Ghulam Mohudin Lone @APPELLANT@Hash State Of Jammu & Kashmir & Ors

Through the medium of this petition, the petitioner has prayed for the issuance of following relief(s) in his favour:

"(I). One in the nature of the mandamus, commanding the respondents to give same treatment to the applicant as has been given to the similarly situated persons and her counter parts further respondents be directed release all the post-retirement benefits including the Pension, General Provident Fund, Gratuity and leave salary along with all allied benefits, in favour of the applicant, to which the petitioner is entitled after his retirement on 31-08-2016.

(II) One in the nature of Mandamus commanding the respondents to award interests @ 24% on the retained amount of retirement benefits of the petitioner which have been unnecessarily withheld by the respondent from August 2016 till they are actually released and treat petitioner at par with other person of the department reflected in the FIR,

(III) One in the nature of mandamus commanding, the respondents to compensate the petitioner to the tune of rupees ten lacs for their omission and commissions and for the economic and social exploitation of then petitioner and the petitioner be also paid the legal expenses to the tune of rupees thirty thousand.

(IV) One including in the nature of the certiorari, quashing the impugned fictitious FIR lodged with the Police Station Vigilance Organization in form of FIR No.25 of 2014 as illegal, unfair, fictitious and unreliable besides being a misuse of power and authority by the police officers."

The case set up by the petitioner, in his petition, is that he was appointed in the respondent Department way back in the year 1984; i.e. 18 th of August, 1984 to be precise, and was posted in different places during his service carrier. It is stated that the petitioner worked to the best satisfaction of his superiors as is reflected from the entire service record of the petitioner and, accordingly, retired from service after attaining the age of superannuation on 31st of August, 2016. The petitioner has further proceeded to state that the competent authority cleared and verified all the NOCs/ documents produced by the petitioner from the concerned quarters, whereafter the petitioner was issued the requisite retirement certificate by the respondent No.5. It is pleaded that despite fulfilling all the formalities on the part of the petitioner, the respondents did not release the post-retirement benefits in favour of the petitioner when, as stated, there is nothing pending before any Office against the person of the petitioner. The petitioner claims that he filed multiple representations before the respondents for seeking release of his post-retirement benefits, but all his requests/ representations fell in deaf ears, compelling the petitioner to file the instant writ petition for the above stated relief(s).

Objections stand filed on behalf of the respondents, wherein it has been stated that the post-retirement benefits of the petitioner have been withheld because the petitioner is involved in FIR No.25/2014 registered by Police Station, Vigilance Organization, Kashmir for the commission of offences punishable under Section 5(1) (C) (D) read with Section 5(2) J&K Prevention of Corruption Act Svt. 2006 and Section 120-B RPC for abuse of official position and illegally/ fraudulently misappropriating an amount of rupees two lac, forty seven thousand, nine hundred and ninety three during the period 2009-12, which case is pending disposal till date before the competent forum. It is contended that the post-retirement benefits will be released in favour of the petitioner on submission of the 'No Demand Certificate' (NDC) from the Vigilance Organization, Kashmir.

Heard the learned counsel for the parties, perused the documents on record and considered the matter.

The core issue that arises for consideration herein this petition is whether on the basis of pendency of criminal proceedings against a Government employee, the post retiral benefits of such an employee can be withheld.

Article 168-D of the J&K Civil Service Regulations 1956 (hereinafter referred to as the 'CSR') deals with sanction of provisional pension, which reads thus:

"168-D: - Where any departmental or judicial proceeding is instituted under Article 168-A or where departmental proceeding is continued under Clause (A) of proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death cum retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereof.'

From a plain reading of the above Article, what comes to fore is that where any departmental or judicial proceeding is instituted under Article 168-A or where departmental proceeding is continued under Clause (A) of proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional pension, not exceeding the maximum pension which would have been admissible under rules, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereof.

Admittedly, the petitioner is facing trial in case FIR No. 25/2014, which has been instituted before his retirement, therefore, unless the trial is concluded, petitioner is entitled only to provisional pension which the department has already sanctioned. The view taken by the Division Bench, referred to and relied upon by the counsel for the petitioner in case titled 'State of JK & Anr. Vs. Dr. Kulwant Singh & Anr.', reported as '2004 (1) JKJ 351 (HC)', being distinguishable, is not applicable to the facts and circumstances of the case.

This issue stands already considered by this Court while delivering the Judgment in case SWP No. 1771/2016 titled 'Nazir Ahmad Sheikh Vs. State of JK & Ors.', paragraphs 7 to 10 being relevant are taken note of:-

"07. Further, Article 168-D of the J&K Civil Service (Classification, Control and Appeal Rules), 1956, provide as under:

"Where any departmental or judicial proceeding is instituted under Article 168-A or where departmental proceeding is continued under clause (a) of proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereof."

With regard to 'Leave Salary' of a Government employee, who retires from service on attaining the age of retirement, while under suspension and facing disciplinary or criminal proceedings pending against him, Rule 37 (2) (v) of the J&K Civil Service (Leave) Rules, 1979, provides as under:

"The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in view of such authority there is possibility of some money becoming recoverable from him on conclusion of proceedings against him on conclusion of proceedings, he will become eligible to the amount so withheld, after adjustment of Government dues, if any."

On an analysis of the rule position discussed hereinabove, what can be safely concluded is that the respondents are well within their right in withholding the pensionary benefits, including Gratuity, Leave Salary, differential salary for the suspension period, in view of the pendency of the case bearing FIR No.01/1997, registered at Police Station, VOK, against the petitioner before the Court of competent jurisdiction. However, at the same time, the respondents cannot take umbrage under the pendency of the aforesaid case registered against the petitioner, that is more than twenty years to be exact, as the FIR in question has been lodged in the year 1997. The petitioner cannot be kept in a lurch for his entire lifetime on the ground of a case being registered against him and deprived of his rights as may have accrued to him during the course of his service carrier and subsequent retirement. The respondents are duty bound to make every endeavor so as to ensure that the proceedings pending against the petitioner before the Court of competent jurisdiction are taken to their logical conclusion. It is also not discernible as to why the case has remained pending before the trial Court, despite the fact that the challan, in the case, has been laid before the Court on the 8th day of November, 2007, that is more than 10 years ago.

The Hon'ble Supreme Court of the country, in the case of 'State of Jharkhand & Ors. V. Jitendra Kumar Srivastava & Anr.', reported in 'AIR 2013, SC 3383', has held that the pension of a Government employee is in the nature of a property and it cannot be taken away without due process of law. Similarly, in the judgment of law rendered by the Apex Court of the country in the case of 'Deokinandan Prasad v. State of Bihar', reported in '(1971) 2 SCC 330', the right to receive pension has been recognized as a right to property."

In view of the preceding analysis, the petition of the petitioner is found without any merit, as such, same shall stand dismissed, alongwith the connected IA(s). However, the petitioner shall be paid provisional pension and other dues admissible under rules pending decision in the criminal case.