CIVIL WRIT PETITION NO. 16359 OF 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: May 13, 2008 Parties Name Arun Kumar Gupta ..PETITIONER VERSUS State of Haryana and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR JUSTICE K. C. PURI PRESENT: Mr. Raman B. Garg, Advocate, for the petitioner. Mr. Harish Rathee, Sr. D.A.G., Haryana; JASBIR SINGH, J. (oral) Order. By filing this writ petition, the petitioner has laid challenge to the order dated August 23, 2006, (P-10), vide which pensionary benefits were declined to him till decision of the departmental enquiry pending against the petitioner. Petitioner was working as an Assistant Excise and Taxation Officer and on account of his arrest in a criminal case, he was put under suspension on July 9, 2003( vide order dated August 5, 2003). During the currency of suspension, he superannuated on January 31, 2006. After his retirement, 75% provisional pension was released in his favour. He represented to the respondents for release of 100% pensionary benefits and also for disbursement of the amount towards leave encashment, death -cum CIVIL WRIT PETITION NO. 16359 OF 2006 -2- – retirement gratuity and computation of pension. Vide order under challenge, above said benefits were declined to him. On April 2, 2008, following contention of counsel for the petitioner was noticed by this Court : “Counsel for the petitioner, inter alia, by relying upon Rule 9 (15)(1)(a) of the Punjab Civil Services Rules, Volume II, (as applicable to the State of Haryana), asserts that the respondents cannot restrict the provisional pension to 75%, as the said rule does not empower the Government to pay provisional pension less than the pension admissible on the basis of qualifying service upto the date of retirement. The petitioner admittedly has been paid 75% of provisional pension.” In response to notice, issued by this Court, reply has been filed, wherein it has been stated that in view of the provisions of rule 2.2 read with rule 9.15 (b) of the Punjab Civil Service Rule, Volume II, as applicable to the State of Haryana, benefit has rightly been declined to the petitioner. Counsel for the parties heard. Provision of rule 9.15 of Punjab Civil Service Rules, Volume II, reads thus: “9.15. (1) (a) In respect of a Government employee referred to in rule 2.2 of these rules, the Audit Officer shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government employee, or if he was under suspension on the date of retirement, upto the date of immediately preceding the date on which he was placed CIVIL WRIT PETITION NO. 16359 OF 2006 -3- under suspension. (b) The provisional pension shall be authorised by the Audit Officer during the period commencing from the date of retirement upto and including the date on which, after the concluding of departmental or judicial proceedings, final orders are passed by the competent authority. ( c ) No gratuity shall be paid to the Government employee until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. (2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government employee upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.” A plain reading of the provision, referred to above, clearly indicates that it is incumbent for the respondent -State to release 100% pension (provisional) if Government servant has retired while under suspension. The calculation of qualifying period for pension has to be made till the date the official was put under suspension. Counsel for the respondents has failed to show as to under which provision of the rules, referred to above, petitioner's right to receive pension can be restricted to only 75% of the pension, admissible to him. So far as cut in pension in view of the provisions of Order 2 CIVIL WRIT PETITION NO. 16359 OF 2006 -4- Rule 2 of the above said Rules is concerned, the same can be made when a finding of guilt has come against the petitioner. Admittedly, proceedings are still pending. Similar controversy came up before this Court in Dr. Ishar Singh v. State of Punjab and another, 1994(3) Recent Services Judgments 543. A Full Bench of this Court opined that the Government has no right to with-hold or postpone pension or the payment of pension. The State is bound to release 100% pension at the time of retirement, may be provisionally. So far as benefit of leave encashment is concerned, counsel for the respondent has failed to show us any rule, under which the payment can be stopped. As per rule 9.15 (1)(c), amount of death -cum-retirement gratuity can be detained by the respondents. In view of facts, mentioned above, we allow this writ petition and direct the respondents to release 100% amount of pension to the petitioner after calculating the same till the date he was put under suspension. Amount of commutation of pension and leave encashment be also released in his favour. Needful be done within a period of one month from the date of receipt of copy of this order. ( Jasbir Singh ) Judge ( K. C. Puri ) May 13, 2008. Judge DKC