IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.717 of 2006 DR.BIMAL KANT DAS Versus THE STATE OF BIHAR & ORS ----------- 5. 7.4.2010. Mr. Dhirendra Nath Jha for the petitioner, Mr. Ravi Verma, learned Assisting counsel to G.P.15 for the State and Mr. Raj Nandan Prasad for the Accountant General are present. The petitioner superannuated from the post of Traveling Veterinary Officer with effect from 30.7.2002 He was put under suspension with effect from 2.3.1996 for his alleged involvement in a criminal case arising out of R.C.Case No.78(A) of 1996/Special Case No.70 of 1996 and while the matter was pending trial, the petitioner superannuated while remaining under suspension. Upon non-payment of his post retiral benefits, the present writ petition came to be filed seeking payments thereof. A counter affidavit has been filed on behalf of the respondents, copy whereof has been served on the leaned counsel for the petitioner and in which it is stated that the petitioner has ultimately been convicted in the criminal case. It is next submitted that the admissible retiral benefits have since been paid to the petitioner, 2 i.e leave encashment, 90% provisional pension and the G.P.F. amount. It is stated that the petitioner is not entitled for any salary for the suspension period nor the gratuity amount. Mr. Raj Nandan Prasad, learned counsel representing the Accountant General submits that despite writing letters to the controlling authority for issuance of order sanctioning the amount of gratuity, nothing has been received in that context. Mr. Ravi Verma, learned counsel for the State, with reference to the statements made in the counter affidavit, submits that the petitioner is not entitled to full pension or the gratuity amount in terms of the Resolution of the Finance Department bearing no.3014 dated 31.7.1980 prescribing a provisional pension to the extent of 90 %. He submits that the petitioner is thus not entitled to any gratuity amount. The opinion of the department concerned as expressed in the counter affidavit is completely misplaced. Rule 27 of the Bihar Pension Rules defines pension to include gratuity. That being the position, once the Finance Department has taken a decision to enhance the payment of 3 provisional pension to the extent of 90 % of such of the employees facing judicial or departmental proceedings as envisaged under Rule 43(b) of the Bihar Pension Rules, the same would equally apply to the case of gratuity in view of the definition of the pension provided under the Rules. In fact in several cases of such kind, the concerned department themselves have authorized Gratuity to the extent of 90%. Even the stand of the Accountant General appears to be in tune with the said position. The petitioner thus would also be entitled to 90% gratuity until such time the department issues any order for forfeiture of the same. No such order for either withholding or forfeiture of 10 % pension or gratuity has been brought to the notice of this court. In fact, admittedly the petitioner is drawing 90 % provisional pension and in that view of the matter, he is also entitled to 90 % of gratuity and which shall be paid to him within a period of three months from the date of receipt/production of a copy of his order unless any positive order withholding or forefeiting the same is passed by the department concerned in the light of the 4 convictions of the petitioner within the period aforesaid. The writ petition is disposed of. ahk (Jyoti Saran, J.)