The main legal point established in the judgment is that the statutory rules provide for the release of 100% provisional pension, and the respondents have no right to withhold it. However, the respondents may withhold payment of leave encashment based on specific provisions of the rules.

Ajai lamba, J.

1. Harbhajan Singh Riar has appropriate this Court by way of filing civil writ petition under Articles 226 & 227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing the respondent to release the retiral benefits to the petitioner as per Rules applicable. Specific prayer has been made to release of full provisional pension for which the petitioner is entitled and release of payment of leave encashment.

2. Learned counsel for the petitioner contends that pension and payment of leave encashment cannot be withheld by the respondents. Learned counsel in this regard has referred to Rule 9.14 of the Punjab Civil Service Rules, Vol. II reproduced in para No. 8 of the petition. The provisional pension is being paid and payment of leave encashment has been withheld. Learned counsel further states that the claim of the petitioner finds support from Full Bench judgment of this Court rendered in 1993(3) PLR 499, Dr. Ishar Singh v. State of Punjab and Another.

3. Without referring to the facts in detail, learned counsel for the respondent, from the affidavit of Sarabjit Singh, Administrative Officer, Food, Civil Supplies and Consumer Affairs Department dated 23.07.2009 filed in Court and taken on record today, states that there are 13 disciplinary cases pending against the petitioner. At the stage of finalization of retiral benefits, the respondents might have to effect recovery in regard to the loss to State Exchequer and, therefore, only 40% provisional pension has been sanctioned. Learned counsel for the respondent further contends that the petitioner cannot claim payment of leave encashment because there is a specific rule which allows the State to withhold the said amount.

4. I have heard learned counsel for the parties and have considered the issue raised. While the petitioner, during the period when disciplinary proceedings are pending against him, claims retiral benefits i.e. 100% provisional pension and payment of leave encashment, the stand taken on behalf of the respondents is that these benefits cannot be released.

5. Before proceeding any further, the relevant Rules need to be extracted.

6. In regard to payment of provisional pension, Rule 9.14 of Punjab Civil Services Rules, Vol.II, is relevant and reads as under :-

" 9.14. Provisional pension where department or judicial proceeding may be pending :-

(a) In respect of Government employee referred to in clause (c) of rule 2.2, the Head of Office shall authorise the provisional pension equal to the maximum which would have been admissible on the basis of qualifying service upto the date of retirement of the Government employee or if he was under suspension on the date of retirement, up to the date of immediately preceding the date on which he was placed under suspension.

(b) The provisional pension shall be authorised by the Accountant-General, Punjab during the period commencing from the date of retirement upto and including the date on which, after the conclusion of department or judicial proceedings, final orders are passed by the competent authority. "

7. So far as the claim for payment leave encashment is concerned, provisions Rule 8.21 (aa) of Punjab Civil Services Rules, Volume 1, Part 1 Chapter VIII, are required to be considered which reads as under :-

"(aa) Notwithstanding anything contained in sub-rule (a) the authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of Government employee who retires from service on superannuation while under suspension or while disciplinary or criminal proceedings are pending against him, if in the opinion of such authority, there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him and on conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any"

8. Full Bench of this Court has considered the issue