CWP No. 20204 of 2005 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 20204 of 2005 Date of decision : 29.07.2011 Amin Chand ......Petitioner versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. D.R. Bansal, Advocate for the petitioner. Mr. Ram Lal Gupta, Addl.A.G. Punjab **** RITU BAHRI, J. (Oral) Petitioner is seeking quashing of charge sheet dated 28.04.2005 (Annexure P-9) and any other proceedings contemplated against the petitioner after the passage of four years of occurrence and further direction to the respondents to pay the petitioner his retiral benefits including regular pension, leave encashment, pension commutation, gratuity etc with 12% interest. The petitioner joined the Director, Food and Supplies Department, Punjab on 15.01.1965. He retired as District Food and Supplied Controller from Mukatsar on 31.01.2001 on attaining the age of supperanuation. After the retirement he was not being released his pension and pensionary/retiral benefits as some departmental proceedings were pending against him. However, the petitioner was not in knowledge of any such proceedings. Thereafter, the petitioner received a charge-sheet under Rule 8 of Punjab Civil Services CWP No. 20204 of 2005 -2- (Punishment and Appeal) Rules, 1970 from the respondents vide Memo date 28.05.2001 i.e after four years of his retirement. The respondents ordered inquiry in to the same and Sh. D.K.Jain IAS (Retd.) was appointed as Enquiry Officer. The enquiry officer after conducting the enquiry submitted enquiry report on 01.04.2002 to the respondents in which no charge levelled against the petitioner was proved. The competent authority after considering the findings of the enquiry officer and other material on record dropped the charges against the petitioner vide order dated 15.01.2003 (Annexure P-2). Vide Annexure P-3, the respondents vide order dated 18.06.2001 sanctioned a provisional pension to the petitioner amounting to ` 5000/- per month (Annexure P-3) but the petitioner did not get his retiral benefits, so, he approached the respondents authorities time and again that the retiral benefits be released to him as the charges against the petitioner were dropped. Thereafter, he got a legal notice served on the respondents vide letter dated 21.08.2003 (annexure P-4). In spite of the legal notice, there was no response from the department. Subsequently, the petitioner approached this Court by filing CWP NO. 13528 of 2004 for releasing of his retiral benefits. The High Court vide order dated 03.09.2004 directed the respondents to decide the legal notice of the petitioner within a period of two months form the receipt of certified copy of this order (Annexure P-5). In compliance of order dated 03.09.2004 (Annexure P-5), the respondent- department passed a speaking order (Annexure P-6) by which ` 80,592/- have since been recovered from the petitioner and recovery of ` 5,76,348/- is still under consideration. Vide letter dated 31.01.2005 (Annexure P-7), respondent No. 3 has stopped the payment of provisional pension to the petitioner for CWP No. 20204 of 2005 -3- which a letter dated 31.01.2005 has been sent to respondent No. 2. Thereafter, the petitioner again approached this Court by filing CWP No. 2840 of 2005 in which notice of motion was issued to the respondents and respondents filed written statement (Annexure P-8). After the filing of this writ petition, the petitioner was paid provisional pension. During the pendency of the above Civil Writ Petition, another charge sheet was served upon the petitioner on 28.04.2005 (Annexure P-9) through the letter of respondent No. 3 dated 15.03.2005. On the other hand, learned counsel for the respondents had submitted that CWP No. 2840 of 2005 was dismissed by the High Court on 22.09.2005. It has further been submitted that at present another charge sheet dated 28.01.2005 and FIR No. 91 dated 10.09.2001 are still pending against him, registered at Police Station Guru Har Sahai (Ferozepur) under Sections 406/420/466/468/474/477-A/120-B of IPC. Learned counsel for the petitioner has challenged the second charge sheet dated 28.04.2005 (Annexure P-9) by placing reliance upon the judgment of this Court rendered in the case of 'Manohar Singh vs. Punjab State Electricity Board and others, 2006(2) RSJ 316 wherein it was held that for misconduct of embezzlement of small amounts for which the person already stood punished as one increment was stopped without future effect and no other departmental proceedings being pending at the time of superannuation, respondent could not invoke Rule 2.2(b) on the ground that the criminal case was still pending, for the same misconduct. The respondent would have no jurisdiction to withhold the pensionary benefits. Proceedings under Rule 2.2 (b) of the Rules can only be initiated on the conclusion of criminal trial and if the CWP No. 20204 of 2005 -4- person is found guilty. Learned counsel for the petitioner has argued that the charge sheet dated 28.04.2005 (Annexure P-9) is liable to be set aside, as the same has been issued after four years of his retrenchment. The charge sheet after four years could not be served upon the petitioner. Reference has been made to letter dated 30.11.2000 (Annexure P-10) whereby the paddy had been allotted to M/s MD Rice Mills for milling of rice. The miller was to supply the rice upto 28.02.2001. Thereafter, the stock was verified by Kartar Singh AFSO on 27.03.2001 i.e after retirement of the petitioner and gave the report (Annexure P-11). As per this report, there was no shortfall of rice. The petitioner retired on 31.01.2001, so, he could not be made liable for any loss. In view of the inspection report (Annexure P-11), instructions were issued on 11.12.2002 (Annexure P-12). In this letter, the department had conveyed that once the paddy had been given in the custody of the millers, the officers of the department should not be involved in the case of misappropriation. While investigating the cases, the Vigilance Bureau has registered cases against the millers in relation to misappropriation of huge quantity of paddy stored with them. Mr. Ram Lal Gupta, Addl.A.G. Punjab has argued that petitioner is facing trial in FIR No. 91 dated 10.09.2001 under Sections 406/420/466/468/474/477-A/120-B of IPC, which has been registered by the Vigilance Department against M/s Vohra Agro Privat Limited and others, Guru Har Sahai, District Ferozepur. Petitioner is also facing a charge sheet in other case which has been served to him within four years of his retirement. CWP No. 20204 of 2005 -5- Reference has been made to award passed by the Arbitrator on 23.04.2004 for an amount of ` 9,55,501/- along with interest against District Food & Supplies Contoller, Ferozepur. The petitioner is responsible for the above said loss. He has further submitted that the District Food & Supplies Controller, Ferozepur had filed claim petition before the Arbitrator amounting to ` 1,16,12,020/- but the Arbitrator passed the award on 23.04.2004 for an amount of ` 9,55,501/- along with interest admissible to both the parties as fixed by CFA (Controller Food Accounts) from time to time be recovered from the party. The petitioner is responsible for the loss to the Government. Heard learned counsel for the parties. Rule 2.2(b) of Punjab Civil Services Volume-II envisages as under:- “The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave mis- conduct or negligence during the period of his service, including service rendered upon re-employment after retirement : provided that – (1)Such departmental proceedings, if instituted while the officer was in service , whether before his retirement or during his re-employment , shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced the same manner as if the officer had continued in service ; (2)Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Government ; (ii) shall not be in respect of any event which took place more than four years before such institution ; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service CWP No. 20204 of 2005 -6- could be made in relation to the officer during his service. (3) No such judicial proceedings , if not instituted while the officer 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 an event which took place more than four years before such institution ; and The public Service Commission should be consulted before final orders are passed. Explanation.- For the purpose of this rule— ( a ) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date ; and ( b ) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes congnizance, is made ; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the court”. The petitioner retired on 31.01.2001, the charge sheet dated 15.01.2005 was served upon the petitioner on 28.04.2005 (Annexure P-9). The allegation in the charge-sheet is that M/s MD Rice Mills was allotted paddy under Punjab Rice Procurement (Levy) Order 1983 . The Mill was to deliever rice but there was a short fall of supply of paddy to the extent of 23963.20 qtl and the Government suffered a loss of ` 248.70 lacs. Thus, the petitioner was careless, unfaithful and irresponsible officer. The charge sheet was served upon him beyond four years of the date of the occurrence. The paddy was allotted to M/s MD Rice Mills ON 30.11.2000. This rice was to be milled by 28.02.2001 and thereafter stock was verified by Kartar Singh AFSO on 27.03.2001 (Annexure P- 11). There was no shortfall of paddy at that time. Apart from the impugned charge sheet dated 28.04.2005 (Annexure P-9), the charge sheet dated 28.01.2005, which has been served upon him CWP No. 20204 of 2005 -7- within four years of his retrenchment, is pending against the petitioner. He is also facing trial in FIR No. 91 dated 10.09.2001, registered at Police Station Guru Har Sahai (Ferozepur) under Sections 406/420/466/468/474/477-A/120-B of IPC. In arbitration proceedings, an award has been passed on 23.04.2004 for an amount of ` 9,55,501/- along with interest against District Food & Supplies Contoller, Ferozepur. Pendency of charge sheet dated 28.01.2005 and the fact that the petitioner is facing trial in FIR No. 91 dated 10.09.2001 under Sections 406/420/466/468/474/477-A/120-B of IPC, has no bearing on the merits of the present case. There is no order of recovery against the petitioner. Reference has been made to arbitration award dated 23.04.2004 whereby an amount of ` 9,55,501/- along with interest has been passed but no recovery order against the petitioner has been placed on record by the respondent-department. As far as pendency of other charges are concerned, they are not the subject matter of this writ petition. The present petition is allowed, charge sheet dated 28.04.2005 (Annexure P-9) is quashed. A direction is given to the respondent not to retain the retiral benefits of the petitioner due to pendency of proceedings initiated against him, vide charge sheet dated 28.04.2005 (annexure P-9). If no proceedings are pending against the petitioner, the benefits be released to him along with 6% interest, within a period of four months from the date of receipt of certified copy of this order. No order as to costs. July 29, 2011 (RITU BAHRI) G.Arora JUDGE