JUDGMENT :

Heard Mr. Ashok Kumar Choudhary, the learned counsel for the petitioner, Mr. P.K. Verma, the learned A.A.G. 3 for the State and Mr. (Dr.) Anand Kumar, the learned counsel appearing on behalf of the Accountant General.

2. The petitioner seeks following reliefs in this writ petition:

a) For a direction to the respondents to make payment of pension, gratuity, leave pay and other post retiral dues, if any, to which the petitioner is entitled to after having retired w.e.f. 29.02.2020 from the post of Additional Secretary, SC & ST Welfare Department, Government of Bihar, Patna.

b) To quash Memo No.5241, dated 03.06.2020 (Annexure-5) issued by the respondent no.2 to the extent payment of 10% pension, entire gratuity and amount of leave encashment to the petitioner was kept pending in a most mechanical and arbitrary manner.

c) To pass any other order/orders or the consequential relief to which the petitioner may be found to be legally entitled on the facts and in the circumstances of the case.

3. Admittedly the petitioner entered in the Bihar Administrative Service in the year 1989 and the petitioner worked in different capacities till his retirement. The petitioner retired from the post of Additional Secretary, SC & ST Welfare Department, Government of Bihar on 29.02.2020. While the petitioner was working as Municipal Commissioner, Nagar Nigam, Muzaffarpur, the petitioner was charged for committing financial irregularity in purchasing submersible pumps and garbage tripper. For that Vigilance P.S. Case No.56 of 2018, corresponding to Special Case No.26 of 2018 was registered under Sections 409, 467, 468, 471 and 120(B) of the Indian Penal Code and under Sections 13(2) read with 13(1)(a) of the Prevention of Corruption Act. The petitioner after his retirement filled up his form for payment of pension and pensionary benefits but the General Administration Department vide Memo No.5241, dated 03.06.2020 ordered for only payment of 90% provisional pension to the petitioner. Payment of entire gratuity and leave encashment were withheld and, thus, the petitioner moved this Court.

4. Mr. P.K. Verma, the learned A.A.G. 3 filed counter affidavit and on the basis of such Mr. Verma submits that Vigilance P.S. Case No.56 of 2018 is pending against the petitioner and the same was instituted before retirement of the petitioner. The government has already accorded sanction for prosecution. Charges have already been served for initiation of departmental proceeding against the petitioner and, therefore, in view of the amended provisions of Rule 43(d), which is made effective from st of January, 2019, the government has rightly withheld the entire gratuity and leave encashment along with 10% pension.

5. Mr. Ashok Kumar Choudhary, the learned counsel for the petitioner submits that the petitioner did not commit any financial irregularity in accepting the annual tender of M/s Maurya Motors for supply of garbage tripper. It is further submitted that even the departmental proceeding has not been initiated and the same is under contemplation. Under Rule 43(b), the government can only withhold the pension and gratuity if the government servant is found guilty of grave misconduct and government servant is found guilty to have caused pecuniary loss to the government by misconduct or negligence during his service. Institution of mere FIR cannot be a condition precedent for withholding pension and gratuity as no sanction for prosecution of the petitioner was granted till the retirement of the petitioner. It is further submitted that the pension includes gratuity and in view of the provisions as inserted as Rule 43(c), 90% of pension and gratuity had to be paid to the government servant, if any departmental proceeding or criminal case is pending but the entire gratuity and leave encashment have been withheld.

6. Learned counsel for the petitioner in support of his contention placed reliance on the judgment of the Hon’ble Supreme Court in the case of Dr. Hira L