Bal Krishan Joshi vs State of Rajasthan and Others

Sandeep Mehta, J—Heard learned counsel for the parties. Perused the material available on record.

By way of this writ petition, the petitioner seeks a direction to the respondents for releasing his pensionary benefits.

The petitioner retired on 31.12.1997 as a Joint Director (Personnel), Education on attaining age of superannuation. It is alleged that at the time of the petitioner''s superannuation, a criminal case was pending against him and thus he was not granted the benefit of full pension after his retirement and his gratuity amount was also withheld by the respondents. The petitioner represented to the authorities for releasing his terminal dues time and again but the respondents neither responded nor released the retiral dues of the petitioner other than the provisional pension. By now, nearly 17 years have passed but till date, the complete pensionary benefits of the petitioner have not been released upon which he has approached this Court by way of this writ petition assailing the action of the respondents in failing to release his terminal dues without any justification.

Notice of the writ petition was issued to the respondents on 17.12.2014 but till date no reply has been filed. On the previous date Mr. B.L. Bhati, learned G.C. orally informed the Court that the petitioner is arraigned as an accused in the F.I.R. No. 34/1996 registered at P.S. Jaisalmer wherein charge-sheet was filed by the police against one Mr. Sohan Lal for the offences under sections 409, 420, 467, 468 and 471 I.P.C. but the investigation was kept pending against the petitioner u/s. 173(8) Cr.P.C. He thus contends that since a criminal case involving offences of grave moral turpitude is pending investigation against the petitioner, he is not entitled to the terminal benefits other than the provisional pension as per Rule 90 of the Rajasthan Civil Services (Pension) Rules, 1996.

On the previous date of hearing i.e. on 11.9.2015, this Court had directed the Dy. Registrar (Judl.) to seek a report from the Superintendent of Police, Jaisalmer regarding the latest status of the F.I.R. No. 34/1996 registered at P.S. Jaisalmer. A fax letter has been received from the office of Supdt. of Police, Jaisalmer, as per which, after initial investigation charge-sheet dated 30.4.1997 was filed against one Sohanlal but the investigation was kept pending against the former District Education Officers viz. the petitioner Bal Krishan, Yatindernath and Harish Chandra Purohit under Section 173(8) Cr.P.C. Later on, the offences not having found proved against these persons, investigation which was kept pending under Section 173(8) Cr.P.C. was closed and a report was forwarded to the Assistant Public Prosecutor concerned. A closure report dated 27.11.2013 has already been submitted by the A.P.P. concerned in the Court of learned Chief Judicial Magistrate, Jaisalmer.

Mr. Kuldeep Mathur, learned counsel for the petitioner contends that notwithstanding the pendency of investigation in the above mentioned FIR, the action of the respondent authorities in withholding the petitioner''s retiral dues is totally illegal and contrary to the rules. He contends that as per Rule 7(4) read with Rule 90 of the Rules of 1996, the retiral dues can only be withheld if "judicial proceedings" or departmental proceedings are pending against any government servant at the time of his retirement. He contends that the phrase "pendency of judicial proceedings" can only be construed to mean that the proceedings should have been instituted in a Court of law. Mere pendency of investigation cannot be equated with pendency of a judicial proceeding and thus the action of the respondents in failing to release the petitioner''s retiral dues for the last 17 years is grossly illegal and as a matter of fact amounts to victimization. He thus prays that the writ petition deserves to be accepted and the petitioner deserves to be sanctioned all his terminal dues with interest and heavy cost.

Per contra Mr. B.L. Bhati, learned G.C. tried to support the impugned action contending that the writ petition is time barred as no claim for release of any dues can be submitted against the government beyond the period of three years. Thus, he prays that the writ petition is liable to be dismissed on the ground of latches alone. However, he too was not in a position to dispute the fact that retiral benefits of the petitioner were withheld only and only on the ground of pendency of the criminal case referred to above.

Heard and considered the arguments advanced at the bar. Perused the material available on record.

So far as the argument advanced by Mr. Kuldeep Mathur, learned counsel for the petitioner that the judicial proceedings were not pending at the time of the petitioner''s retirement and thus the respondents were not justified in not releasing his terminal dues is concerned, the issue is debatable. The Hon''ble Supreme Court in the case of Bharat Damodar Kale and Another Vs. State of A.P., AIR 2003 SC 4560 : (2003) CriLJ 4543 : (2003) 2 JT 569 Supp : (2003) 8 SCALE 392 : (2003) 8 SCC 559 : (2004) 1 UJ 203 : (2003) AIRSCW 5333 : (2003) 7 Supreme 736 in no unequivocal terms held that criminal proceedings stand initiated with the registration of the F.I.R. In any event the fact remains that as per the report dated 29.9.2015 received from the office of Supdt. of Police, Jaisalmer, the criminal proceedings, if any pending against the petitioner by way of continued investigation under Section 173(8) Cr.P.C. were concluded with the filing of a closure report dated 27.11.2013 in the Court of C.J.M. Jaisalmer. Thereafter there could not have been any justification for withholding the petitioner''s retrial dues.

So far as the question regarding the delay in filing of the writ petition is concerned, the said issue also does not prejudice the petitioner''s right to claim his terminal dues. Right to receive pension is a continuing cause of action. For the delay occasioned in releasing pension and other retrial dues if the payment is delayed beyond the period of two months then the employee becomes entitled to interest on the period of delay. The interest keeps on regenerating. Thus, the right is not extinguished on the expiry of three years as argued by the learned Government Counsel rather the interest continued to be regenerated on the amount thereby keeping the cause of action alive. Therefore, the bogie of limitation cannot be utilized to throw out the petitioner''s claim for terminal dues. Under Rule 89 of the Rules of 1996, if the retiral dues of an employee are delayed beyond 60 days from the date the payment becomes due, then the employee is entitled to receive interest @ 9% p.a. Thus, the petitioner would be entitled to receive interest on the delayed payment of the retiral dues as well.

Accordingly, the writ petition deserves to be and is hereby allowed. The respondent authorities are directed to release the petitioner''s retiral dues forthwith and not later than within a period of four weeks from the date of this order with the applicable interest as per Rule 89 of the Rules of 1996 from the date of accrual till the date of disbursement. In case, the retiral dues are not released within the aforesaid period, the interest shall stand enhanced to 12% p.a.

No order as to costs.