Faquir Chand Vs. State of Haryana and ors. - Court Judgment

Excerpt:
- ranjit singh, j.1. can the pensionary benefits be withheld on account of pendency of criminal proceedings is the short issue that arises in the present writ petitions.2. this issue could have easily been resolved by making reference to haryana civil services rules, volume ii, part i (for short, 'the rules'), still it has come before the court, which will not speak well off the state functionaries. the present petitions are avoidable litigation and could have easily been avoided if the respondents had done their duty or atleast had applied their mind to the position that has been settled by more than one judgment delivered by this court. since it is again disputed by the state, it may require another decision.3. civil writ petition no. 3177 of 2009 (faquir chand v. state of haryana and ors.) and 4032 of 2009 (banwari lal v. state of haryana and ors.) are being disposed of together as common legal issue arises in both these petitions. petition in civil writ petition no. 3177 of 2009 was appointed with haryana roadways on 25.8.1971. he was implicated in criminal case fir no. 85 dated 6.4.2005 and has, therefore, been challaned for an offence under section 306 ipc. upon being arrested, the petitioner remained under suspension from september 9, 2005 to october 9, 2005. after release, he was made to join his duties. subsequently, a criminal complaint was also filed by the complainant in which the petitioner was not named. the petitioner has also moved a petition for quashing of the case registered against him, which is pending. on account of this, the petitioner even could not join his promoted post as inspector. ultimately, the petitioner retired from service on 30.6.2008. his gratuity, encashment of earned leave, computation of pension and pension have not been released. he has only been allowed a provisional pension. the petitioner served a legal notice, urging that his pensionary benefits can not be withheld merely on the ground of pendency of criminal case and ultimately has filed this writ petition.4. there is not much dispute on the basic facts as can be seen from the reply filed. the respondents would only point out that the petitioner is accused of an offence under section 302 ipc. to justify the non grant of pension, it is stated that the petitioner was not relieved as he had made a request for his adjustment at yamuna nagar. pendency of criminal case is advanced as a reason not to promote the petitioner ultimately. like the petitioner, the respondents have also referred to rule 2.2 of punjab civil service rules, part ii, to justify their action of withholding the pension and pensionary benefits. relying upon some explanation under the rules, which is reproduced in the reply, the counsel for the respondents would contend that no gratuity or death-cum-gratuity is to be paid until the conclusion of the proceedings and final order thereon.5. the petitioner in civil writ petition no. 4032 of 2009 had joined the government service as sahayak patwari and has retired on superannuation on 31.7.2006. the petitioner was implicated for an offence under section 7/13 of the prevention of corruption act. he, however, was acquitted of this charge on 27.2.2007. the state has filed a criminal appeal against this order, which is pending before this court. his pensionary benefits were not released, though no judicial or other proceedings are pending against him as on date. the petitioner made a representation to the deputy commissioner, karnal. principal secretary, haryana government, revenue department, has issued a letter on 21.10.2008 directing the deputy commissioner to release the retiral benefits of the petitioner but still no action was taken. the petitioner has only been paid his provident fund whereas other retiral benefits have not been paid. he has accordingly filed this writ petition.6. here also, there is not much dispute in regard to the factual position and the respondents have justified their action of withholding the pensionary benefits on the ground of pendency of criminal case and it is stated that the decision for payment of pension and gratuity shall be taken after the final decision in the criminal case. it is, however, stated that the petitioner has also been served a charge sheet under section 7 of the haryana punishment and appeal rules but the competent authority has taken a decision to pend the matter till final decision of the court in criminal case. accordingly, it is stated that the petitioner is not entitled to the release of his pensionary benefits.7. mr. anil kshetarpal, learned counsel for the petitioner has based his arguments primarily on the bare provisions of the rule. rule 2.2 of the rules provides that future good conduct is the implied condition for grant of pension and the competent authority has a right to withhold or withdraw pension if the person is convicted of a serious crime or being guilty of great misconduct. the provisions of rule 2.2 are as under:rule 2.2(a) future good conduct is an implied condition of every grant of a pension. the appointing authority reserves to itself the right of withholding or withdrawing a pension or any part of it if the pensioner be convicted of serious crime or be guilty of grave misconduct.the decision of the appointing authority on any question or withholding or withdrawing the whole or any part of pension under this rule shall be final and conclusive.note 1: a claim against the government employee may: become known and the question of making recovery may arise:(a) when the calculation of pension is being made and before the pension is actually sanctioned; or (b) after the pension has been sanctioned.the claim and the recovery may be one or other of the following categories:(1) recovery as a punitive measure in order to make good loss caused to government as a result of negligence or fraud on the part of the person concerned while he was in service.(2) recovery of other government dues such as over issues of pay, allowances or leave salary, or admitted and obvious dues such as house-rent, postal life insurance premia, outstanding motor car, house building, travelling allowance or other advances.(3) recovery of non-government dues.1. in cases falling under (a) above, none of the recoveries mentioned in (1) to (3) above may be effected by a reduction of the pension about to be sanctioned except in the following circumstances:(i) when an officer's service can be held to have been not thoroughly satisfactory, a reduction in the amount may be made under rule 6,4(b) of this volume by a competent authority although no direct penal recovery from pension is permissible.(ii) when the pensioner by request made or consent given has agreed that the recovery may be made. if such request is not made or consent is not given by the pensioner, even sums admittedly due to government such as house-rent, outstanding advances, etc. may not be recovered from pension. in such cases, however, the executive authorities concerned would have to consider whether they should not try to effect the recovery otherwise than from pension, for example, by going to a court of law, if necessary.(b) the government2. in cases falling under (b) above, none of the recoveries described in clauses (1) to (3), may be effected by the deduction from the pension already sanctioned except at the request or with the express consent of the pensioner. under rule 2.2(a), of this volume, future good conduct is an implied condition of every grant of a pension and a pension can be withheld or withdrawn in whole or in part if the pensioner is convicted of serious crime or is guilty of grave misconduct. this, however, refers only to crime or misconduct occurring after the pensioner has retired from service, and the rule would not, therefore, cover a reduction of pension made for the purpose of retrieving loss caused to government as a result of negligence or fraud on the part of the pensioner occurring before he had retired from service.in cases where the pensioner does not agree to recovery being made even of sums admittedly due to government, the concluding remarks made under l(ii) above, will also be applicable.heads of offices should see that the last pay or leave salary prior to retirement shall not be paid until it is clear that a retiring government employee has no outstanding dues to government. sometimes, it may not be practicable to ascertain in time all the outstanding dues, while sometimes due may exceed the amount of last pay or leave salary. in such cases, it is the duty of the heads of offices (in consultation with treasury officers and accountant general, haryana, all the outstanding amounts by a separate communication, starting in detail the nature of recovery and why it has not been possible to effect it from last pay or leave salary. the outstanding amounts should also be clearly and completely noted in the last pay certificates in sufficient detail with reference to the previous correspondence with the accountant general, haryana, and if the recovery is to be effected from pension, it should be clearly recorded on the last pay certificate itself that the request or express consent of the pensioner in writing to the recovery from his pension has been obtained.note 2: although compassionate allowance is of the nature of an ex-gratia payment, it is really a form of pension and, therefore, recoveries from it, once it is sanctioned, should be governed by the above orders. direct recovery of government dues from compassionate allowance is not permissible, under these orders, but recovery may be made indirectly (before the allowance is sanctioned) by reducing the allowance either permanently or as a temporary measure.note 3- strictly speaking under the orders no recovery of amount is permissible from pension but if final recovery has been made, it need not be refunded to the pensioner concerned.(b) the government further reserves to themselves the right of withholding a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government, if the pensioner is found in departmental or judicial proceedings, to have been guilty of grave misconduct or to have caused pecuniary loss to government by misconduct or negligence, during his service including service rendered on re-employment after retirement.provided that:(1) such departmental proceedings if instituted while the officer was in service, whether before his retirement or during his re-employment shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service;(2) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during his re-employment,-(i) shall not be instituted save with the sanction of the government;(ii) shall be in respect of any event which took place more than four years before the institution of such proceedings; and(iii) shall be conducted by such authority and in such place or places as the government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made;(3) such judicial proceedings, if not instituted while the officer was on duty either before his retirement or during his re-employment, shall be instituted in respect of an event as is mentioned in clause (ii) of proviso (2); and(4) the public service commission should be consulted before final orders are passed.explanation.- for the purpose of this rule-(1) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the office has been placed under suspension from an earlier date, on such date; and(2) judicial proceedings shall be deemed to have been instituted.(i) in the case of criminal proceedings, on the date on which the complaint is made or a challan is submitted to a criminal court; and(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to civil court.note 1: as soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the accountant-general.note 2: in a case in which a pension as such is not withheld or withdrawn, but the amount of any pecuniary loss caused to government is ordered to be recovered from the pension, the recovery should not ordinarily be made at a rate exceeding one-third of the gross pension originally sanctioned including any amount which may have been commuted.8. the learned counsel would term the action of the respondents in withholding his pension to be wholly illegal as pension or pensionary benefits can only be withheld or discontinued upon conviction of a serious crime as is given in rule 2.2 of the rules reproduced above. in support of his submission, the counsel has referred to manohar singh v. punjab state electricity board and ors. 2006(2) sct 103. the division bench of this court while interpreting somewhat similar provision made by electricity board, has viewed that action to withhold gratuity etc. can only be invoked where de-partmental or judicial proceedings are initiated under clause (b) of rule 2.2 or are continued under clause (1) of proviso thereto. rule 2.2 of the rules applicable to electricity board makes the right to withhold pension dependent on finding of guilt of a grave misconduct or negligence during the service. while interpreting this rule, the court observed that the bare perusal of the rule would show that it can be invoked if in a departmental or judicial proceedings, the pensioner is found guilty of great misconduct or negligence during the service. the court further opined that the respondents could not invoke rule 2.2 (b) on the ground that criminal case is still pending against the petitioner. the court held that sine-qua-non for invoking rule 2.2 (b) is that the petitioner has been found guilty in a departmental or judicial proceedings which had continued after the superannuation of the employee. while so holding, the court relied upon another decision of this court in high court of punjab and haryana v. amrit singh 1995(2) sct 613 wherein it was observed as under:4. rule 2(2) of the pension rules, clause (b) clearly mentions thus: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 departmental or judicial proceedings, the petitioner is found guilty of grave misconduct or negligence daring 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 (he period of his service including the service rendered upon reemployment after retirement.9. reference is also made to the ratio of law laid down in this regard in the case of atom bodh sharma v. state of haryana and ors. 2006 (4) sct 760, where a similar view was taken and judgment in the case of manohar singh (supra) was noticed with approval. reference made by mr. rathi to a full bench decision in the case of dr. ishar singh, ex.principal, punjab govt. dental college & hospital, amritsar v. state of punjab, through the secretary to government, department of health & family affairs, chandigarh and ors. : (1999-3) 123 punjab law reporter 499, does not directly deal with the issue involved in the present writ petition and as such, would not be applicable to the facts of the present case.10. in civil writ petition no. 3177 of 2009, no departmental proceedings are being held against the petitioner. he is only facing criminal prosecution. it is possible to view that the proceedings under rule 2.2 (b) of the rules can only be initiated on conclusion of criminal trial and if the petitioner is found guilty of the charge preferred against him under section 306 ipc. the provisions contained in other clauses can not be read in isolation and as already held by this court, the continuation of the criminal case can not deprive the petitioner of the benefit of death-cum-retirement gratuity. in civil writ petition no. 4032 of 2009, apparently there is no justification to either withhold pension or pensionary benefits, once the petitioner therein has been acquitted of the charge preferred against him under the prevention of corruption act. the finding of guilty is a sine-qua-non for invoking the provisions of the rules to withhold or discontinue pension or pensionary benefits. merely because the state has filed on appeal against the order of acquittal would not mean that this acquittal can be taken as a conviction to withhold or withdraw the pensionary benefits. concededly, the departmental proceedings initiated against the petitioners have been held in abeyance to await the decision in the criminal case. that would also, therefore, not give any justification to the respondents not to release the pensionary benefits to the petitioners.11. the writ petitions are, therefore, allowed. directions are issued to the respondents to release the entire retiral benefits of the petitioners. let the needful be done within a period of three months from the date of receipt of certified copy of this order. there shall be no order as to costs.