IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14921 of 2007 Ram Nandan Singh, Son of Late Jagdish Singh, Resident of Village – Ramubigha, Police Station- Bihta, District - Patna. …………………………… Petitioner Versus 1. The Bihar State Electricity Board, through its Chairman, Vidyut Bhawan, Patna. (Hereinafter referred to as Electricity Board). 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Patna. 3. The Secretary, Bihar State Electricity Board, Patna. 4. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna. 5. The Finance Controller (Accounts) Bihar State Electricity Board, Vidyut Bhawan, Patna. 6. The General Manager-cum-Chief Engineer, Central Bihar Area, Electricity Board, Patna. 7. The Deputy Director of Accounts, Central Bihar Area Electricity Board, Patna. 8. The Electrical Executive Engineer, Electric Supply Division, Bihta. …………….. Respondents ----------- 2 05.08.2011 Heard Sri Ajey Kumar, learned counsel for the petitioner and Sri Vijay Kumar Verma, learned counsel appearing on behalf of all the Respondents/Bihar State Electricity Board. The petitioner, who retired with effect from 31.08.2006 as Account Assistant from the Office of Electric Supply Sub-Division, Punpun under Bihar Electric Supply Division has prayed for directing the Respondents to pay him full pension, pay 10% of arrear pension which has not been paid till date, amount of G.P.F., gratuity and leave encashment with statutory interest. In this case a counter affidavit has been filed on behalf of all the Respondents on 29.07.2011 and it has been indicated that during the pendency of the writ petition leave encashment to the tune of Rs. 1,03,307/- has been paid vide cheque dated 04.02.2009. Similarly amount under the head of G.S.S. to the tune of Rs. 57,556/- was paid vide cheque dated 26.03.2007. The G.P.F. amount to the 2 tune of Rs. 3,66,747/- has been paid to the petitioner vide cheque dated 14.02.2008. Pension arrear to the tune of Rs. 40,445/- vide cheque dated 04.07.2007 has already been paid. So far as full pension and gratuity is concerned, stand has been taken by the Respondent/Board in its counter affidavit that one criminal case vide Bihta P.S. Case No. 239 of 2000 was pending. However, it has been indicated in subsequent paragraph that on enquiry it has come to know that in Bihta P.S. Case No. 239 of 2000 case was not found true against him. A further plea has been taken by Respondent that only 90% provisional pension has been sanctioned and full pension was not sanctioned in view of a letter issued by General Manager-cum-Chief Engineer, Central Electric Supply Area, Patna dated 17.09.1992. Of- course in the counter affidavit no detail has been mentioned but on perusal of Annexure –A to the counter affidavit i.e. Memo No. 5940 dated 17.09.1992 it appears that the petitioner was put under suspension due to the reason that he was arrested in a case and it was made clear that regarding salary for the suspension period decision will be taken after conclusion of criminal case by the concerned court. No case no. has been indicated either in the counter affidavit or in Annexure –A to the counter affidavit. In this case a rejoinder to the counter affidavit has also been filed on behalf of petitioner and in paragraph no. 7 of the same it has been indicated that in 1992 a case vide Bihta P.S. Case No. 17 of 1992 was registered in which petitioner was made accused for the offence under Sections 307 and other allied Sections of the Indian Penal Code and 27 of the Arms Act. It has 3 further been indicated that the said case was instituted due to village politics by the Gotias of the petitioner and that too the said case was instituted about twenty (20) years back. Learned counsel for the Respondent-Board has argued that since criminal case is pending against the petitioner full pension and gratuity has not been sanctioned till date and it will await the decision by the concerned court in the criminal case. Sri Ajey Kumar, learned counsel for the petitioner submits that the criminal case which was instituted by the Gotias/ relatives of the petitioner has got no connection with the discharge of official duties of the petitioner. It was submitted that even if had it been a case in relation to discharge of official duty without final verdict by the criminal court the Respondent authorities were not authorized to withhold even 10% of the pension as well as gratuity. In support of his argument learned counsel for the petitioner has placed reliance on 2005(2) PLJR 114 (Bindeshwar Narain Srivastava Vs State of Bihar). Referring the said judgment he submits that in the case of Bindeshwar Narain Srivastava (Supra) he was made accused in relation to discharge of his official duty and this court relying on a Division Bench judgment of this court in a case reported in 1999(3) PLJR 949 (Bajrang Deo Narain Sinha Vs State of Bihar) has held that unless in a criminal case an employee is held guilty by the competent court the employer cannot withhold pension. It was further submitted that in 2003 the Government of the State of Bihar had come out with a Resolution which also makes it clear that even in case of pendency of 4 criminal cases or departmental proceeding 100% pension can be authorized. Learned counsel for the petitioner has referred to Annexure -3 to rejoinder to the counter affidavit filed by the petitioner i.e. Resolution dated 21.05.2003. In paragraph no. 20 of the said Resolution it has been indicated that even if a departmental proceeding is continuing against a Government employee or a criminal case in which charge sheet has already been filed, even in that case 100% provisional pension can be sanctioned. On aforesaid grounds it has been prayed to direct the Respondents to authorize 100% provisional pension even during the pendency of the criminal case and also for payment of arrear of 10% of the pension and gratuity with statutory interest. Besides hearing learned counsel for the parties I have also perused the materials available on record. It is not in dispute that petitioner has been made an accused in a criminal case but fact remains that accusation in the said case has got no relation with the discharge of official duty. In such a situation the court is of the opinion that the Respondent-Board has committed error in not sanctioning 100% pension and gratuity to the petitioner. In Bindeshwar Narain Srivastava’s Case (Supra) a single Bench of this court has categorically held that even in case in which an employee is made accused on accusation of discharge of official duty 100% provisional pension can be sanctioned. It would be appropriate to quote paragraph nos. 5 & 6 of the judgment of 5 Bindeshwar Narain Srivastava’s Case (Supra) which is as follows:- “5. Learned counsel appearing on behalf of the respondents has drawn my attention to an order of a learned single Judge of this Court dated 14th February, 2005 whereby the learned Judge directed that the payment of balance amount of the pensionary benefit to the pensioner shall abide by the criminal proceeding. While, however, issuing that direction, the learned Judge did not take notice of the applicable rules, the latest circular of the government and the judgment of the Division Bench referred to above. The order so cited by the learned counsel for the respondents has, therefore, no precedential value. On the other hand, learned counsel for the petitioner has cited a judgment of yet another learned single Judge of this court delivered in the case of Baliram Pandey vs The State of Bihar and others reported in 2004(4) PLJR 5 wherein the learned Judge not only took note of the aforementioned judgment of this court as well as the said decision of the Government communicated through the Chief Secretary of the Government but the learned Judge in that case also took note of yet another decision of the Division Bench of this court delivered in the case of State of Bihar vs. Ganga Bishun Mahto reported in 2001(4) PLJR 435 which somehow relied on certain Government circulars without relying upon the statutory rules and therefore, somewhat went against the Division Bench judgment of this Court rendered in Bajrang Deo Narain Singh vs. State of Bihar (supra) without however referring to the said judgment. Be that as it may, the learned Single Judge in the case of Baliram Pandey vs. The State of Bihar (supra) took note of the Government decision circulated through its Chief Secretary on 28th July, 2003 which was a later event that the judgment rendered in the case of State of Bihar vs. Ganga Bishun Mahto (supra). With due respect to the learned Judge who delivered the judgment in Baliram Pandey vs. The State of Bihar and others, I fully agree with the view expressed by his Lordship and accordingly declare that until and unless the State itself alters the rules, it is impermissible for the State to withhold any part of the pension payable to a pensioner unless the pensioner has been convicted or adjudged to be guilty of an offence. 6. In such view of the matter, I pronounce that 6 the petitioner was entitled to 100% pension by way of provisional pension until such time the criminal case was decided one way or other and it was improper on the part of the State to pay only 90% of his pension.” In view of the aforesaid facts and circumstances particularly the fact that there is no accusation against the petitioner for misappropriation of Government fund nor he has been made accused in a case in relation to discharge of official duty, the petitioner is entitled to get full pension and gratuity that may be provisional unless the petitioner is finally held guilty in the criminal case. Accordingly, the writ petition stands allowed. The Respondents are directed to start paying full pension to the petitioner within a period of two months from the date of receipt / production of a copy of this Order. Respondents are further directed to make payment of entire amount of gratuity with arrear within aforesaid time. Similarly, the Respondents are directed to pay arrear of 10% of the pension to the petitioner within aforesaid time. With above observation and direction the writ petition stands allowed. Praful ( Rakesh Kumar, J.)