IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.737 of 2006 BISHESHWAR SINGH Versus BIHAR STATE ELECTRICITY BOARD & ORS. ----------- 05/ 22-02-2010 Heard Mr. R.K. Sinha for the petitioner and Mr. Vijay Kumar Verma, junior counsel to Mr. Vinay Kirti Singh representing the Electricity Board. The petitioner who superannuated from the post of Assistant Electrical Engineer with effect from 31.1.2004, filed the writ petition for re-fixation of his pension as per the revised scale of pay in terms of office order no. 275 dated 25.10.2000 and payment thereof together with arrears and also the payments towards gratuity, G.P.F., Group Savings Scheme and leave encashment. Learned counsel submits that although the pay revision took place in the light of the order dated 25.10.2000 but the consequential benefits arising therefrom were not provided to the petitioner and that neither his pay-scale was revised nor the retiral benefits were fixed on that basis and thus the petitioner is continuously suffering by that reason. He submits that although he has received the payment towards general provident fund and group savings scheme but the payments have been made with some delay and for that the petitioner is entitled for interest. Learned counsel submits that he is drawing 90 per cent pension on pre-revised scale but the entire gratuity amount has been withheld by the respondents and who have also withheld the leave encashment amount. Learned counsel for the petitioner thus - 2 - submits that the action of the authorities in withholding the retiral dues of the petitioner on the pretext of pending departmental proceedings in which the enquiry report was submitted as back as in the year 2007 with no final decision being taken, has led to undue harassment of the petitioner. Learned counsel further submits that even assuming the respondents have authority to do so, they can only withhold the pension and gratuity of the petitioner to the extent of 10 per cent only and the remaining has to be released. He further submits that withholding of the leave encashment amount is also without sanction of law. Learned counsel for the Board submits that the Board has authority to withhold the leave salary under the standing order of the Board. It is well settled that the standing order cannot override the statutory Rule framed by the State Government with regard to the admissibility of the post retiral benefits after retirement and the concerned Rule 43(b) undoubtedly empowers the authorities to withhold part or entire gratuity of the delinquent employee but not Leave salary. This position stands explained in the Division Bench judgment reported in 1999(3) P.L.J.R. 949 (Bajrang Deo Narain Sinha Vs. The State of Bihar & Ors.). A supplementary counter affidavit has been filed on behalf of the Board and in which it is stated that the disciplinary authority differing with the finding of the enquiry officer has issued a show cause notice of punishment to the petitioner for causing revenue loss, vide resolution no. 180 dated 16.02.2010, copy whereof has been - 3 - placed at Annexure-A to the said affidavit. Learned counsel thus submits that the final payment of the petitioner would be dependant upon final outcome of the proceeding which has been initiated for ascertaining the revenue loss caused to the Board by the petitioner. Learned counsel for the petitioner in this regard submits that the resolution itself shows the pre-determined mind of the Board inasmuch as the said notice purporting to be a second show cause is in fact a reflection of the predetermined mind of the Board in proceeding to impose a penalty. Learned counsel further submits that the enquiry report exonerating the petitioner of the charges has not yet been provided to him and following the settled propositions of law the petitioner is entitled to a copy of the same to enable him to prepare reply to the second show cause notice. Having regard to the circumstances set forth, the disciplinary authority i.e. the Secretary of the Board shall provide a copy of the enquiry report to the petitioner within two weeks from receipt/production of a copy of this order and whereafter the petitioner would be submitting his show cause reply within four weeks thereafter and upon submission of the reply by the petitioner the final order should be passed within four weeks thereafter. In the meanwhile, pending final decision in the departmental proceedings, the Secretary shall also finalize the claim of the petitioner regarding re-fixation of his scale in the light of the office order dated 25.01.2000 effecting pay-revision in the Board and also calculate his arrears of salary, pension and other entitlements on that - 4 - basis and make payment of the same to the petitioner. The respondents shall also release 90 per cent of the gratuity and leave encashment amount. The payments aforesaid shall be made within a period of three months of receipt/production of a copy of this order. The writ petition is disposed of with the directions/observations aforesaid. S.Sb/- (Jyoti Saran, J.)