed in C.W.J.C. No. 8898 of 1991 filed on behalf of the petitioner, proceeding against the petitioner was re-opened. However, nothing has been brought on record to show that departmental inquiry or criminal trial has been concluded. Thus, it is evident that the petitioner has been kept deprived of his aforementioned legitimate dues now for over 8 years only on account of the said pendency of the departmental inquiry/Criminal trial.3. Learned Counsel for the petitioner has submitted that the Action of the Respondents in withholding the payment of the said post-retiral dues is wholly illegal and mala fide. It. has been submitted that the Respondents cannot withhold pension or any part thereof till such time an order is passed under Rule 43(b) of the Bihar Pension Rules. According to the learned Counsel, it is only in the case of proved misconduct that a part or whole of the pension can be withheld. In support of his learned Counsel for the petitioner has placed reliance on the decision of the Division Bench of this Court in the case of Bajrang Deo Narain Singh v. The State of Bihar and Ors. reported in 1999(3) PLJR 949.Learned Counsel further submitted that according to the decision of the apex Court in the case ofThe Garment Cleaning Works, Bombay v. The Workmen, withholding of the amount of gratuity on such plea as taken on behalf of the Respondents is not permissible. In the said case, the apex Court, while dealing with the effect of dismissal due to misconduct held as follows:On principle, if gratuity is earned by an employee for long and meritorious service it is difficult to understand why the benefit thus earned by long and meritorious service should not be available to the employee even though at the end of such service he may have been found guilty of misconduct which entails his dismissal. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer, and when it is once earned it is difficult to understand why it should necessarily be denied to him whatever may be the nature of misconduct for his dismissal. Therefore, the general argument that in all cases where the service of an employee is terminated for misconduct gratuity should not be paid to him, cannot be acceded to.4. On the other hand, learned Counsel for the State submitted that in view of the pendency of serious charge against the petitioner, the Respondents have not been able to release the remaining amount of 10% of pension and gratuity. According to the learned Counsel for the State Rule 43 of the Bihar Pension Rules empowers the State Government for withholding or withdrawing a pension or any part of it if the pensioner is convicted of serious crime or is guilty of grave misconduct. As such, according to the learned Counsel for the State unless the proceeding/criminal prosecution is concluded the Government has power to withhold the said dues of the petitioner.5. This Court is unable to accept the submission of the learned Counsel for the State. Bare reading of the said provision contained in Rule 43(a) of the Bihar Pension Rules, it is evident 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 in the case of--Bajrang Deo Narain Singh (supra) held that in absence of any such provision, the State is not authorised to withhold a pension or any part, of it. It was further held 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 unutilised leave and therefore, partakes the character of salary." As per the definition of pension in Rule 27 of the Bihar Pension Rules, it includes gratuity also.6. Learned Counsel for the State has not been able to show that any such order in terms of Rule 43 has ever been passed against the petitioner. Thus, in absence of such an order, the Respondents are not legally justified in withholding the payment of the aforementioned dues of the petitioner now for almost 8 years.7. Accordingly, the writ petition is allowed. The Respondents are directed to issue necessary sanction order for payment of the said dues within two weeks of the receipt/production of a copy of this order. Accountant-General, Bihar shall issue necessary authority slip for payment of the said dues within one week of the receipt of the sanction order, In the facts and circumstances of the case, there shall be no order as to costs.