IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 871 of 2009 Reserved on: 22.12.2009 Date of decision: 4.01.2010 Mangal Dass Saini …. Petitioner Versus H.P.S.E.B. & Anr. ………. Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. Dinesh Bhanot, Advocate. For the respondents: Mr. Shashi Shirshoo, Advocate. Per V.K. Ahuja, J.: This judgment shall dispose of a civil writ petition filed by the petitioner under Article 226 of the Constitution of India for issuance of writ of mandamus to the respondents to release the retiral benefits in favour of the petitioner. Briefly stated, the facts of the case as alleged by the petitioner are that he was working with the respondents as Private Secretary to the Chief Engineer. An FIR was registered in the year 2000 at Mandi against the petitioner and others for misappropriation. A common departmental inquiry was ordered by respondent No.1 as against the petitioner and others. The findings of the departmental inquiry were made open against all the persons 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 except the petitioner and all other persons were exonerated and were promoted also. The findings qua the petitioner were not made open and he filed CWP No. 1185/2008 before this Court. The following order as alleged by the petitioner was passed by the Court:- “Learned Counsel for the respondent fairly states that a final decision would be taken, if not taken, within a period of two months from today in the matter and it would be conveyed to the petitioner.” Copy of the order has not been placed on record. It was further alleged by the petitioner that he was exonerated of the charges on the basis of the inquiry report as per the decision conveyed by respondent No.1 vide letter dated 23.9.2008. The petitioner represented to the department, but since no action was taken by the department, he has filed the present writ petition for issuing directions to the respondents to release the retiral benefits as have been done in the case of other persons. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner were that the petitioner was entitled to all the retiral benefits once the departmental inquiry has concluded in his favour and, therefore, the petitioner was entitled to the release of the pension in his favour. The second plea made was that he was also entitled to the leave encashment, to which he was entitled and as such, the present writ petition deserves to be allowed accordingly. To substantiate his plea, the learned counsel for the petitioner has relied upon the decision of the Apex Court in Man Singh Vs. State of Haryana and others, (2008) 12 Supreme 3 Court Cases 331, wherein their Lordships had considered the question and had concluded that the administrative action has to be just and reasonable and fairness in action was required. It was also observed that State action, whether legislative, quasi-judicial or administrative, is subject to judicial review on these grounds, for the reason that they are opposed to concept of fairness which in turn is a facet of equality. Their Lordships had held that the punishment awarded was arbitrary and unfair and accordingly, the relief was granted, which is not so in the present case. Reliance was placed upon the decision in C.L. Verma Vs. State of Madhya Pradesh and another, 1990(1) S.L.R. 134. In that case, the employee attained the age of superannuation two days prior to the order of suspension. It was held that the Government had no right to take disciplinary action against him after he had already superannuated. The decision was passed upon the facts of that case and the facts of the present case are not similar to the facts in that case. In the present case, coming to the first question in regard to the retiral benefits, our attention has been drawn to Rule 9(1)(4) of CCS Pension Rules, 1972, which reads as under:- [9(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement: 4 Provided that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees One thousand nine hundred and thirteen from 1-4-2004 – see GID below Rule 49) per mensem.] 9(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. From a perusal of these rules, it is clear that the Government can withhold the pension in case the departmental or judicial proceedings are pending as against any employee. It has not been disputed that the departmental inquiry has been concluded and that the petitioner has been exonerated of the charges, but it has not been disputed by the petitioner that he is facing trial for the criminal offence in the Court of Judicial Magistrate Ist Class, Mandi, which has not concluded so far. The pension can be withheld by the authority in either case i.e. if the disciplinary proceeding is pending or until the conclusion of the judicial proceedings against an employee. The provisional pension as alleged by the petitioner himself is being paid to him and as such, he was not entitled to the final pension till the conclusion of the proceedings pending in the criminal Court. Therefore, the petitioner was not entitled to the first relief in regard to the release of pension in his favour. 5 Coming to the second relief claimed by him, it was not specifically alleged by the petitioner in the petition that he has not been granted the leave encashment, though the words ‘retiral benefits’ only were mentioned. However, our attention has been drawn to Rule 39(3) of CCS Leave Rules, 1972, which reads as under:- “39(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.” It is clear from a perusal of the above rules that the petitioner will be eligible to the amount so withheld after conclusion of the criminal proceedings pending as against him and on the same ground as mentioned above, the petitioner was not entitled to any benefit of leave encashment till the conclusion of the judicial proceedings. Coming to the allegations made that other persons were granted promotion, the petitioner has not alleged that he was also entitled to promotion from which date against which post and no such facts have been alleged except making general allegations in this regard that some persons who were also facing departmental inquiry have been granted promotion. He has not alleged that he was denied promotion to which post and from which date he was entitled 6 and whether the other persons named in the petition were also facing some criminal case or not. In the absence of any such fact alleged or proved from record, the petitioner is not entitled to any benefit in this regard and insofar as the relief claimed by him of retiral benefit is concerned as mentioned above, the petitioner was not entitled to the release of such benefit at this stage. In view of the above discussion, we hold that there is no merit in the petition filed by the petitioner, which is dismissed accordingly. There is no order as to costs. ( Deepak Gupta ), Judge ( V.K. Ahuja ), January 4, 2010 Judge (BSS) 7