@JUDGMENTTAG-ORDER
Barin Ghosh, J.@mdashWhile the petitioner was in service a disciplinary proceeding was initiated against him. Before the said departmental proceeding was concluded he retired. The petitioner has filed the present writ petition seeking his retiral/terminal dues. In the counter affidavit it has been stated that whatever was legally due and payable to the petitioner the same have been paid to him except pension, gratuity and leave encashment but to the extent of 90% of the same have also been paid. It is the contention in the counter affidavit that the disciplinary proceeding, which could not be concluded before the petitioner retired, has been decided to be converted into a proceeding u/s 43(b) of the Bihar Pension Rules and, accordingly, provisional gratuity to the tune of 90% has been settled in favour of the petitioner and full earned leave payable to the petitioner has also been paid.
2. Rule 43B of the said Rules authorises withholding of full or part of a pension in the event of proven misconduct of the employee in question or in the event of finding that the employee in question has caused any pecuniary loss to the Government. Therefore, recourse to Rule 43B can only be taken provided there is a finding of guilt or loss caused to the Government. In absence thereof, as held by a Division Bench of this Court in the case of Bajrang Narain Sinha vs. The State of Bihar & Ors.; reported in 1993 P.L.J.R. 949 the State is not competent to withhold any part of the pension, which includes gratuity, after the employee in question has retired. Having regard to the said judgment of this Court the State and its Department issued various administrative orders authorizing withholding of a part of the pension and to settle the remaining as and by way of provisional pension. A Division Bench of this Court held that those administrative decisions of the Government are not to be interfered with. The Division Bench, however, did not notice that when a legislative field was covered by a legislative fiat, as contained in Rule 43B of the Pension Rules, no decision touching that field could be taken by administration. However, after the Division Bench decision was rendered the matter was reconsidred by the State Government and through the Chief Secretary of the State Government the latest Circular was issued whereby and under it was provided that cent percent pension shall be settled and paid to the employees in question who have retired but the same shall be treated to be provisional until such time a decision is taken to convert the same into final pension. In those circumstances, conversion of the disciplinary proceeding, which was pending during the service tenure of the petitioner and which could not be concluded before his retirement, into a proceeding under Rule 43B. would not ipso facto authorize or permit the respondents to withhold any part of pension or gratuity of the petitioner and, accordingly, let full pension, which includes gratuity, be paid to the petitioner as quickly as possible but not later than two months from today.
3. There is no dispute as regards to the earned leave; according to the Accountant General hundred per cent earned leave payable to the petitioner has been released but according to the petitioner 90% thereof has been released. The Accountant General is requested to look into the matter afresh and to communicate to the petitioner in relation thereto within the period, as mentioned above. In the event it is found that 90%. has been paid and not 100%, let the remaining 10% be released. It is clarified that under no circumstances any part of the earned leave can be refused to be paid for Rule 43B does not authorize withholding of earned leave.
4. The learned counsel for the petitioner submits that conversion of a disciplinary proceeding after retirement into a proceeding under Rule 43B of the said Rule is not permissible. A look at the proviso thereto would make it amply clear that the same is permissible.
5. Rule 97 of the Bihar Service Code mandates an order to be passed as well as the manner in which such an order is to be passed when a suspension comes to an end. In the instant case the petitioner retired while on suspension. Petitioner was suspended in view of the disciplinary proceeding initiated against him. Inasmuch as no final order could be passed in the disciplinary proceeding, the Disciplinary Authority could not, therefore, punish the petitioner during the time he remained on suspension and, accordingly, cannot direct payment of suspension allowance alone to him. The Disciplinary Authority is required to take and is directed to take a decision under Rule 97 of the said Code within a period of one month from today and to ensure payment of the amount as is required to be paid to the petitioner on the basis of the decision. Settlement and payment of commutation money cannot be directed at this stage in view of the clear cut decision taken to convert the disciplinary proceeding into a proceeding under Rule 43B of the said Rules. It is, however, directed that such proceeding be concluded as quickly as possible but not later than three months from today. In default, however, commutation to the extent admissible must be made available to the petitioner. If the petitioner has not drawn salary for any period he shall make a representation for payment of the same and if such a representation is made, let the same be decided within a period of two months from the date of such representation. This disposes of the writ petition.
