All these matters; one writ petition and two appeals under Clause 10 of the Letters Patent, have been placed before us for consideration in view of references made by the Single Bench and the Division Bench respectively.

2. The legal questions involved, pertains to the right of the State Government in withholding full gratuity and encashment of Earned Leave in cases of employees against whom, at the time of superannuation departmental or criminal proceedings were pending. The question further referred is with regard to the divergent views taken by two Division Benches of this Court in the case of Vijay Kumar Mishra Vs. The State of Bihar & Ors., 2017 (1) PLJR 575 and Bajrang Deo Narain Sinha Vs. State of Bihar, 1999 (3) PLJR 949.

3. Before adverting to consider the legal issues involved, it would be appropriate to consider the facts of each case.

4. In C.W.J.C. No. 15328 of 2016, the petitioner therein Sri Arvind Kumar Singh was working as an Assistant Engineer in the Public Works Department. He was appointed in the year 1980, was promoted from time to time and on 22.08.2013, while he was working as Superintending Engineer in the Rural Works Department, Works Circle, Siwan, a raid was conducted in his premises and pursuant thereto Vigilance Police Station Case No. 50/2013 was registered against him for offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. It is reported that the case is still pending. That apart, finding him to be a public servant who was found to be in possession of assets and property disproportionate to his known source of income, he was put under suspension by the State Government on 18.02.2014 under Rule 9(1)(c) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 and subsequent thereto a charge-sheet dated 10.02.2014 was issued to him, while the departmental and the criminal proceedings were pending, he superannuated on 31.05.2015. When, the petitioner, submitted his claim for payment of retiral benefits, he was sanctioned 90% of provisional pension, Provident Fund dues, however, 10% pension, full gratuity and admissible leave encashment were withheld. Challenging withholding of his full gratuity and admissible leave encashment and claiming release of the balance 10 per cent of pension the writ petition in question was filed and placing reliance on Rule 43(b) and (c) of the Bihar Pension Rules, 1950 (hereinafter referred to as the “Pension Rules”) and on a judgment of the Supreme Court in the case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Ors., (2013) 12 SCC 210, the pensionary benefits were demanded. Reliance on another judgment, rendered by a Division Bench of this Court in the case of Md. Adris Ansari Vs. State of Bihar & Ors., 1994 (1) PLJR 809, approved by the Supreme Court in the case of State of Bihar & Ors. Vs. Md. Adris Ansari, AIR 1995 SC 1853 was also placed to say that until and unless the employee concerned is held guilty of the misconduct levelled against him or punished in the judicial proceedings pending, in view of the provisions of Rule 43(b) pension, gratuity and leave encashment cannot be withheld. It was also argued that there is no provision in the pension rule for withholding of leave encashment, and therefore, in view of the judgment of a Division Bench in the case of Bajrang Deo Narain Sinha Vs. State of Bihar, 1999 (3) PLJR 949, pensionary dues of the petitioner including gratuity, pension and leave encashment cannot be withheld. Here again, reliance was placed on the provisions of Rule 43(b) of the Pension Rules.

5. However, before the learned Writ Court on behalf of the State Government, a judgment of the Division Bench in the case of Vijay Kumar Mishra (supra) was brought to the notice of the Court and it was argued that in this case the Division Bench after placing reliance on certain circulars said to have been issued by the State Government on 31.07.1980 has held that the ent