The withholding of retiral benefits, including gratuity and leave encashment, based on a pending criminal case, must be in accordance with the relevant statutory provisions and cannot be applied retrospectively to deprive the petitioner of his vested rights.

JUDGMENT :

Heard Mr. Santosh Kumar Sinha No.2, learned counsel for the petitioner duly assisted by learned counsel Mr. Arvind Prasad Singh, Mr. Vivekanand Kumar, learned counsel for the respondent Accountant General and Mr. Hari Shankar Rai, learned Assistant Counsel to Advocate General for the State.

2. The present writ application has been filed seeking direction upon the respondents to ensure payment of post retiral dues, including gratuity, leave encashment with statutory interest and other benefits, which has been withheld by the order issued by the Commissioner Commercial Taxes cum Principal Secretary, Commercial Taxes Department, Government of Bihar, Patna, as contained in letter no.6/PE U 14-15/2012, 670, dated 01.03.2013.

3. The short facts in narrow compass is that the petitioner joined the service on 12.09.1984, on the post of Commercial Taxes Officer in the office of Joint Commissioner Commercial Taxes, Patna Division, Patna. After completion of probation, he was posted in Urban Circle Officer, Jamshedpur, on the post of Commercial Taxes Officer. It is further submitted that somehow or other on account of certain allegation, the petitioner was charged in the Fodder Scam bearing Case No. RC63A/96 (Pat). During the pendency of the aforesaid criminal case, the petitioner retired from his service on 31.12.2012 from the office of the Joint Commissioner, Commercial Taxes (Audit) Patna.

4. Learned counsel for the petitioner submits that after his superannuation, the petitioner has submitted requisite documents before the authority concerned for grant of his retiral benefits, however, the petitioner has been allowed only pension to the extent of 90 per cent and neither amount of the gratuity nor the leave encashment has been bestowed upon him. He further submits that by the order of the Commissioner Commercial Taxes cum Principal Secretary, dated 01.03.2013, the claim of the petitioner was considered and having found that the prosecution has been sanctioned against the petitioner in Fodder Scam, which has not been disposed of till date, the amount of gratuity has been withheld and he has been allowed only 90 per cent of pension in the light of the resolution no.3014 dated 31.07.1980, issued by the Finance Department. He also submits that after the retirement of the petitioner the amount under head of leave encashment was sanctioned, but the same has also not been paid to the petitioner.

5. On the other hand, learned counsel for the State by referring to the averments made in the counter affidavit submits that in exercise of the power conferred in Article 309 of the Constitution of India, the amendment has taken place in Bihar Pension Rules 1950 by amending Rule 43 (d) which clearly empowers the State Government that “if any departmental or Judicial Proceeding is pending against the government servant at the time of retirement, full amount of gratuity may be with held till the final conclusion of the Departmental or Judicial Proceeding and issuance of order accordingly.

Provided that where departmental proceedings has been instituted under Rule 19 of Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (As amended time to time) for imposing minor penalties under Rule 14 (i) (ii) and (v) of the said rules, payment of gratuity may be made to the government servant.”

6. He next submits that there is no prayer for quashing of the impugned order dated 01.03.2013 and in absence of such prayer no relief can be granted to the petitioner. He also submits that the criminal case is still subjudice and there is every possibility that the learned Competent Court may pass order of recovery against the petitioner, inasmuch as the petitioner is an accused of “Animal Husbandry Scam” and in such circumstances order passed by the Commissioner Commercial Taxes cum Principal Secretary, Commercial Department, Government of Bihar, has been passed in accordance with law.

7. The issue involved in the present matter has already been set