IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9395 of 2005 BANARAS SINGH Versus THE STATE OF BIHAR & ORS ----------- 05/ 26.03.2010 Heard Mr. Shiv Kumar, learned counsel for the petitioner and Mr. Shankar Kumar, assisting counsel to A.A.G. 5 for the State. The petitioner superannuated from the post of Clerk with effect from 1.4.2003 while posted under the Infectious Disease Hospital, Gaya. Non-payment of the post retiral benefits of the petitioner, led to the filing of the present writ petition. The grievance set out by the petitioner in paragraph-1 of the writ petition relates to non-payment of pension, gratuity, unutilized leave, provident fund, salary for the period 1.1.2000 to 19.7.2001 and also February, 2003 to March, 2003. Learned counsel for the petitioner submits that of the grievances aforesaid, although the salary for the period 1.1.2000 to 19.7.2001 was sanctioned by the Civil Surgeon-cum-Chief Medical Officer vide order bearing memo no. 302 dated 28.2.2005 (Annexure- 3) and for the period February, 2003 to March, 2003 vide memo no. 372 dated 4.3.2005 (Annexure-5) but the payments were never made to the petitioner. Two sets of counter affidavits have been filed in the proceedings on behalf of respondent no.2, the Deputy Director, Health Services and the respondent no. 4, the Civil Surgeon-cum- Chief Medical Officer, Gaya. - 2 - From perusal of the two affidavits it transpires that the petitioner was suspended with effect from 21.3.2003 in contemplation of a departmental proceedings pursuant to some allegations in relation to the MSD (Medicine Supply Depot) Scam, in connection with illegal/irregular purchase of medicines. However, the petitioner superannuated in the meanwhile leading to issuance of an order bearing memo no. 1485 dated 1.10.2003 (Annexure-B) to the counter affidavit of respondent no. 4 revoking the suspension of the petitioner but at the same time, transforming the proceedings into a proceeding under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rule). It was further provided that during the pendency of the proceedings and until the completion thereof, the petitioner would not be entitled to 10 per cent pension, the entire gratuity as well as the leave encashment. Paragraph-9 of the affidavit filed on behalf of the Deputy Director, demonstrates that the petitioner was paid his group insurance vide cheque dated 3.12.2003 and his G.P.F. amount vide cheque dated 6.7.2004. In so far as the unutilized leave salary is concerned, the same was adjusted against his unauthorized absence by regularization thereof in terms of Rules 227 and 234 of the Bihar Service Code, which takes care of the leave encashment dues of the petitioner. The only issue now remains for consideration is withholding of 10 per cent of pension of the petitioner and the entire gratuity amount on the pretext of pending departmental proceedings. - 3 - Under the Finance Department’s Resolution bearing no. 3014 dated 31.7.1980 issued in supersession of earlier Circulars the quantum of pension allowed to retired employees facing departmental and/or judicial proceedings as envisaged under rule 43(b) of the rules was enhanced from 75% to 90% thus reducing the withheld amount of pension from the earlier 25% to 10 % per month. Rule 27 of the rules defines pension to include gratuity. Thus in view of the provisions of Rule 27 of the rules read with the stipulations made under the Finance Department’s Circular dated 31.7.1980 prescribing a payment of 90% pension to a retired employee facing departmental/judicial proceedings under rule 43(b) of the rules, the action of the respondents in withholding the entire gratuity amount becomes impermissible and without sanction of law. In the circumstances, the respondents are directed to release 90 per cent of the gratuity amount of the petitioner within three months of receipt/production of a copy of this order The balance 10 per cent pension and gratuity would be subject to the final outcome of the proceedings under rule 43(b), pending against the petitioner. The writ petition stands disposed of with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)