CWP No.15700 of 2006 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15700 of 2006 Date of Decision: 28.5.2008 Shangara Singh ..Petitioner. Vs. The State of Punjab and others ..Respondents. CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Vipul Aggarwal, Advocate for the petitioner. Mr.P.C.Goyal, Sr.DAG Punjab for the respondents. * * * RAKESH KUMAR JAIN, J. This writ petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India seeking a direction to the respondents to release the retiral benefits w.e.f. 1.11.2000 along with interest @ 18% p.a. from the date of accrual till the date of actual payment in view of the departmental proceedings having been dropped and for quashing the order dated 7.10.2003 passed by respondent No.3 who is not competent Authority to pass the order under the Rules called Punjab Roadways (operational) State Service, Class-III Rules, 1977 because respondent No.2 is the Appointing and Punishing Authority of the petitioner and further to direct respondent No.2 to consider and grant the amount of gratuity etc. to the petitioner under Rule 9.9(3) of Punjab Civil Services Rules, Volume II as the same has been granted to the similarly situated persons and further direction to the respondents to finalise enquiry/challan CWP No.15700 of 2006 -2 - and to file cancellation report in case FIR Nos.61 and 62 both dated 26.11.1999. The facts, as pleaded in the petition are that the petitioner was appointed as a Conductor in Punjab Roadways on 15.11.1963. He was promoted to the post of Adda conductor and then to the post of Sub Inspector. He was further promoted to the post of Inspector on 1.4.1992 and was superannuated on 31.5.2000. On 26.11.1999, FIR Nos.61 and 62 were registered at Police Station Vigilance Bureau, Jalandhar under Sections 7,13(1)d read with 13(2), 88 of Prevention of Corruption Act read with Sections 409, 467, 468, 471, 473, 120-B IPC against the petitioner and many other employees of the Punjab Roadways. The petitioner was arrested on 29.11.1999 and was released on regular bail by District and Sessions Judge, Gurdaspur on 17.12.1999. After the registration of the FIR, a thorough enquiry was conducted by the police. The Enquiry Officer Sh.D.S.Guru, IAS, Secretary, Health and Family Welfare Department in his enquiry report, has concluded that the Transport Department may consider to issue sanction for the prosecution only against two conductors namely Krishan Lal and Yash Pal and the names of others were dropped. As per the findings of the Special Secretary, Transport Department and Vidhan Sabha Committee report, no criminal case was made out against the petitioner and that report had been sent to the Additional Secretary, Govt. of Punjab, Vigilance Department. The petitioner, who was superannuated on 31.5.2000 was not paid all the pensionary benefits. However, he was granted provisional pension of Rs.3000/- plus dearness allowance whereas the officials of the Punjab Roadways against whom FIR Nos.61 and 62 dated 26.11.1999 was registered along with the petitioner, were granted gratuity CWP No.15700 of 2006 -3 - under Rule 9.9(3) of Punjab Civil Services Rules, Volume II except for the petitioner. The petitioner has quoted examples of such employees who have been paid gratuity and produced documents on record as Annexures P-1 to P-3. The petitioner has maintained that since departmental proceedings have already been dropped and as per enquiry report, no criminal case is made out against him, he has been illegally deprived of his pensionary benefits i.e. full pension with dearness allowance, gratuity and commutation of pension. The petitioner had also served legal notice dated 12.11.2002 for releasing the pensionary benefits and also gratuity. The petitioner has further pleaded that since his pensionary benefits were not released, he had to file CWP No.20175 of 2002. This writ petition, however, was disposed of on 19.12.2003 vide Annexure P-5 directing the respondents to decide the legal notice of the petitioner dated 12.11.2002 by passing a speaking order within a period of four months. However, said legal notice was not decided as per the directions, therefore, the petitioner served another legal notice dated 8.7.2003. Respondent No.3, who was not a competent Authority to comply with order passed by the High Court rejected the claim of the petitioner on 7.10.2003. The petitioner thus, having no other way, filed another Writ Petition No.18796 of 2003 but the same was dismissed on 4.12.2003 on the ground that no gratuity is payable to an employee till the conclusion of departmental or judicial proceedings. The petitioner has further pleaded that sanction was sought to prosecute only against two conductors namely Krishan Lal and Yash Pal in the enquiry dated 2.12.2005. In view of this finding of the Enquiry Officer, the petitioner sent another representation on 30.12.2005 claiming that the departmental proceedings have been dropped against the petitioner, he may be granted his retiral benefits. The CWP No.15700 of 2006 -4 - respondents did not react to the representation. The petitioner thereafter filed a Review Application No.2 of 2006 in CWP No.18796 of 2003 which was ultimately withdrawn on 10.2.2006 with liberty to file a fresh writ petition. Thereafter, the petitioner filed CWP No.4747 of 2006, which was withdrawn on 27.3.2006 as it suffered certain technical defects. The petitioner has now filed the present writ petition in which after notice of motion, respondents No.1 to 4 have filed written statement through Mandeep Singh, IAS, Director, State Transport, Punjab, Chandigarh who has alleged that the criminal case is pending against the petitioner, therefore, pensionary benefits are not released. The petitioner filed Miscellaneous Application No.19011 of 2007 seeking permission of the Court to place on record Annexures P-13 and P-14 which are challans under Section 173 Cr.P.C. in FIR Nos.61 and 62 dated 26.11.1999. CM was allowed and documents were taken on record. Learned counsel for the petitioner has vehemently argued that the only ground for refusing the release of retiral benefits and gratuity is pendency of criminal case registered vide FIR Nos.61 and 62 dated 26.11.1999 whereas the documents Annexures P-13 and P-14 do not show that the petitioner has been sent up as an accused in the challan for the purpose of trial. The petitioner has indicated that in document Annexure P- 13 which pertains to FIR No.61, the only accused is Yash Pal whereas in FIR No.62 the only accused is Kishan Lal. It is argued by learned counsel for the petitioner that since the petitioner is not an accused before the Court of law much less in the criminal proceedings, there is no basis with the respondents to say that he is involved in a criminal case which has not been finalised as a result of which his retiral benefits and gratuity have been with- CWP No.15700 of 2006 -5 - held. Learned counsel for the State-respondent has argued that a criminal case was registered against the petitioner, although as per documents P-13 and P-14 which have not been controverted by the State by producing any document or filing any counter to that, the petitioner is not an accused before the Court in challan. We have heard learned counsel for the parties and have perused the record with their assistance. From the resume of the facts narrated here-in-above, one thing is clear that the petitioner has knocked the door of this Court time and again for getting his retiral benefits. At one point of time writ petition filed by the petitioner in CWP No.18796 of 2003 was dismissed by this Court on 4.12.2003 on the ground that in view of Rule 9.14 (c) of the Punjab Civil Services Rules, Volume II, the amount of gratuity is not payable till the conclusion of criminal proceedings and it was also observed that criminal proceedings are pending against the petitioner. However, position has thereafter changed because on 4.12.2006, DSP Vigilance Bureau had produced challan under Section 173 Cr.P.C. in the Court in respect of FIR Nos.61 and 62 dated 26.11.1999 which are attached as Annexures P-13 and P-14 with the record in which name of the petitioner is conspicuously absent. Written statement filed by the respondents on 16.11.2006 is also prior in time to the presentation of challan dated 4.12.2006 in which the State had taken a stand that the criminal proceedings are pending against the petitioner as a result of which the retiral benefits can not be released to him. There is no dispute with the rule of law as enumerated in Rule 9.14 (c) of the Punjab Civil Services Rules, Volume II, that no gratuity shall be paid to CWP No.15700 of 2006 -6 - the Govt. employee till the conclusion of the departmental or judicial proceedings and issue final orders thereon. But in the present case, vide order Annexure P-9, departmental proceedings have already been dropped against the petitioner and so far as criminal proceedings are concerned, the petitioner has not been sent up as an accused to face trial, therefore, it can not be presumed by any stretch of imagination that the petitioner is facing criminal trial the conclusion of which has to be awaited for the purpose of releasing the gratuity or the retiral benefits. It is well settled that pension is not a bounty, payable on the sweet will and pleasure of the Government rather the right to pension is a valuable right vesting in a Government servant. It can not be withheld by the State by mere executive order in violation of the rules. Since neither any departmental proceedings nor criminal proceedings are pending against the petitioner as has been discussed here-in-above, this writ petition is allowed and the respondents are directed to release all the retiral benefits to the petitioner w.e.f. 1.11.2000 along with interest @ 9% p.a. from the date of accrual till the date of payment. However, there shall be no order as to costs. (Rakesh Kumar Jain) Judge ( Mehtab S.Gill ) 28.5.2008 Judge Meenu