IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.17839 of 2009 Date of decision : 28.2.2011 Amarjit … Petitioner Versus The State of Punjab and others …Respondents CWP No.19897 of 2010 Date of decision : 28.2.2011 Amarjit … Petitioner Versus The State of Punjab and others …Respondents CORAM : HON’BLE MRS.JUSTICE PERMOD KOHLI Present: Mr.R.K.Arora, Advocate for the petitioner. Mr.B.S.Chahal, DAG, Punjab. Permod Kohli, J. These petitions are being disposed of by this common order as a common question of law is involved in these petitions. Facts are taken from CWP No.17839 of 2009. The petitioner was working as Inspector Grade-II in the Department of Food & Civil Supplies, Punjab. He retired on 31.5.2009 on attaining the age of superannuation. While in service, he was served a charge- sheet dated 21.6.2000 under Rule 8 of the Punjab Civil Services (Punishment & Appeal), Rules, 1970. On completion of disciplinary proceedings, an amount of Rs.16,93,150/- was ordered to be recovered from him. He has been paid provisional pension @ 40%. It was further directed that if any amount still remains to be recovered at the time of his retirement, the same will be recovered from his pension. This order was challenged before the appellate forum. The Principal Secretary, Food Civil Supplies and Consumer Affairs Department, Punjab (appellate authority) allowed the appeal and remanded the case to the competent/punishing authority to take a decision afresh vide its order dated 27.2.2003. On remand of the case, the disciplinary authority passed the order dated 12.3.2003 (Annexure P-4) whereby a new Inquiry Officer was appointed. Before the matter could be taken up in a fresh inquiry, one CWP No.17839 of 2009 CWP No.19897 of 2010 Raghubir Singh one of the charge-sheeted Officer filed a CWP No.10372 of 2003 before this Court where the proceedings of the fresh inquiry were stayed by this Court. Accordingly, the competent authority stayed the inquiry proceedings with a direction to complete on vacation of the interim order. It seems that the successor of the appellate authority passed an interim order dated 28.2.2007 and dismissed the appeal. Petitioner approached this Court against the aforesaid order in CWP No.2536 of 2008. This petition was taken up along with another writ petition i.e. CWP No.15528 of 2007 filed by one Satish Kumar another charge-sheeted officer. Vide order dated 9.1.2009, this Court set aside the order dated 28.2.2007, and at the same time, liberty was granted to the authority to hold a fresh inquiry. It seems that the competent authority instead of holding fresh inquiry, passed an order dated 12.5.2010. This order came to be challenged by a separate writ petition i.e. CWP No.19897 of 2010. During the pendency of these petitions, respondents-State have withdrawn the order dated 12.5.2010. In view of withdrawal of the order, CWP No.19897 of 2010 has been rendered infructuous. Insofar as the CWP No.17839 of 2009 is concerned, apart from challenging the order of recovery, the petitioner has also claimed his retiral benefits such as GPF, leave encashment, commutation of pension etc. Learned counsel for the petitioner has admitted that 40% provisional pension has been sanctioned in favour of the petitioner. Grievance of the petitioner is that he is entitled to even provisional pension at the rate of 100% pending completion of the disciplinary proceedings. Admittedly, disciplinary proceedings are still pending against the petitioner. In terms of Rule 9.9 of the Punjab Civil Services Rules Vol.2, Part 2, petitioner is entitled to 100% provisional pension. Such rule reads as under:- “9.9 Provisional Pension .- (1) The various stages of action laid down in rule 9.4 shall be strictly followed by the Head of Office. There may be an isolated case where, in spite of following the procedure laid down in rule 9.4, it may not be possible for the Head of Office to forward the pension papers referred to in rule 9.6 to the Accountant-General, Punjab within the period prescribed in sub-rule (4) of that rule, or where the pension papers have been forwarded to the Accountant-General, Punjab has returned them to the Head of Office for eliciting further information before issue of pension payment order and order for the payment of gratuity and if the Head of Office in such a case is of opinion that the Government 2 CWP No.17839 of 2009 CWP No.19897 of 2010 employee is likely to retire before his pension or gratuity or both, can be finally assessed and settled in accordance with the provisions of these rules, he shall without delay, take steps to determine the qualifying years of service and the emoluments qualifying for pension after making the summary investigation carefully for this purpose, he shall, - (i) rely upon such information as may be available in the official records ; and (ii) ask the retiring Government employee to file an affidavit on plain paper stating the total length of qualifying service including details of emoluments drawn during the last ten months of service but excluding the breaks and other non- qualifying periods of service.] (2) The Head of Office shall thereafter determine the qualifying years of service and the emoluments qualifying for pension in accordance with the information available in the official records and the information obtained from the retiring Government employee under sub-rule (1). He shall then, determine the amount of pension and the amount of death-cum-retirement gratuity. (3) After the amount of pension and gratuity have been determined under sub-rule (2), the Head of Office shall take further action as follows :- a) He shall issue a sanction letter addressed to the employee endorsing a copy thereof to the Accountant-General, Punjab authorizing -- (i) hundred per cent pension as determined under sub-rule (2) as provisional pension ; and (ii) hundred per cent of gratuity as determined under sub- rule (2) as provisional gratuity withholding ten per cent of gratuity or one thousand rupees, whichever is less. (b) He shall indicate in the sanction letter the amount recoverable from the gratuity under sub-rule (1) of rule 9.8. After issue of the sanction letter he shall draw -- (i) the amount of provisional pension ; and (ii) the amount of provisional gratuity after deducting there from the amount mentioned in sub-clause (ii) of clause (a) and the dues, if any, mentioned in rule 9.16 in the same manner as pay and allowances of the establishment are drawn by him. (4) The amount of provisional pension and gratuity payable under sub-rule (3) shall, if necessary, be revised on the completion of the detailed scrutiny of the records. (5) (a) The payment of provisional pension shall not be a period of six months from the date of retirement of the Government employee. If the amount final pension and amount of final gratuity have been determined by the Head of Office in consultation with the Accountant-General, Punjab, before the expiry of the said period of six months, the Accountant-General, Punjab, shall issue the pension payment order and order for the payment of gratuity accordingly after adjusting the outstanding Government dues, if any, and provisional payments already made. (b) If the final amount of pension and gratuity have not been determined by the Head of Office in consultation with the Accountant-General, Punjab within the period of six months referred to in clause (a), the Accountant-General, Punjab shall treat the provisional pension and gratuity as final and shall issue pension payment order and order for the payment of gratuity accordingly immediately on expiry of the said period of six months. (c) The payment of the amount withheld from the gratuity shall be authorised after deducting there from the amount, if any, outstanding against the Government employee which may have come to the notice of the Head of Office after the authorization of provisional gratuity. 3 CWP No.17839 of 2009 CWP No.19897 of 2010 (6) (a) If the amount of provisional pension disbursed to a Government employee under sub-rule (3) on its final assessment under sub-rule (4), is found to be in excess of the final pension assessed by the Accountant- General, Punjab, it shall be open to the Accountant-General, Punjab to adjust the excess amount of pension in the gratuity withheld under sub- clause (ii) of clause (a) of sub-rule (3) or recover the excess amount of pension in instalments by making short payments of pension payable in future. (b) If the amount of gratuity so disbursed proves to be larger than the amount finally assessed the retired Government employee shall not be required to refund the excess amount actually disbursed to him. (c) The Head of Office shall ensure that chances of disbursing the amount of gratuity in excess of the amount finally assessed are minimized and officials responsible for the excess payment shall be accountable for the over-payment.” The mandate of the rule is clear and the petitioner is thus entitled to provisional pension at the rate of 100%. The respondents are at liberty to retain only the gratuity and leave encashment. The respondents are hereby directed to release the provisional pension at the rate of 100%, GPF etc. within a period of three months. However, the question of release of gratuity and leave encashment will depend upon the outcome of the inquiry. Petitioner is also entitled to statutory interest on the delayed payment of pensionary benefits as has been ordered to be released, statutory interest wherever is applicable and 6% interest on delayed payments of other retiral benefits. Interest will commence after three months of the retirement of the petitioner. CWP No.19897 of 2010 shall stand disposed of in same terms. A photo copy of this order be placed on the file of connected case. ( Permod Kohli ) Judge 28.02.2011 sd 4