The main legal point established in the judgment is that the Bihar Pension Rules, particularly Rule 43(b), and the amendments made through notifications, permit the withholding of gratuity and leave encashment in cases of pending departmental or judicial proceedings.

Hemant Gupta, J.

The order dated 24th October, 2013 passed by the learned Single Bench in CWJC No. 3893 of 2013 is the subject matter of challenge in the present Letters Patent Appeal. By the order under appeal, the claim of the petitioner for grant of benefit of encashment of earned leave as well as other benefits for the period of judicial custody of the petitioner was directed to be examined by the State Government.

2. The appellant was in judicial custody in a case for offence under Section 302 of the Indian Penal Code for 196 days. The appellant claims that there is no rule for withholding his retiral benefits such as pension, leave encashment and gratuity on account of pending criminal trial. Therefore, the action of the State Government in not paying the leave encashment and the gratuity is not sustainable. It is admitted that provisional pension has since been sanctioned and is being paid to the appellant.

3. The entire argument of the appellant is based upon the Supreme Court judgment reported as (2013) 12 SCC 210 (State of Jharkhand v. Jitendra Kumar Srivastava), wherein Rule 43(b) of the Bihar Pension Rules, 1950 and the Circular of the State Government dated 31st July, 1980 were considered. A finding was returned that the circular issued has no force of law. Therefore, the State Government cannot withhold any part of pension or gratuity.

4. Learned counsel for the appellant refers to Division Bench judgment of this Court reported as 2013(2) PLJR 866 (Chairman & M.D. UCO Bank v. Shambhu Sharan Singh), and also a Single Bench judgment of this Court reported as 2015(1) PLJR 842 (Vijay Kumar Chaurasia v. State of Bihar).

5. We have heard learned counsel for the parties and find no merit in the present appeal. The Bihar Pension Rules, 1950 were published by the Finance Department vide Notification No. F.D.100-F. dated 20th January, 1950 and were made applicable by the State Government under clause (b) of sub-section (2) of Section 241 of the Government of India Act, 1935. The relevant extract of the Bihar Pension Rules are as follows :-

"1.(a) These rules may be called the Bihar Pension Rules. They are intended to define the conditions under which pension is earned by service under the Government of Bihar and in what manner it is calculated and paid.

(b) Except where otherwise provided, the rules contained herein shall come into force with effect from the 20th January, 1950.

……….. ……… …………

"26. (a) Pay means the amount drawn monthly by a Government servant as –

(i) the pay, other than the special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; …."

…….…. ………….. ………..

"27. Pension includes a gratuity."

……… …………. ………..

"43. (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted or serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.

(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on reemployment after retirement:

Provided that –

(a) Such departmental proceedings, if not instituted while the Government service was on duty either before retirement or during re-employment;

(i) sha