1 SBCWP NO.5301-2001 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5301/2000. : : Rajendra Kumar Saxena Vs. State of Rajasthan & Ors. : : Date of Order 19.1.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms. Namita Parihar for the petitioner. Mr. O.P.Sharma for the respondent (s). Mr.Hemant Gupta, Addl.Govt.Counsel for the State. Reportable Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner challenging the order dated 4.9.2000 of Rajasthan Civil Services Appellate Tribunal, Jaipur whereby appeal of the petitioner was dismissed. The petitioner in the aforesaid appeal challenged the action of the respondents in withholding the payment of his gratuity, commutation of pension and final pension on the ground that a criminal case was pending against him. 2 SBCWP NO.5301-2001 3. Learned counsel for the petitioner argued that the petitioner retired from service on 31.3.1999 and as on that date no criminal case was pending against him in as much as sanction for filing challan against the petitioner of the criminal case, which was made basis, was itself issued on 21.6.1999 in relation to instance of year of 1991-1992. It was argued that the petitioner had no information of the said criminal case when he retired and it has been mentioned even in the order passed by the Tribunal that even at that time matter was pending on the stage of preliminary investigation. Learned counsel referred to no dues certificate issued by the Department on 6.2.1999 showing that no departmental proceeding was pending against him. A reference was made to Rule 7 of the Rajasthan Civil Service (Pension) Rules, 1996 to argue that Sub-rule 3 thereof provides that no judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such institution. It was argued that Rule 6 (b) provides that judicial proceedings shall be deemed to be instituted in the 3 SBCWP NO.5301-2001 case of criminal proceeding, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance. In the present case, challan against the petitioner was filed on 13.7.1999 which is 3 ½ months after the date of retirement and therefore, retiral dues of the petitioner could not be withheld. Learned counsel for the petitioner lastly submitted that the petitioner has been acquitted by the Special Judge, ACD Cases, Jaipur vide his judgment dated 7.6.2004, which fact she sought to substantiate by producing certified copy of the judgment. The wrong committed to the petitioner need to be remedied by awarding not only the withheld benefits but also the interest for the intervening period. Learned counsel for the petitioner also cited the judgment of Supreme Court in the case of UOI Vs. K.V. Janki Raman : 1991 (4) SCC, 109. 4. Shri O.P.Sharma, learned counsel for the respondents and Shri Hemant Gupta, learned Additional Government Counsel have opposed the writ petition and submitted that retiral benefits in question were liable to be withheld in view of Rule 90 of the Rules of 1996, which interalia provides that in view of Sub-rule (4) of Rule 7, the 4 SBCWP NO.5301-2001 Director, Pension Department, Rajasthan on receipt of pension case of the petitioner sanctioned the provisional pension but final pension case could not be sanctioned. Rule 90 (1) (c) provides that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders. The petitioner, therefore, could not be paid the amount of gratuity, family pension and commutation. It is, therefore, prayed that the writ petition be dismissed. 5. I have given my anxious consideration to the arguments aforesaid and perused the material on record. In order to appreciate the controversy involved in the present matter, it would be appropriate to reproduce Sub-rule (3) of Rule 7 of the Rules of 1996 :- “(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re- employment, shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such institution.” 5 SBCWP NO.5301-2001 What would be the meaning of word “instituted” has been clarified in the Sub-rule (6) (b) of Rule 7 of the Rules of 1996, which is reproduced as under :- “(b) judicial proceedings shall be deemed to be instituted - (i) in the case of criminal proceeding, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the court. “ 6. It is clear that rule making authority by use of the word “instituted” intended to convey institution of the judicial proceedings, whether criminal or civil, in the Court. Supreme Court in K.V.Jankiraman (supra) while considering the challenge to judgment passed by Central Tribunal, which interpreted Office Memorandum issued by Department of Personnel & Training dated 30.1.1982 on the subject of promotion of Officers in whose cases the sealed cover procedure has been followed. The memorandum provided that cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary 6 SBCWP NO.5301-2001 authority to initiate disciplinary proceedings or, (c) against whom prosecution has been launched in a Court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings. The Supreme Court particularly interpreted Clause IV of Para 3 of the said Office Memorandum and upheld conclusion of the Central Administrative Tribunal which held as under :- “It is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued.” The aforesaid judgment was rendered in the context of dispute with regard to invocation of sealed cover procedure but the ratio thereof would fully apply to the present case where benefits payable to an employee before 7 SBCWP NO.5301-2001 the date of retirement are sought to be withheld on the plea of institution of judicial proceedings against the Court of law. I am not inclined to upheld the arguments raised on behalf of the learned counsel for the respondents that since first information report against the petitioner had been lodged on 3.10.1994 and the matter was pending at the stage of preliminary enquiry when he retired and, therefore, it should be deemed that judicial proceeding has been instituted against the petitioner. Upholding such an argument would in fact negate Sub-rule (6) (b) of Rule 7 of the Rules of 1996 which clearly provides that judicial proceedings shall be deemed to be instituted in the case of criminal proceeding, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made. On the same analogy, the date of presentation in the case of civil proceeding has been held to be the date plaint has been presented in the Court as the date on which judicial proceeding is treated to have been instituted as provided by Sub-rule (6) (b) of Rule 7 of the Rules of 1996. Although the petitioner has been acquitted and, therefore, he is entitled to all the aforesaid benefits which is prayed, but nevertheless the petitioner is able to make out a case for redressal of his 8 SBCWP NO.5301-2001 grievance as the basis on which the respondents withheld the payment of gratuity, commutation and pension payable to him was wholly unfounded. In the result, this writ petition is allowed. The order of Tribunal dated 4.9.2000 is quashed and set aside. The respondents are directed to pay to the petitioner interest for the period during which the aforesaid payment was withheld by the respondents @ 9% per annum in terms of Rule 89 of Rajasthan Civil Service (Pension) Rules, 1996. Compliance of the judgment be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/9.