MRIDULA MISHRA, J.
(1.) Heard Mr. Binod Shankar Tiwary, counsel for the petitioner and Mr. Prabhkar Tekriwal counsel appearing for the Food Corporation of India.
(2.) This application has been filed for a direction to the respondents to fix final pension payable to the petitioner as well as to pay the entire arrears of pension, gratuity, arrears of salary and other post retiral benefits along with statutory interest.
(3.) In he year 1959 the petitioner was appointed in the capacity of IVth grade employee in the Department of Food, Government of India. In the year 1967 his services were transferred to Food Corporation of India. He opted for leave, provident fund, retirement and other terminal benefits admissible to the Central Government employees and the said option was duly entered into the service book of the petitioner under proper registration of the competent authority. After retirement of the petitioner on 31.1.1998 a letter was issued under the signature of Assistant Manager (Pension) from the office of the Zonal Manager, Kolkata, Food Corporation of India by which only provisional pension at the rate of Rs. 2.232.00/-per month was allowed to the petitioner. Petitioner represented his case to all concerned authorities of the Food Corporation of India and submitted his service book, leave account and other relevant documents. On 19.2.1999 under the Orders of Regional Director (Food) Eastern Region, Ministry of Food and Civil Supplies, Government of India, sanction for payment of provisional pension equal to the maximum pension was accorded with effect from February, 1998 to February, 1999. In this very letter it was made clear that until the conclusion of the police case pending against the petitioner, no final order will be issued in terms of Rule 59 of the C.C. Act (Pension Rules, 1972). Despite of this order no payment was made to the petitioner. A demand draft for a sum of Rs. 55,048.00/- was issued on 28.5.1999 in the name of the petitioner. The petitioner is presently drawing only provisional pension but neither the gratuity nor other retirement benefits and final pension has been paid to him on account of the police case vide Danapur PVS. Case No. 302/88 instituted for alleged offence under Sections 406, 409 and 120-B of the Indian Penal Code. It has been submitted that on 11.7.1989 one Kamla Mahto, Assistant Grade I of the Depot Shed informed the Assistant Manager of the Food Storage Depot, Phulwarisharif about the shortage of 35 bags of imported sugar from stock No. 3-A and 33/99, 5 bags short in stack No. 3-A/9 and 31 bags in stack No. 3-A/12. It was also stated that normally the each bag contains 50 K.Gs. sugar and as such 35 bags of shortage comes to about 18 quintals of sugar. The FIR was instituted against unknown persons. In course of investigation though nothing was said against the petitioner by the witnesses indicating his complicity in the case, the name of the petitioner was incorporated in the charge-sheet as an accused. The petitioner was on leave from 4th July, 1988 to 11th July, 1988. He was not present in the godown during the period when the bags were found missing. Since the charge-sheet was submitted against the petitioner cognizance was taken against him, Kamla Mahto and others. Kamla Mahto filed Cr. Misc. No. 11940 of 1992 for quashing the order by which charge was framed for the offence punishable under Sections 406 and 409 as well as 120-B of the Indian Penal Code. This Cr. Misc. application was allowed by order dated 21.8.1997 and criminal case against Kamla Mahto was quashed. Another accused Ram Chandra Prasad also filed Cr. Misc. No. 27430 of 1999 and criminal case against him has also been quashed by order dated 20.2.2000. Kamla Mahto was given promotion after quashing of the criminal prosecution. He superannuated thereafter and he has been given the entire retirement benefits. Petitioner has also filed Cr. Misc. No. 14423 of 1998 against the order of framing charge with a prayer to quash the entire criminal proceeding against him which has been admitted by order dated 3.12.1998. In which further proceeding has been stayed and the case is pending for final disposal.
(4.) Contention of the petitioner is that no departmental proceeding is pending against him and similar criminal case against other accused, have already been quashed. Further proceeding of the criminal case against him has been stayed by the High Court as such there is nothing against him showing a case of proved misconduct. Only in case of proved misconduct under Rule 69 (i)(c) of CCF, Rule his pension and pensionary dues could have been withheld by the authority. Since it is not a case of proved misconduct and similar criminal case against other co=-accused have already been quashed, the respondents should be directed to make payment of his entire retiral dues as well as the pension and arrears of pension.
(5.) The petitioner has placed reliance on a decision in the case of Bajrangdeo Narain Sinha v. State of Bihar and Ors., 1999 (3) PLJR 949. In this decision reliance has been placed upon a decision of the Supreme Court in the case of D.V. Kapoor v. Union of India and Ors., AIR 1990 SC 1923, for the principle that unless the pensioner is found guilty of misconduct in a departmental or a judicial proceeding, any part of his pension cannot be withheld. In that case the Supreme Court was considering Rule 9 of the Civil Services Pension Rules, 1972. After considering other decisions including the decision in the case of State of Bihar and Ors. v. Idris Ansari, AIR 1995 SCW 2886, it was held that it is only in the case of proved misconduct that a part or whole of pension can be withheld.
(6.) A counter affidavit has been filed by the respondent Nos. 1 to 3, wherein it has been admitted that in case, of petitioner Central Civil Services (Pension) Rules, 1972 will be applicable as per Section 12-A of the Food Corporations Act, 1964. The petitioner after retirement has been granted 90% provisional pension as per the Rules of the Government of India and if he is acquitted in the criminal case his pension will be fixed and he will get 100% pension and gratuity as per his entitlement.
(7.) The petitioner has placed reliance on the decision reported in 1999 (3) PLJR 949 which fully covers the case of the petitioner, but recently I have occasion to consider the decision i.e. 1999 (3) PLJR 949 and the decision reported in AIR 199
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4 SC 1484, i.e. Jarnail Singh v. Ministry of Home Affairs and Ors. By this decision the decision reported in AIR 1990 SC 1923, D.V. Kapoor v. Union of India and Ors. has been overruled. 6. Considering the fact that the decision reported in 1999 (3) PLJR 949, has been decided placing reliance on AIR 1990 SC 1923 which was already over ruled by the decision reported in AIR 1994 SC 1484, the decision in Bajrangdeo Narayan Sinha and Ors. v. State of Bihar and Ors., cannot be held to be a good law. So far 1999 (3) PLJR 949 is concerned, it has been referred to a larger bench in C.W.J.C. No. 13803 of 2002. In this view of the matter the present case is also referred to a larger bench along with C.W.J.C. No. 13803 of 2002.