IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8157 of 2005 BHOLA MAHTO, Son of Late Rewt Mahto, Resident of village-Manikpur, P.S. Suryagarh, District Lakhisarai, Retired Plant Protection Supervisor at Munger. Versus 1. THE STATE OF BIHAR through the Agriculture Production Commissioner, Bihar, New Secretariat, Patna 2. The Director of Agriculture, Bihar, New Secretariat, Patna. 3. The Joint Director of Agriculture (Plant Protection) Bihar Mithapur Farm, Patna. 4. The Junior Plant Protection Officer, Munger. 5. the Accountant General, Bihar, Patna. 6. The District Provident Fund Officer, Munger. ----------- 3 18.02.2010 Heard Mr. Deo Nath Prasad learned counsel appearing on behalf of the petitioner, Mr. Amit learned A.C. to S.C. 19 for the State and counsel for the Accountant General. The situation as stands today is that the petitioner is drawing 90% pension but his balance 10 % of the pension, entire gratuity and his unutilised leave salary has been withheld by the respondents on the grounds of pending criminal proceeding arising from Barhaiya P.S. Case No. 57 of 2001 instituted under Sections 409 of the Indian Penal Code. Facts in brief is that the petitioner was working as a supervisor and superannuated from Government service with effect from 31.10.2003. The petitioner had come before 2 this Court through C.W.J.C. No. 4153 of 2004 which was disposed of by a general order directing the respondents to pay the admissible retiral benefits and pursuant whereto other benefits were granted but 10% pension, entire gratuity and unutilized leave salary was withheld by the respondent authorities of the State Government on the ground of pending criminal case against the petitioner. Learned counsel submits that even in absence of any order being passed withholding the amounts, the justful claims of the petitioner have remained unpaid and it is an abuse of the powers by the executive. Mr. Amit learned counsel representing the State and its authorities submits that the action has been taken by the concerned authorities of the State Government in the light of the provisions of Rule 43(b) of the Bihar Pension Rules 1950 (hereinafter referred to as the ‘Rules’) and the relevant circulars issued in this regard. Learned counsel in support of his contentions, referred to a circular dated 31.10.1974 placed at Annexure-B series of the counter affidavit filed on behalf of the 3 respondent No. 4 and submits that in view of the stipulations made in the said circular the petitioner was only entitled to 75% of his pension and no amount towards his gratuity. In support of the action of the authorities in withholding the unutilized leave amount, learned counsel for the State refers to a Circular dated 6.7.1993 placed at Annexure-B series, which according to learned counsel, appropriately empowered the respondent authorities to withhold the leave encashment amount of the petitioner during the pendency of the criminal proceedings. Learned counsel for the Accountant General submits that initially authorization was issued for 100% pension and gratuity and but in view of the developments which came to be noticed a revised authorization was issued by the Accountant General in the light of the sanction accorded by the department. I have heard the learned counsel for the parties, the rival contentions advanced and considered the relevant materials on record. Rule 43(b) no doubt empowers the authorities of the State Government to withhold part or the entire pension and gratuity of a 4 retiring employee against whom a departmental proceeding or judicial proceeding is pending and has been instituted within the parameters set out therein. There are certain circulars issued for effectuating the said rule. One of such circular is the circular dated 31.10.1974 relied upon by the learned counsel appearing on behalf of the State placed at Annexure-B series. By a subsequent circular of the State Government bearing no. 3014 dated 31.7.1980, the quantum of pension admissible to a retired employee against whom any proceeding under Rule 43(b) was pending, was also enhanced to 90%. In fact in view of the above, provisional pension of the petitioner was also enhanced to 90% and which is being paid by the department. No doubt following the stipulations made in the circular of 1980 the respondents have modified and enhanced the provisional pension of the petitioner to 90% but they have arbitrarily held on to his gratuity amount and which is impermissible. Rule 27 of the rules clearly stipulates that pension includes gratuity. The natural consequence would be that the enhancement of admissibility of pension to 90% would include gratuity also and in that view 5 the petitioner would also be entitled to 90% gratuity during the pendency of the criminal proceeding. The unutilized leave salary is an element which is earned by a Government employee for the services rendered in the department and it is salary earned. The element of leave salary to which the petitioner is entitled cannot be withheld by invoking the circular of 1993 which is not inconformity with the stipulations made under Rule 43(b) of the Rules. Once the person has retired then the only action which can be taken against him is under pension rules and the relevant provisions of Rule 43(b) only empowers the authorities to withhold part or whole pension or gratuity of the retired employee. The said rule does not in any manner extend the power to withhold unutilized leave salary. My opinion aforesaid finds supports from a Division Bench judgment of this Court reported in 1999(3) PLJR 949 (Bajrang Deo Narain Sinha versus the State of Bihar & Ors.) in which it has been held that the unutilized leave salary of the retired employee cannot be withheld by the authorities of the State Government in purported exercise of power under 6 the Rules for the reason that the Rules nowhere empowers them to withhold the said amount. Even though no order has been produced during the course of proceeding or found in either of the affidavits filed by the respondent authorities withholding 10% pension and gratuity of the petitioner but in view of the accompanying circumstances and the relevant circulars discussed in this order, I am of the opinion that ends of justice would be served in permitting the authorities to keep the payment of 10% pension and 10 % gratuity of the petitioner in abeyance during the pendency of the criminal proceeding but they are duty bound to release the remaining 90% of the gratuity of the petitioner. In the circumstances, this writ petition is allowed with the direction to the respondents to release 90% of the gratuity amount of the petitioner together with entire unutilized leave salary as admissible to him within a period of three months from the date of receipt/production of a copy of this order. This writ petition is disposed of. Bibhash (Jyoti Saran, J. )