IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 11646 of 2008 Judgment reserved on: 25.5.2008. Date of decision: 20.6.2011. Dr. Gopal Singh Verma …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. M.S.Guleria, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General, for respondents No. 1 & 2. None for respondent No.3. Kuldip Singh, J. The learned counsel for the petitioner at the time of hearing of the petition has confined the claim of the petitioner in the petition only for leave encashment and gratuity of the petitioner alongwith interest from due date. In these circumstances, it is not necessary to go into other issues raised in the petition. 2. The facts in brief are that petitioner had served in Districts Chamba, Shimla, Kinnaur, Mandi and on attaining the age of superannuation, he retired from government service on 30.9.2003 from Zonal Hospital, Mandi vide notification dated 4/5.4.2002 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Annexure PB. No due certificates were secured by the petitioner from Chief Medical Officers Chamba, Shimla, Kinnaur and Mandi so as to enable the authorities to release his pension and other retiral benefits such as death-cum-retirement gratuity, leave encashment amount of un-availed leave of ten months. The petitioner was sanctioned death-cum-retirement gratuity amounting to Rs.3,50,000/- vide Annexure PI. The petitioner had been drawing his monthly superannuation pension w.e.f. 1.10.2003. He had also drawn the amount of commuted value of pension in accordance with the authorization slip issued by the Senior Accounts Officer vide letter 30.9.2003. 3. The amount of Rs.3,50,000/- death-cum-retirement gratuity sanctioned vide Annexure PI dated 26.9.2003 has been withheld by the respondents without any communication and show cause notice to the petitioner in arbitrary and unjustified manner and in violation of Articles 14 and 16 of Constitution of India. The respondents have also failed to release dues of the petitioner of ten months un-availed leave. The respondents have deprived these amounts to the petitioner wrongly, illegally w.e.f. 1.10.2003. 4. The respondents malafide conspired to deprive the petitioner his retiral benefits and in this context the Chief Medical Officer, Chamba had written a letter dated 26.7.2003 alleging registration of criminal case against petitioner. The petitioner was later on informed that a case under Sections 409, 120-B IPC and Section 13(2) of the Prevention of Corruption Act has been registered …3… against the petitioner vide FIR No. 8/99 dated 8.10.1999 and was pending sanction for prosecution. 5. The gratuity becomes due immediately on retirement, but as per Rule 69 of CCS (Pension) Rules 1972 (for short, the Rules), where disciplinary or judicial proceedings against a government servant are pending on the date of retirement, the gratuity is not payable till the conclusion of such proceedings. On 30.9.2003 when petitioner retired from service, no disciplinary or judicial proceedings were pending against him. FIR No. 8/99 dated 8.10.1999 was registered but no challan had been filed in the court till the retirement of petitioner from service. Rule 68 is not applicable to deprive the petitioner his retiral benefits. 6. The petitioner was promoted on the basis of recommendations of DPC vide order dated 24.5.2003, even though FIR was registered on 8.10.1999. The petitioner was promoted only after vigilance clearance. The learned counsel for the petitioner has stated that petitioner was acquitted by learned Special Judge, Chamba in the criminal case on 30.4.2007 and on 23.3.2011 in Criminal Appeal No. 278 of 2007 this court has upheld the acquittal of the petitioner. 7. The petition has been contested by respondents No. 1 and 2 by filing joint reply in which it has been admitted that petitioner had retired on 30.9.2003 after attaining the age of superannuation. The petitioner was authorized superannuation pension at the rate of Rs.12732/- and retirement gratuity amounting to Rs.3,50,000/- vide …4… letter dated 26.9.2003. Later on, it came to the notice of the department that a criminal case has been registered against the petitioner at Police Station Anti Corruption Zone, Chamba for misappropriation of government money to the tune of Rs.1,08,000/-, while he was functioning as District Family Planning Officer, Chamba. The Inspector General of Police (Vigilance) had informed that the challan had been presented in the court of Special Judge, Chamba on 11.10.2004. The case of the petitioner was examined under Rule 69 (C ) and Rule 4 of CCS (Commutation of Pension)Rules 1981 and it has been decided that petitioner will be granted provisional pension but other retiral benefits after the out come of the criminal case pending adjudication before the learned trial court. Accordingly, respondent No. 3 changed the superannuation pension to provisional pension vide letter dated 4.8.2004 and requested respondent No. 2 to recover the commuted value of pension to the tune of Rs.6,39,148/- from the petitioner vide letter dated 5.7.2004. In these circumstances, the conversion of superannuation pension into provisional pension and withholding of retiral benefits of the petitioner are legal. No due certificate issued by Chief Medical Officer, Chamba was later on withdrawn keeping in view pending criminal proceedings against the petitioner. 8. The respondent No. 3 has filed separate reply. In the reply, it has been stated that impugned order dated 4.8.2004 is perfectly legal, in order and in accordance with rules. In the pension papers of the petitioner, it was not stated that any vigilance case had …5… been pending against him. In these circumstances, pension case of the petitioner was finalized. Later on, Chief Medical Officer, Chamba vide letter dated 9.1.2004 had intimated that in view of vigilance case pending against the petitioner “no demand certificate” was issued due to oversight, which may be treated as withdrawn. The case was taken up vide letter dated 29.3.2004 with respondent No. 2 in detail informing that since a vigilance case was still pending against the petitioner as informed by Chief Medical Officer, Chamba, the petitioner was not entitled to any pensionary benefits such as retirement gratuity etc. till the decision of vigilance case. The petitioner is entitled to only provisional pension and other benefits released to him may be recovered. The department informed that retirement gratuity and leave encashment of the petitioner have not been released. The respondent No. 2 vide letter dated 11.6.2004 had informed that as per decision dated 11.6.2004 of the government, the petitioner was entitled to provisional pension only, since prosecution sanction in a pending vigilance case has already been granted against the petitioner. The retiral benefits will be decided as and when the petitioner will be exonerated from the vigilance case. 9. The respondent No. 3 vide letter dated 4.8.2004 had informed the District Treasury Officer, Mandi for conversion of superannuation pension into provisional pension and it was changed on the recommendations of respondents No. 1 and 2. There is no truth in the allegations that respondent No. 3 at his own converted the superannuation pension into provisional pension in arbitrary manner. …6… 10. I have heard the learned counsel for the parties. Mr. M.S. Guleria, Advocate appearing on behalf of the petitioner has stated that petitioner was superannuated on 30.9.2003 as Senior Medical Superintendent/ Chief Medical Officer. He was sanctioned superannuation pension, commuted pension valuing Rs.6,39,148/- and retirement gratuity Rs.3,50,000/-. On the date of retirement, no departmental proceedings or criminal case was pending against the petitioner. The respondents, later on, wrongly converted the superannuation pension into provisional pension and withheld payment of Rs. 3,50,000/- of gratuity and leave encashment due to the petitioner. It has been submitted that petitioner has been acquitted in the criminal case. The petitioner is entitled to Rs.3,50,000/- on account of retirement gratuity and amount equal to leave encashment of ten months alongwith interest. Mr. Guleria has relied Vijay L. Mehrotra vs. State of U.P. and others 2001 (9) SCC 687. On behalf of the respondents, it has been stated that petitioner was involved in the criminal case, and, therefore, he was not entitled to retiral benefits except provisional pension, which was granted to him. 11. The petitioner was promoted on the recommendations of DPC vide order dated 4.5.2003. It has also come on record that FIR No. 8/1999 was registered on 8.10.1999 and in that case challan was filed against the petitioner in the court of Special Judge, Chamba on 11.10.2004. The Chief Medical Officer, vide letter dated 26.7.2003, informed the petitioner that on scrutiny of record, it was found that a …7… criminal case stood registered against him, which was under investigation with the vigilance department. Therefore, no due certificate given in his favour be treated as withdrawn. The Chief Medical Officer, vide letter dated 9.1.2004, addressed to Secretary (Health) with a copy to Accountant General, H.P. had informed that no due certificate issued in favour of Dr. G.S.Verma, Chief Medical Officer, Mandi (Retired) be treated as withdrawn till clearance from the vigilance department. The respondent No. 3 vide letter dated 29.3.2004 addressed to Director, Health Services, H.P. has stated that in case vigilance case was pending against the officer, then the case was required to be dealt with under Rule 69 and Rule 4 of the Commutation of Pension Rules, 1981, which provide non-payment of gratuity and commuted value of pension, where departmental/ judicial proceedings are pending. The Director, Health Services vide letter dated 26.4.2004 requested the Secretary (Health) to examine the case of the petitioner in the light of the observations of the audit office. The government vide letter dated 5.6.2004 took the decision that petitioner may be granted provisional pension as prosecution sanction had already been given against the petitioner. The other retiral benefits will be decided as and when petitioner is exonerated from the case. 12. The Rule 9 (1) provides for withholding pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of …8… any pecuniary loss caused to the government, if, in any departmental or judicial proceedings, the petitioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement. Sub-rule (4) of Rule 9 further provides that in the case of government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule(2), a provisional pension as provided in rule-69 shall be sanctioned. Clause (b) of sub-rule 6 provides that judicial proceedings shall be deemed to be instituted in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance is made. Rule 69(1) (c ) provides that no gratuity shall be paid to government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. 13. The petitioner retired on 30.9.2003. The challan was submitted in the court in FIR No. 8/1999 on 11.10.2004. In view of Rule 9(6) (b) no judicial proceeding on the basis of FIR No. 8/1999 was pending against the petitioner on the date of his retirement. It is nobody’s case that any departmental proceeding was pending against the petitioner on the date of his retirement on 30.9.2003. In these circumstances, there was no legal bar in releasing the pensionary benefits to the petitioner immediately on his retirement. …9… 14. The government took the decision on 5.6.2004 that petitioner may be granted provisional pension as the prosecution sanction had already been granted against the petitioner. It was decided that other retiral benefits will be decided as and when petitioner will be exonerated from the case. On 5.6.2004 when government took the decision challan in pursuance of FIR No. 8/1999 was not filed. The challan was filed only on 11.10.2004. Thus even on 5.6.2004 there was no justifiable cause for withholding the pensionary benefits of the petitioner on the basis of case arising out of FIR No. 8/1999. The petitioner has been acquitted by the Special Judge, Chamba on 30.4.2007 and in appeal this court on 23.3.2011 has upheld the acquittal of the petitioner. Thus taken from any angle the petitioner is entitled to release of gratuity and leave encashment withheld by the respondents without any justifiable cause. 15. In Vijay L. Mehrotra (supra), it has been held that in case of any employee retiring after having rendered service, it is expected that all the payments of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement. The Supreme Court has allowed simple interest at the rate of 18% with effect from retirement till the date of payment. It is not clear from the facts why retiral benefits were not paid to the retiree in that case, rather the Supreme Court has observed that there were no reasons or justification for not making the payments for months together. In the present case, the respondents had not paid gratuity …10… and leave encashment to the petitioner on account of criminal case as noticed above though it has been found that withholding of dues were wrong. I am of the view that taking into consideration Rule 68, facts and circumstances of the case and the rate of interest in the scheduled banks, it will be sufficient if the petitioner is allowed 9% simple interest per annum on the withheld amount w.e.f. 1.10.2003 till actual payment. 16. In view of above, the petition is allowed. The respondents are directed to pay the retirement gratuity, leave encashment dues, if any, to the petitioner within a period of six weeks from the date of supply of copy of this judgement by the petitioner to the competent authority. The respondents shall also pay simple interest at the rate of 9% per annum on the arrears w.e.f. 1.10.2003 till payment. June 20,2011. ( Kuldip Singh ), (Hem) Judge.