IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4509 of 2005 SATYA NARAIN CHOUDHARY, son of Late Ram Lakhan choudhary, resident of co-operative Colony, Madhopara, P.S. K-Hat, Distt.- Purnea, Permanent resident of Dholbajja Bazar, P.S. Naugachia, Distt-Bhagalpur Versus 1. THE STATE OF BIHAR 2. Accountant General, (A & E) –II, Bihar, Patna. 3. Secretary-cum-Commissioner, Department of Personal and Administrative Reforms, Bihar, Patna. 4. Commissioner, Purnea Division, Purnea. 5. District Magistrate, Purnea. 6. Managing Director-cum-Deputy Development Commissioner, District Rural Development Agency, Jamui. 7. Sub-Divisional Officer, Sadar, Purnea. 8. District Provident Fund Officer, Purnea. 9. Treasury Officer, District Treasury, Purnea. ----------- 6 11.02.2010 Heard Mr. Rajan Ghoshrave learned counsel appearing on behalf of the petitioner, Mr. Ashutosh Kumar Singh, A.C. to G.P.8 for the State and Mr. Arun Kumar Arun learned counsel appearing on behalf of the Accountant General. The petitioner who retired from the post of Deputy Collector, Land Reforms Department with effect from 31.1.2005 has filed the writ petition for payment of the 10 % pension and gratuity which has been withheld by the respondents on grounds of pendency of a criminal case. The petitioner further prays for recalculation of his post retiral benefits 2 after granting him increment to which he was entitled with effect from 1.1.2000 and for payment of the consequential benefits arising therefrom. Admitted position is that the entire retiral benefits has since been paid to the petitioner on the basis of last pay drawn by him on the date of retirement and which includes 90 % pension and gratuity. It is stated that on account of a criminal case arising from Benipatti P.S. Case No. 231 of 1992 instituted under Section 409/34 of the Indian Penal Code that the respondents authorized the pension and gratuity of the petitioner vide order dated 27.5.2005 placed at Annexure-D/2 of the counter affidavit of respondent No.2 to the extent of 90 %. Learned counsel for the respondents submits that it is by reason of the pendency of the criminal proceedings that the department taking a lenient view of the matter has withheld only 10% pension and gratuity of the petitioner and that the same would be admissible to him no sooner the said proceeding concludes in his acquittal. He submits that the department was fully authorized to withhold the said amount in 3 purported exercise of power under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the ‘rules’). Learned counsel for the petitioner on the other hand submits that nodoubt the rule relied upon by the respondents authorizes them to withhold the said amounts in case any judicial or departmental proceeding as envisaged under the rule is pending against a retiring/retired employee but then there has to be an order to that effect. Learned counsel thus submits that even in absence of any proceedings initiated or order passed in purported exercise of power under Rule 43(b) of the Bihar Pension Rules, the respondents have withheld the amounts in question and have been pleased to sanction only 90% of pension and gratuity by order dated 27.5.2005 (Annexure- D/2). The contention of the petitioner has substance because there is not a single order on the records of the proceeding or in the counter affidavit filed on behalf of the State respondents directing withholding of 10% pension and gratuity of the petitioner. The order of sanction of 90% pension and gratuity 4 dated 27.5.2005 placed at Annexure-D/2 simply relies upon a circular of the Finance Department No. 3014 dated 31.7.1980 which inter alia also provides guidelines for sanction of pension and gratuity in such situation. Rule 43(b) of the Bihar Pension Rules indisputably authorizes the employer to withhold a part or the whole of the pension and gratuity of a retired employee in case he is found guilty of a grave misconduct or of having caused pecuniary loss to the Government, in a departmental or judicial proceedings but there has to be a specific order to that effect as it amounts to a forfeiture of a constitutional right vested in a retired employee even if for a temporary phase. The partial retiral benefits have been withheld by reason of the pending judicial proceeding which was instituted in the year 1992 and has not yet concluded. The petitioner has placed on record an order passed in Cr.W.J.C. No. 390 of 2001 dated 13.2.2008 whereby the summons issued in the name of the petitioner was quashed for the reason that no sanction has been granted by the State Government. 5 Learned counsel for the State however, submits that although the sanction had been accorded prior to the passing of the order in Cr.W.J.C. No. 390 of 2001 but somehow due to communication gap it could not be placed at the time the order was passed. Be that as it may, the position as emanates from the records of the proceedings is that there is no order of withholding 10% of pension and gratuity passed by the respondents. No benefits muchless retiral benefits can be withheld in absence of there being any order withholding the same. Even if the respondents are authorized under the Rules to withhold a part or entire pension and gratuity of the petitioner and assuming they have proceeded to do so in the case of the petitioner in exercise of such power but even in such situation there has to be a specific order to that effect. As stated no such order is on the records of the proceedings nor has been brought to the notice of this Court. Forfeiture or withholding a part or the whole of the pension and gratuity has to be done by a positive act and can not be deemed, implied or be a natural consequence of 6 initiation of any departmental or judicial proceeding under the rules. The withholding of the remaining 10% pension and 10% gratuity of the petitioner thus in absence of any specific order is patently arbitrary, contrary to rules and thus cannot be sustained. The respondents are not authorized and cannot withhold the remaining amount of pension & gratuity of the petitioner until such time any specific order withholding the same is passed under the rules. In so far as the claim of the petitioner for grant of increment w.e.f. 1.1.2000 is concerned, I do not find any objection from either the respondent authorities of the State or the Accountant General but each one has shifted the burden on the other. This cannot go on. It is the employer who has to take a decision whether or not the petitioner is entitled for grant of increments w.e.f. 1.1.2000. The claim of the petitioner cannot be left in a limbo. In that view of the matter, this writ petition is allowed and the respondents are directed to release the balance 10% of the pension and gratuity of the petitioner. The 7 concerned authority of the State Government would also take a decision on the claim of the petitioner for grant of increment w.e.f. 1.1.2000 and the consequential benefits flowing therefrom in accordance with law and preferably within a period of three months of receipt/production of a copy of the order. Needless to add that any adverse decision should be by a reasoned and speaking order. The writ petition is allowed with direction(s) aforesaid. Bibhash (Jyoti Saran, J. )