The main legal point established in the judgment is that unless a pensioner is found guilty of misconduct in a departmental or judicial proceeding, any part of the pension cannot be withheld, as per Rule 43(b) of the Bihar Pension Rules.

Heard counsel for the parties and with their consent this appeal is being disposed of at the admission stage itself.

2. The undisputed facts are that the appellant supperannuated from service on 31.10.96. He was then holding the post of Travelling Veterinary Officer. He was not paid his full pension, gratuity and leave encashment dues which compelled him to file a writ petition before this Court claiming payment of full pension, gratuity and leave encashment dues. A learned Judge of this Court has held that since the petitioner has been chargesheeted in a criminal case involving defalcation of public fund, 10% of the pension, gratuity and leave encashment dues may be withheld till conclusion of the trial. The judgement order of the learned Judge has been impugned before us in this appeal.

3. Counsel for the appellant submits that the State Government has a right of withholding or withdrawing a pension or any part thereof whether permanently or for specified period if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service. In the instant case, so far no finding has been recorded in a departmental or a judicial proceeding that the appellant is guilty of misconduct or of having caused pecuninary loss to the government by misconduct or negligence. No doubt, a criminal case is pending against the appellant but that does not furnish a sufficient ground for the State not to pay to the appellant his pensionary dues including gratuity and leave encashment dues. If ultimately in the criminal trial, the appellant is found guilty, the question as to whether any part of his pension should be withdrawn may have to be considered in accordance with the relevant rules.

4. He relied upon a decision of the Supreme Court reported in AIR 1990 Supreme Court 1923 (D.V. Kapoor vs. Union of India & ors) for the principle that unless the pensioner is found guilty of misconduct in a departmental or a judicial proceeding, any part of his pension cannot be withheld. In that case, the Supreme Court was considering Rule 9 of the Civil Services Pension Rules, 1972 which is in para materia with Rule 43(b) of the Bihar Pension Rules. This Court has also taken the same view in several decisions including the decision in CWJC No. 7315 of 1995 decided on 4.9.1996 and in State of Bihar & Ors. vs. Idris Ansari (1995 AIR SCW 2886). Apart from decisions, the rule is quite clear, and it is only in the case of proved misconduct that a part or whole of pension can be withheld.

5. It is also not disputed before us that no order has been passed under Rule 43(b) of the Bihar Pension Rules, and therefore, in the absence of such an order, the State is not authorised to withhold a pension or any part of it.

6. We are, therefore, of the view that the pensionary dues payable to the appellant including gr3tuity, which is also pension within the meaning of the Bihar Pension Rules, cannot be withheld till such time as an order is passed under Rule 43(b) of the Bihar Pension Rules. Similarly, the leave encashment dues also cannot be withheld since that is paid in lieu of unutilised leave and therefore partakes the character of salary.

7. In this view of the matter, this appeal is allowed and the respondents are directed to pay to the appellant full pension payable to him in accordance with the Rules as well as gratuity and leave encashment dues within a period of three months from today. This is without prejudice to the right of the State to take any action in accordance with the rules.