IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7753 of 2005 BRAHMANAND S/o- Late Ram Pratap, Resident of village-Kariyapur Rawat, Post-Bhawanipur, Via-Mahson, Polcie Station-Kotwali (Basti), District-Basti (Utter Pradesh) Present Address:-House No.-1544, North Awas Vikas Colony, Mohalla- Satyawanpuri, Post- Gandhi Nagar, Police Station-Kotwali (Basti), District-Basti(Uttar Pradesh) Versus 1. THE STATE OF BIHAR 2. The Chief Secretary, Govt. of Bihar, Patna. 3. The Agriculture Production Commissioner, Bihar, Patna. 4. The Director of Agriculture, Department of Agriculture, Bihar, Patna. 5. The Deputy Secretary, Department of Agriculture, Bihar, Patna. 6. The Sub-Divisional Agriculture Officer, Samastipur. ----------- 7 05.03.2010 Heard Mr. Ajeet Kumar, learned counsel appearing on behalf of the petitioner and Mr. Kumar Alok, learned Standing Counsel No. 19 for the State. The petitioner superannuated from the post of Agriculture Extension Officer, Kalyanpur, Samastipur on 30.06.2001. A departmental proceeding and a criminal case was instituted against the petitioner on the self same charges regarding certain financial irregularities. Although the departmental enquiry initiated against the petitioner resulted in exoneration vide order dated 22.9.2003 (Annexure-1), the criminal case was registered as Vigilance Case No. 3111 of 1997. 2 It also appears that although the department released the entire retiral benefits in favour of the petitioner but 10% of pension and 10% gratuity were withheld by the authorities on grounds of the pending vigilance case. Learned counsel for the petitioner submits that the only power to the authorities to withhold the said amount after the retirement of the petitioner on 30.6.2001 can be found in Rule 43(b) of the Bihar Pension Rules (herein after referred to as the ‘Rules’). He further submits that under the circumstances that the departmental enquiry resulted in his exoneration and in the judicial proceeding no chargesheet has been submitted against the petitioner, no proceeding as envisaged under the rules can be said to be pending against the petitioner. He submits that in such circumstances, the withholding of the 10% amount of the pension and gratuity by the authorities is per se illegal contrary to the Rules and thus unsustainable in law. Learned counsel thus submits that he is entitled for the payment of the said amounts. Learned counsel further submits that there are certain other amount towards travelling allowance, 3 medical allowance pertaining to his wife and some other bills which are also pending before the authorities. Mr. Kumar Alok learned counsel appearing on behalf of the State submits that as to his information, chargesheet has been submitted against the petitioner in the vigilance case in July 2009 and in which view there is no infirmity in the action of the authorities in withholding the amounts in question. Learned counsel for the State further relying upon the circular of the Finance Department No. 3014 dated 31.7.1980 submits that it is well within the jurisdiction of the authorities to withhold 10% of the pension and gratuity of such retired employee against whom any judicial proceeding pending. He thus submits that as the chargesheet has been submitted against the petitioner hence the action of the authorities is fully supported by the Rules. Mr. Ajeet Kumar, learned counsel for the petitioner submits that the he has filed a supplementary affidavit today enclosing the ordersheet of the Vigilance Court placed at Annexure-15 of the supplementary affidavit. He 4 with reference to the ordersheet submits that as until 10.12.2009, the final form is yet to be submitted before the Vigilance Court and in this view the statement of the respondent authorities that chargesheet has been submitted against him is not correct. Although learned State counsel disputes the position but a perusal of the ordersheet indisputably shows that final form has not been submitted before the Vigilance Court by the prosecuting agency. In such situation no judicial proceeding under the Rules can be said to be pending against the petitioner. The action of the authorities is further unsupportable for the reason that no order has been passed by the authorities concerned in withholding 10% pension and gratuity of the petitioner. Nodoubt the authorities under the rules are appropriately empowered to withhold the said sum in case any departmental or judicial proceeding is pending under the rules but the same has to be done by a positive act. No such order withholding the said amounts have been brought on record and could not have been passed for the reason that the petitioner stood exonerated in the 5 departmental proceeding and the chargesheet was yet to be submitted against him and in which view no power flowed to the authorities in withholding the amounts in question. Until such time that chargesheet is submitted against the petitioner and there is a positive order withholding the 10% pension and gratuity of the petitioner, the respondents cannot be permitted to withhold the amounts in question. Considering the circumstances set forth the action of the respondents in withholding the amount(s) is question is not sustainable and the respondents are directed to forthwith release the pending pension and gratuity amount of the petitioner together with its arrears thereof within a period of three months from today. In so far as his claim for travelling and medical allowances is concerned, the petitioner would be at liberty to raise his claim before the authorities concerned who shall consider and dispose of the same in accordance with law. The writ petition is allowed with the direction aforesaid. Bibhash (Jyoti Saran, J.)