IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 20529 of 2006 (O&M) Date of Decision: 25.5.2011. Darshan Singh --Petitioner Versus State of Punjab and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Vivek Aggarwal, Advocate for the petitioner. Ms. Charu Tuli, Sr. D.A.G., Punjab. *** PERMOD KOHLI.J (ORAL) Petitioner joined the department of Industries, Punjab as a Clerk on 2.9.1965. After earning promotions to the post of Superintendent Grade-II he retired from service on 31.12.2003 on attaining the age of superannuation. In the year 2001 when the petitioner was still in service, an FIR No.50 dated 3.10.2001 for commission of offences punishable under sections 501/295-A, 153-A of I.P.C was registered against him at P.S. Nurpur Bedi and a challan is pending against him in the court of Chief Judicial Magistrate, Ambala. It seems that on registeration of the case the petitioner was placed under suspension vide order dated 9.10.2001, though, later reinstated vide order dated 17.4.2003 and during the period of suspension, he was initially paid 50% of the subsistence allowance which was later enhanced to 75%. After his retirement respondents withheld various retiral benefits of the petitioner. Even the admissible pension has not been paid. Respondents passed order dated 9.3.2004 for payment of only 75% provisional pension pending criminal proceedings against the petitioner. This petition has been filed challenging the aforementioned CWP No. 20529 of 2006 (O&M) -2- order with a further prayer for release of the retiral benefits. In para 4 of the petition, following claims have been made on account of his retirement:- “ (a) Petitioner is entitled to 100% provisional pension whereas 75% pension is being paid as per order dated 9.3.2004. (b) Commutation of pay. (c) Gratuity. (d) Interest on the delayed payment of GPF as it has been paid on 21.11.2004. (e) The Govt. is also not paying the enhancement in Dearness Allowance on the different occasion by the State Govt. since 1.1.2006 towards the payment of pension which is being paid 75% provisionally. (f) Arrears of 25% pension illegally retained vide order dated 9.3.2004 till the date of payment of the full pension along with interest thereon @ 12%. (g) Interest on the delayed payment of the retiral benefits including pension etc.” A detailed affidavit/reply has been filed. Respondents have justified non-payment of the full pension and withholding of the gratuity and other claims etc. invoking provisions of Rule 2.2 (b) of the Punjab Civil Services Rules, Vol.II, (hereinafter referred to as the Rules) in view of the pendency of criminal case against the petitioner, referred to above. However, it is stated that though, initially 75% pension was sanctioned as provisional pension, later, on re-consideration 100% provisional pension has been sanctioned and paid to the petitioner vide order dated 16.4.2007 (Annexure R-4). As regards payment of various other retiral claims are concerned, most of the claims like leave encashment, part of G.P.F and G.I.S already stand paid to the petitioner. Regarding non-payment of full G.P.F, it is stated that due to discrepancy in certain entries, there has been delay in making the payment. It is, however pleaded that the respondents CWP No. 20529 of 2006 (O&M) -3- are entitled to withhold the gratuity of the petitioner in view of the pendency of criminal proceedings in terms of Rule 2.2 (b) of the Rules. It is common case of the parties that criminal proceedings were initiated against the petitioner, while he was in service. From the nature of offences mentioned in FIR for which the petitioner has been charged, it is evident that the offences are unrelated to the service of the petitioner. Neither there is any claim of causing loss to the Govt. nor there is any case for service misconduct against the petitioner. Even the suspension was on account of registeration of the criminal case. The petitioner stands reinstated; There was no adverse order against the petitioner till the date of his retirement. Rule 2.2 (b) reads as under:- “2.2)(b) The Government further reserves to themselves the right to withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and right of ordering the recovery from the pension of the whole or part of any pecuniary loss caused to Government. If in a departmental or judicial proceedings, the petitioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon reemployment after retirement.” A reading thereof clearly indicates that the disciplinary authority, consequent upon the result of the departmental or judicial proceedings, should record a finding whether the delinquent has committed grave misconduct or negligence during the period of his service including the service rendered upon reemployment after retirement.” From the bare reading of above provision, it appears that the Govt. has power to withheld or withdraw pension or order of recovery from the Govt. employee only if, departmental proceedings or criminal proceedings are pending in respect to grave misconduct or negligence and where there is an apprehension of loss caused to the Govt. as a consequence of such misconduct or negligence. In the present case there is no such CWP No. 20529 of 2006 (O&M) -4- circumstance nor there is any allegation of causing loss to the Govt. Mere pendency of the criminal proceedings is not sufficient to withhold the retiral benefits of the petitioner in any manner particularly when the judicial proceedings are unrelated to the service misconduct of the petitioner. A similar question of withholding of the retiral benefits came to be considered by a Division Bench of this Court in case of Manohar Singh Vs. Punjab State Electricity Board and others reported as 2006 (2) SCT 103. While considering the mandate of Rule 2.2 (b) it was observed that the right to withhold pension can only be exercised, if, in a departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the service. Since the criminal proceedings are totally unrelated to the service misconduct, the respondents are not entitled to invoke provisions of Rule 2.2. (b) of Rules for withholding the pension and other retiral benefits of the petitioner. A similar view has been expressed by this Court in case of Atam Bodh Sharma Vs. State of Haryana & others reported as 2006(4) SCT 768. As a matter of fact the criminal proceedings in the present case are of such a nature that no action is warranted against the petitioner relating to his employment after his retirement. Such criminal proceedings could only be a ground for initiating action against the Govt. employee, if, he is convicted for the criminal offence during service. Assuming for the sake of an argument that the petitioner is convicted after his retirement for an offence not related to his service misconduct, there is no provision in the rules which may entitle the Govt. to initiate post retiral action against the retired Govt. employee for his conviction for an offence unrelated to the service misconduct. CWP No. 20529 of 2006 (O&M) -5- In view of the above circumstances, the impugned order (Annexure P-1) is hereby quashed. The petitioner is entitled to 100% pension including commutation and release of all retiral benefits including gratuity. Since from the reply, it appears that most of the retiral benefits have been paid, the respondents are directed to release all balance retiral benefits of the petitioner, within a period of three months from the date of receipt of a certified copy of this order. Since the retiral benefits have been delayed on account of totally illegal action of the respondents, the petitioner shall be entitled to interest for delayed payments of G.P.F and Gratuity at the statutory rate and for delayed payments of other retiral benefits @ 6%. (PERMOD KOHLI) JUDGE 25.5.2011. lucky Whether to be reported? Yes.