1 WRIT PETITIQN UNDER ARTICLE 226 OF’ THE» CO’NSTITUTIoN OFE INDIA ~ > ~ p IN THE HON’BLE HIGH COURT OFI CHHATTISGARH AT BILASPUR 3mm 3mm @D W.P. S NO. 24/0 zw L040 / PETITIONER Dasrathi Sahu, S/ 3 Late Deen Bandhu r Sahu, aged about 62 years, Retired § Assistant Director -Chhattisgarh Rajya § Krishi Vipnen ‘Eiroard, R/o Sarxjay Nagar, Sara1pa11,g RS. 86 Tahs11 — Saraipali, District-Mahasamund (C.G.) é i NV VERSUS x 1n RESPbNDENTS 1) /’State of Chhgttisgarh, Through : iii Secretary, Department of A Agriculture, D.K.S. Bhawan, Mantralaya, Raipur (C.G.) 2) , ‘ganaging Director, Chhattisgarh Rajya Krishi Vipnan Board — Ravigram, Beej Bhawan, Raipur, District-Raiptlr (C.G.)‘» ‘ 'aateé 68.1“23200'9'3(‘ ‘ ‘ T' :re‘spbndentaialuthori g . Shri Pradhan, learned counsel appearing for the petitioner submits that the petitioner has been issued no-dues—certificate but without any rhyme or reason, his gratuity amount has been Withheld only on the ground that complaint is pending against him. Whereas, in fact, the complaint has not yet been registered or any cognizance has been taken which is evident from the order sheets (Annexure P/l6). Shri Pradhan next contends that even otherwise, the petitioner has retired way back 31.12.2005 and the alleged complaint was filed on 23.05.2008. . On the other hand, Shri Thakur, learned counsel appearing for the respondent No. 2 submits that the gratuity amount of the petitioner has been withheld on account of the pendency of judicial proceedings against the petitioner in the Court of Judicial Magistrate First Class, Saraipali for embezzlement of. Rs. lO;l8,290/— (Annexure R/4). He further submits that the provisions of Chhattisgarh Civil Services (Pension) Rules, 1976 (for short ‘the Rules, 1976’) is applicable to the employees of the respondent-Board. Shri Thakur next contends that Rule 64 of the Rules, 1976, provides for withholding of gratuity until the conclusion of the departmental or judicial proceedings and passing of the fmal order thereon. . Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. . There is no dispute that no departmental enquiry is pending. After. retirement of the petitioner on 31.12.2005, a purported complaint was filed on 23.05.2008 (Annexure R/4), the same is at the stage of recording of evidence. No summons/notice has been issued till date and, as such, itlcannot be held that a judicial proceeding is pending. On n -. 1 the last date of hearing Le. 11.1 1.2010, a copy of the application was supplied and before that, examination of complainant’s witnesses was not over. Under Rule 64 of the Rules, 1976, gratuity and pension can e be withheld when there is a departmental enquiry or judicial proceeding, till conclusion of the proceeding and issue of flnal order. 7. Rule 64 ofthe Rules, 1976 reads as under: 64. Provisional pension where departmental or judicial proceeding may be pending.-(1)(a) In respect of Govemment servants refer to in sub- rule(4) of rule 9 the Head of Office shall authorize the payment of provisional pension not exceeding ‘ the maximum pension and 50% gratuity taking into consideration the gravity of charges leveled against such Government servant, which would have been admissible on the basis of qualifying service up to the date of retirement of the Govemment servant or if he was under Qt suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension. (b) The provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office during the period commencing from the da‘te of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. (c) Provisional gratuity shall be drawn on establishment pay bill and paid to retired Govemment servant by the Head of Office after adjusting dues mentioned in sub-rule (2) of rule 60, under intimation to Audit Office. Payment of provisional pension/gratuity made under sub-rule (1) shall be adjusted against final retirement benefit sanctioned to such Govemment servant upon conclusion of such proceedings, but no recovery shall be made where the pension/ gratuity finally sanctioned is less than the provisional pension/gratuity or the pension/ gratuity is reduced or withheld either permanently ‘ or for a specified period. 8. ‘Pending judicial proceeding’ is defined in Advanced Law Lexicon, P.Ramanath Aiyar, 3'd Edition 2005, as under: “Pending judicial proceeding. A judicial proceeding is said to be pending- (A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise; (B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898, or any other law- (i) Where it relates to the commission of an offence, when the charge-sheet or challan is filed, or when the Court issues summons or warrant, as the case may be against the accused,’and (ii) in any other case, when the Court fakes cognizance of the matter to which the prOceeding relates, and in the case of a civil or criminal proceeding. [Contempt of Courts Act (70 of 1971), s.3 Expln. (a)].” 9. In the case on hand, the-Court has not taken cognizance as no summons/notice/warrant has been issued on the basis of complaint. Thus, filing of the complaint cannot be held that a judicial proceeding is pending. Thus, the pensionary benefits and gratuity cannot be withheld under the provisions of section 64 of the Act, 1976, as aforestated. 10. The word ‘complaint’ has been defined under section 2(d) of the Code of Criminal Procedure, 1973, which reads as under: “Complaint” means any allegation made orally or in writing to a Magistrate, with a View to his taking action under-this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 11. Cognizance‘of the offence would be taken only ader having examined the complaint, a summon/warrant is issued. The Supreme Court, in S.K.Sz'nha, ChiefEnforcement 0]??ce v. Videocon International Ltd. & Others], held as underr ,/ 1 (2008) 2 SCC 492 “19. The expression “co nizance” has not been defined in the Code. But e word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of‘judicially”. It indicates the point when a court or’ a Magistrate'ta‘lgesjudicial notice of an offence With a View to 1n1t1at1ng proceedlngs 1n respect of such offence said to have been committed by SO 20. “Taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate commiss10n apglies o an offence his mind Cognizance to_ the suspected is taken prior to commencement of criminal proceedings. Taking of cognizance is thus _a sine qua non_or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an ' offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken COgl‘llZaI’lce . 22. Chapter XV (Sections 200-203) relates to “Complaints to Magistrates” and covers cases before actual commencement of proceedings in a court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of rocess either to inquire into the case himsel or direct an investigation to be made b a police officer or by such other person as he thinks fit for the purpose of deciding whether there issufficient ground for proceeding further: The underlying obJect of the inquiry under Section 202 is to'ascertain whether there 1s prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is supiciem ground for proceeding with the matter and not whether there is sw’icient ground for conviction ofthe accused.” 12.Thus, in the case on hand, it cannot be held that a judicial proceeding was pending‘against the petitioner as no action has been taken on the h complaint made before the Magistrate, as no summons or warrant as been issued till date. g 13.In View of the foregoing, when the petitioner became Eentitled to pensionary benefits and gratuity after the date of retirement in January, 2006 itself, there was no reason to wait till May, 2008 when \\\ \' the alleged complaint was filed and on the said complaint, no meOne . \‘ cognizance has been taken by issuing summons/notice or warrant as required under the provisions of law. Thus, the action of the respondent authorities by Withholding the gratuity and retiral benefits, is unsustainable in law. l4.For the reasons mentioned hereinabove, the letter dated 08.12.2009 (Annexure P/l) is quashed. The respondent No. 2 is directed to release all the retrial dues including gratuity with interest, as admissible under the provisions of law, within a period of six weeks from today. 15. The petition is allowed. There shall be no order asto costs. f/i-J Sd/— SATISH K. AGNIHOTRI Judge 1v Amit