The petitioner, who was initially appointed on the post of LOC at Dhanbad Headquarter got retired on 31.7.2009 as UOC from the Regional Office of the Coal Mines Provident Fund Commissioner, Asansol on his superannuation. Before six months of his retirement, memo of charges was served upon him whereby he was charged to have been found alongwith office bearers of unrecognized union raising slogans and insinuating other staffs against the Commissioner and Administration of CMPFO, Dhanbad and thus, he was alleged to have violated Rule 3(1)(i), (ii), (iii), Rule 3-C(23)(3), Rules 6 and 7 of the CCS (Conduct) Rules, 1964. The petitioner by placing his case denied all the charges. On such denial, charges were framed and therefore, enquiry committee was constituted to hold an enquiry on the charges. While the disciplinary enquiry was pending, the petitioner got retired on 31.7.2009.

2. According to the case of the CMPF, the Commissioner, CMPF Headquarter, Dhanbad on the retirement of the petitioner sought permission of the President of India under Rule 9(2)(a) of the CCS (Pension) Rules, 1972 to continue disciplinary proceeding against the petitioner, who had retired from service. Upon which, permission was accorded by the Central Government which was communicated by the Ministry of Coal, Government of India, to the Commissioner, CMPF, Dhanbad on 21.10.2009. Since then the proceeding is ending.

3. It is the case of the petitioner that after retirement, the petitioner applied for payment of all retiral dues, upon which pension was paid but the amount payable towards gratuity, leave encashment was not paid nor the petitioner was allowed to have commutation of pension and, therefore, the petitioner has filed this writ application for a direction to the authority to pay the retiral dues as aforesaid.

4. It was submitted on behalf of the petitioner that the petitioner retired during the pendency of departmental proceeding but immediately thereafter, no order was passed for continuation of the proceeding and hence, any continuation of the proceeding is bad in law.

5. Other argument advanced is that admittedly the proceeding is pending. Therefore, during the pendency, the authority does not have power to withhold gratuity and leave encashment, in view of the provision as contained in Rule 9 of the Central Civil Services (Pension) Rules, 1972 which provision is akin to Rule 43(b) of the Bihar Pension Rules. When the question fell for consideration in a case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Others [2007 (4) JCR 1 (Jhr.)(FB)), as to whether the authority does have any power under the Bihar Pension Rules to withhold pension and gratuity during the pendency of judicial or departmental proceeding? The Court having taken into consideration several decisions and also Rule 9 of the Central Civil Service (Pension) Rules, 1972 did hold that the State Government does not have any power to withhold pension and gratuity during the pendency of judicial or departmental proceeding. At the same time, it was also held that in any event, the authority does not have power to withhold the amount payable towards leave encashment.

6. Mr. Ratnesh Kumar, learned counsel appearing for the CMPF submits that the provision as contained in Rule 9 of the Central Civil Services (Pension) Rules, 1972 cannot be said to be in pari materia to the provision as contained in Rule 43(b) of the Bihar Pension Rules as Rule 9 does envisage continuation of the proceeding even after retirement of an employee whereas in Rule 43(b) of the Bihar Pension Rules, there is no such provision of continuation of the proceeding after retirement of an employee and that under the Bihar Pension Rules, no provision is there of withholding the amount of the gratuity during the pendency of departmental or judicial proceeding whereas under the provision of Rule 69 of the Central Civil Services (Pension) Rules, 1972, the amount payable towards gratuity can be withheld during the pende