IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15928 of 2005 DR.BAXI KISHORI RAMAN PD.SINHA Versus THE STATE OF BIHAR & ORS ----------- 6/ 14-07-2008 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Accountant General. After 27½ years in Bihar Medical service the petitioner finally retired on 30.09.2004 while working as Psychiatrist in Patna Medical College Hospital, Patna. Now it is an admitted fact that all the retiral dues, except leave encashment, gratuity and 10% pension, have been paid to the petitioner in the year 2006- 2007. A counter affidavit dated 9.7.2008 has been filed on behalf of respondents 1,2 and 3 stating that the amounts of leave encashment, gratuity and 10% pension has not been made to the petitioner because a departmental proceeding is pending against him with regard to defalcation in purchase of medicine worth Rs. 11, 97, 439 from Medical Store Depot, Kolkata in spite of the Government ban on such purchase. Learned counsel for the petitioner submits that Rule 43(b) of the Bihar Pension Rules, 1950 provides that only the amounts of pension can be withheld in such procedure. Rule 27 of the said Rules provide that pension includes gratuity. He further submits that the resolution of the State Government sent by memo of its Deputy Secretary No. 71 (9) dated 21.8.2006, which is annexed as Annexure- A to the said counter-affidavit, specifically recommended withholding of only pension and gratuity. He submits that the leave encashment is not even mentioned in the said order. - 2 - In the aforesaid facts and circumstances, withholding of the amount of leave encashment of the petitioner is quite illegal and unsustainable in law. Hence the authorities are directed to calculate the leave encashment of the petitioner, give the calculation to the petitioner and pay the same to him within three months from today. So far the amount of gratuity and 10% pension are concerned, learned counsel for the petitioner submits that a writ petition bearing C.W.J.C. No. 3066 of 2006 is pending in this Court in which the departmental proceeding itself is challenged and hence any order with regard to gratuity and 10% pension can be passed only after the disposal of the said writ petition. In the said circumstances, the petitioner is permitted to file an Interlocutory application in the aforesaid writ petition for adding the relief for release of the amount of gratuity and 10% pension of the petitioner which have been withheld on account of the said proceeding. Another grievance of the petitioner is with respect to interest on the amounts already paid to the petitioner and also to interest on leave encashment about which calculation is going to be done. In the said circumstances, the petitioner is at liberty to move before the authority concerned by filing an application before the Deputy Secretary, Health, Medical Education and Family Welfare Department along with relevant materials within four weeks from the date of receipt of the calculation chart from the authorities concerned. If such an application is filed within the aforesaid time, the said authority will decide the same within two months thereafter in - 3 - accordance with law by a speaking order and if any amount is found due, it should be paid to the petitioner immediately thereafter. Let a copy of this order be handed over to Mr. S.R.P. Baxi, learned counsel for the petitioner and learned counsel for the Accountant General. B. Tiwary/ ( S. N. Hussain, J )