D.N. Patel, J.

1. This Letters Patent Appeal has been preferred by respondent no.5 of the Writ Petition being C.W.J.C. No. 1293 of 2001, which was allowed by the learned Single Judge vide judgment and order dated 15th March, 2013, whereby, the learned Single Judge has ordered to pay 10% Pension which was withhold by the Government; the learned Single Judge has allowed payment of Gratuity which was also withhold by the Government; and the learned Single Judge has allowed payment of encashment of Earned-Leaves which was also withhold by the Government mainly for the reason that this respondent no.1 (original petitioner) was convicted for 6 years rigorous imprisonment for the offence under “Animal Husbandry Scam” which is also popularly known as “Fodder Scam” and fine of Rs.1,80,000/-was imposed by the competent trial court. Criminal Appeal was preferred by this respondent no.1 (original petitioner) in which order of suspension of sentence has been passed. The amount of fine has not been paid by this respondent no.1 (original petitioner).

Reasons:

2. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that respondent no.1 is an original petitioner. The Government has withheld 10% Pension, Gratuity and encashment of Earned Leave of respondent no.1, who has retired on 31st January, 1996, mainly for the reason that the Central Bureau of Investigation (CBI) has started inquiry against respondent no.1.

3. Ultimately, the Central Bureau of Investigation filed a charge sheet and respondent no.1 (original petitioner) was convicted in a case which is popularly known as “Animal Husbandry Scam” or “Fodder Scam” for six years rigorous imprisonment and fine of Rs.1,80,000/-was also imposed. For this reason, 10% Pension, Gratuity and encashment of Earned Leave have been withhold by the Government.

4. Respondent no.1 had preferred a Writ Petition being C.W.J.C. No. 1293 of 2001 which was allowed by the learned Single Judge vide judgment and order dated 15th March, 2013 on the ground of violation of Section 43(b) of the Bihar Pension Rules etc.

5. It appears that the learned Single Judge has lost sight of the fact that when respondent no.1 (original petitioner) is already convicted in a case initiated by the Central Bureau of Investigation for six years' rigorous imprisonment with a fine of Rs.1,80,000/-and the Government has withheld the amount, in such eventuality, prerogative power of the writ jurisdiction ought not to have been exercised. It is one thing to have a power of judicial review in writ jurisdiction and it is altogether another thing, to exercise such powers. Prerogative power of writ jurisdiction ought not to have been exercised in a case where the petitioner is already convicted. Huge amount of fine is imposed by the competent trial court, which is not yet paid by respondent no.1-accused (original petitioner). Writ jurisdiction in such eventuality is not a proper remedy at all. Writ jurisdiction, in a case in which, the petitioner is already convicted and fine imposed which is not yet paid and the amount of 10% Pension, Gratuity and encashment of Earned Leave is withheld by the Government, ought not to have been exercised, at all. Issuance of a Writ is discretion of the Court.

6. Let respondent no.1 (original petitioner) waits till his conviction is quashed by the competent appellate forum and thereafter he can initiate proceeding for recovery of the amount before any competent court or authority. Even a civil suit can be filed to get the money from the Government.

7. It has been held by the Hon'ble Supreme Court in the case of Union of India v. Ramesh Kumar, reported in (1997) 7 SCC 514, in paragraph 6, which reads as under:

“6. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that