The main legal point established is that under Rule 43(c) of the Bihar Pension Rule, 1950, employees facing departmental inquiry or judicial proceeding at the time of superannuation are entitled to provisional pension, including gratuity, to the tune of an amount not less than 90 percent.

JUDGMENT :

Heard Mr. Ravi Ranjan, learned counsel for the petitioner and Ms. Namrita Singh, learned counsel for the State.

2. By filing the present writ application, the petitioner seeks a direction upon the respondent for payment of his gratuity withheld by respondent no. 5 on the ground of a criminal case being pending against him. He further seeks for setting aside the endorsement dated 08.07.2019 made by the District Programme Officer (Establishment), Sitamarhi whereby a direction has been given to take action for payment of gratuity after disposal of the criminal case pending against the petitioner.

3. The short facts, which led to the filing of the present writ application is that the petitioner was appointed as an Assistant Teacher on 14.08.1984 and after serving for more than 34 years he superannuated from the post of Head Master, Middle School Hardia, Pupri Sitamarhi on 30.11.2018.

4. It is contended that some how and the other one criminal case bearing Pupri P. S. Case No. 84 of 2014 was registered on account of charges of some irregularities in the distribution of mid-day-meal and the same is still pending against the petitioner. It is next submitted that with regard to the aforesaid charges, the petitioner was also put to departmental proceeding but culminated into his exoneration. It is further submitted that having been superannuated on 30.11.2018, No Dues Certificate has been issued in favour of the petitioner and all other retiral dues, except gratuity have stood paid to the petitioner.

5. On the other hand, learned counsel for the State vehemently contended that since the petitioner was found involved in certain irregularities and a criminal case was instituted against him and the same is still pending, the amount of gratuity has been withheld, however, all the other retiral dues have stood paid to the petitioner. It is further submitted that the payment of the gratuity amount would also be paid to the petitioner after disposal of the criminal case, if the petitioner would be exonerated from the charges.

6. From the submissions made herein above and the materials available on record admittedly there is no departmental proceeding or any outcome suggesting the petitioner is found to be guilty of any misconduct save and except the pendency of a criminal case arising out of Pupri P. S. Case No. 84 of 2014. It is also the fact that the petitioner superannuated on 30.11.2018 and prior to his superannuation an amendment has been incorporated in the Bihar Pension Rule, 1950 by amending the Rule 43(c) on 19.07.2012, which clearly stipulates as under:-

“43(c) Where the departmental proceeding or judicial proceeding, in which the prosecution has been sanctioned against such servant, initiated during the service period of the government servant, is not concluded till the retirement of the government servant, the amount of provisional pension shall be less than the maximum admissible amount of pension but shall in no case be less than 90% (ninety percent).”

7. It is needless to say that the issue with regard to the payment of pension and gratuity to the employees who are facing departmental inquiry or judicial proceeding at the time of his superannuation has set at rest by the learned Full Bench of this Hon’ble Court in the case of Arvind Kumar Singh Vs. State of Bihar and Ors reported in 2018 (II) PLJR 933, it would be apt to quote Paragraph Nos. 25 & 30 of the said judgement, which is as follows:-

“25. When this amendment was incorporated on 19th of July, 2012, the State Government was aware of the earlier statutory circular dated 31st of July, 1980 and the administrative circulars of 1974, but while incorporating a provision in the rule itself by amending it, i.e. Rule 43(c), the rule maker consciously used the word “pension” only without carving out an exception with regard to withholding of gratuity. The omission of the word “gratuity” in the amended provisions of Rule 43(c), in our considered view, is a deliberate and conscio