Gayatri Devi v. The State Of Bihar & Ors.

Patna High Court CWJC No.8139 of 2011 (4) dt.09-01-2013 2 enquiry officer submitted his report exonerating the petitioner of two of the three charges. In respect of third charge, he observed that as the matter is being audited and a criminal case is pending,the fate of that would depend upon the audit report as also the criminal proceeding. The petitioner superannuated on 30th of May, 2000. No order in the departmental proceedings was passed either before his superannuation or after his superannuation even though enquiry report had already been submitted much less the order with reference to Rule 43B of the Bihar Pension Rules. Ultimately, the petitioner died on 8.7.2010.Upon these facts, learned counsel for the petitioner submits that the petitioner’s late husband having without any adverse order in the departmental proceeding died during the pendency of the criminal proceeding. No order can now be passed in the departmental proceeding nor anything can be achieved or done in the criminal preceding which would abate in respect of late husband of the petitioner. In that view of the matter, the petitioner’s late husband would be entitled to full salary for the period he remained suspended, as noted above and full retiral dues including pension and the petitioner would be entitled to full family pension from the date of his death. A counter affidavit has been filed by the State in which it is stated that so far as G.P.F. is concerned, that was paid in full Patna High Court CWJC No.8139 of 2011 (4) dt.09-01-2013 3 in the year 2003 itself to the petitioner’s late husband. It is further stated that so far as leave encashment, gratuity, family pension and group insurance are concerned, they have been sanctioned. In view of criminal case pending only 90% pension has been sanctioned. Learned counsel for the petitioner submits that from Annexure appended to the counter affidavit itself it is evident that leave encashment has been calculated on basis of 75% of the basic salary, which is impermissible and wrong. She further submits that as the departmental proceeding could not be concluded and the criminal proceeding against the petitioner’s late husband would sand abated, the petitioner’s late husband would be entitled to full pension. The counter affidavit is silent with regard to salary for the period petitioner’s husband remained suspended and during that period he has received any subsistence allowance. Having considered the matter, in my view, contentions of learned counsel for the petitioner are correct. As noted above, once the enquiry report was submitted in the departmental proceeding without any adverse finding as against the petitioner’s late husband, no final order was passed. Petitioner superannuated. No order with reference to Rule 43B of Bihar Patna High Court CWJC No.8139 of 2011 (4) dt.09-01-2013 4 Pension Rules was passed. Over a decade has gone by, petitioner’s husband died in the meantime. Thus, it has to be held that the departmental proceeding remained inconclusive. So far as criminal case is concerned, by reason of death of petitioner’s late husband as against him would stand abated. Thus, there being no departmental proceeding and no criminal proceeding, petitioner’s late husband would be entitled to full remuneration for the period of his suspension, full pension and full payment of all other retiral dues. The counter affidavit only states that G.P.F. has been paid. Leave encashment and Group Insurance are concerned, drafts have already been given to the petitioner, which the petitioner does not dispute. However, as noted above, leave encashment has been calculated on basis of 75% of the basic salary. It has to be on basis of the basic salary. No reason or rational has been given for not calculating the same at 100% of the salary. Thus, I direct the authorities to re-calculate the said amount of leave encashment and pay the difference within one month. Similar is the position with regard to pension, which has to be paid in the facts and circumstances, noted above at 100%. In the counter affidavit it is stated that sanction for payment of pension, family pension with statutory interest as well as gratuity with statutory interest has to be made to the petitioner. Mere sanction does not serve any Patna High Court CWJC No.8139 of 2011 (4) dt.09-01-2013 5 purpose. I, therefore, direct the Secretary, Human Resources Department, Govt. of Bihar, to ensure that all these payments are made to the petitioner within one month from the date of production of a copy of this order before him. The responsibility of timely compliance of this Court’s order is on Secretary, Human Resources Development Department. With the aforesaid observations and directions, this writ petition stands disposed of. (Navaniti Prasad Singh, J) singh/-