Hira Lal Ohri vs The State of Punjab and Others

Jawahar Lal Gupta, J.—The petitioner, who retired as a Superintendent from the Department of Industries on August 31,1987, prays for the issue of a writ in the nature of Mandamus directing the respondents to release his pension and gratuity with interest. The respondents contest the petitioner''s claim primarily on the ground that criminal proceedings arising out of an F.I.R. 559 of 1980 under Sections 420, 467, 468, 471 read with Section 120-B of the Indian Penal Code are pending against him in the Court of Judicial Magistrate 1st Class, Chandigarh.

So far as the claim for the release of pension is concerned, Mr. D.S. Dhillon, learned counsel for the respondents, states that in view of the decision of the Full Bench of this Court in Dr. Ishar Singh v. State of Punjab 1994(3) R.S.J. 543 and in view of the provisions of the rules, the petitioner is, in fact, being paid full pension provisionally. Accordingly, this part of the relief as claimed by the petitioner is rendered infructuous. However, so far as the release of gratuity is concerned, it is contended that in view of the provisions of Rule 9.14(c), the petitioner is not entitled to the relief prayed for by him.

Mr. Kohli, learned counsel for the petitioner, has contended that proceedings initiated against the petitioner in pursuance to FIR No. 559 of 1980 are merely criminal proceedings pending before the Judicial Magistrate 1st Class and do not fall within the ambit of ''judicial proceedings'' as contemplated under Rule 9.14(c). The counsel submits that the action of the department in with-holding gratuity is not in accordance with the provisions of the Rules. It has been further submitted by the counsel that the petitioner has had a consistently good record of service. He had joined the department as a mere Ahlmad on October 6, 1949 and had been promoted to the rank of Superintendent Grade-I prior to his retirement on August 31, 1987. Since the petitioner was granted periodic promotions and was even allowed to cross the efficiency bar, the action of the respondents in with-holding the petitioner''s gratuity is wholly arbitrary and unfair. The claim made on behalf of the petitioner has been controverted by the learned counsel for the respondents.

The questions that arise for consideration are (i) Are criminal proceedings not judicial proceedings ?(ii) Is the petitioner entitled to the release of gratuity in spite of the pendency of the proceedings against him?

Rule 9.14 of the Punjab Civil Services Rules, Volume II, as amended by the Punjab Civil Services Volume II (4th Amendment) Rules, 1984, which was published in the Punjab Govt. Gazette dated January 4,1985 provides as under:-

"9.14 - Provisional pension where departmental or judicial proceedings may be pending:-

(1)(a) In respect of Government employee referred to in clause (c) of Rule 2.2., the Head of office shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government employee or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension.

(b) The provisional pension shall be authorised by the Accountant General, Punjab during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

(c) No gratuity shall be paid to the Government employee until the conclusion of the departmental or judicial proceedings and issue of final order thereon:

Provided that where departmental proceedings have been instituted under rule 10 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of rule 5 of the said rules, the payment of gratuity shall be authorised to be paid to the Government employee.

(2) Payment of provisional pension made under Sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government employee upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."

A perusal of the above provision shows that so far as pension is concerned, the employee is entitled to be paid the amount "equal to the maximum" provisionally on the basis of the qualifying service rendered by him. However, in respect of gratuity, an exception has been made in clause (c). It has been provided (except in a case covered by the proviso) that the payment shall not be made "until the conclusion of the departmental or judicial proceedings and issue of final order thereon." The purpose is obvious. An employee may be charged for dereliction of duty resulting in loss to the State. He may commit a criminal act like an offence of cheating/forgery. Departmental and/or criminal proceedings may be initiated against him. It may be established that the State had suffered loss on account of misconduct of the employee. In such a situation, it would be open to the State to recover the amount of loss from the gratuity which was payable to the employee.

Mr. Kohli submits that proceedings before a Criminal Court are not judicial proceedings. In the Rules contained in Chapter 2, there is an explanation to Rule 2.2(b) which inter-alia provides that "a judicial proceeding shall be deemed to be instituted - (i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made; ...." Though the explanation appears to have been added to the rule with the purpose of fixing the time when the judicial proceedings shall be deemed to be initiated, yet it gives an indication lo the effect that even the criminal proceedings are considered to be judicial proceedings. Furthermore, in the absence of a definition of judicial proceedings under the Rules, one has to revert to the general principles. Any proceedings where a judicial officer is required to determine the rights or liabilities of parties after appreciation of evidence and by recording a judgment, are considered to be judicial proceedings. Similarly, when a judicial officer has been conferred with the powers lo try and punish or acquit an accused person, the proceedings are judicial. Further more, keeping in view the context of the provision it does not appear to be possible to say that criminal proceedings are not included in the expression "judicial proceedings." It is true that every judicial proceedings may not entitle the Government to withhold the payment of gratuity. To illustrate, if divorce proceedings have been initiated against the employee, it may not per se provide any adequate ground to the Government to withhold the payment of retiral dues. However, when an employee is being tried by a Criminal Court for an offence of cheating or forgery and it may ultimately lead to his conviction, the employer is entitled to await the decision of the trial and find out as to whether or not the employee had caused a loss which deserves to be reimbursed to the State Exchequer by adjustment from the amount of gratuity.

Mr. Kohli had placed reliance on various decisions in support of his submission that judicial proceedings do not include criminal proceedings. He has referred to the decision of their Lordships of the Supreme Court in State of Punjab Vs. Kailash Nath, . Herein, their Lordships were considering the provision of Rule 2.2. of the Punjab Civil Service Rules which inter-alia provide that "no such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institutions." The Court after considering the provision held that the Government will not be entitled to exercise its right under Rule 2.2.(b) which provided for withholding or withdrawing a pension in a case where "a government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose on an event which took place more than four years before such institution." However, no such issue arises in the present case reference has also been made to the decision of a Division Bench of the Andhra Pradesh High Court in M. Venkata Krishnan Fuo v. The Divisional Panchayat Officer Gudiyada andAnr. 1980(3) S.L.R. 756 and a few other decisions. None of these cases relates to the interpretation of-the provisions contained in Rule 9.14(c). These have no application to the facts of the case. In fact, so far as the payment of gratuity is concerned, a Full Bench of this Court in Dr. Ishar Singh v. Stale of Punjab and Anr. 1994(3) SLR 543. has clearly held that"....other retiral benefits like gratuity can be withheld in anticipation of some amount found to be due to the Slate or in anticipation of likelihood of imposing; of a cut in pension or withholding or withdrawal of pension." In any event, the question whether the criminal proceedings are judicial proceedings or not did not arise for consideration in any of the cases cited by the counsel. Consequently, a detailed reference thereto is not necessary. Neither in principle nor on precedent can it be said that the criminal proceedings are not judicial proceedings. Consequently, the first question is answered in negative. It is held that the judicial proceedings contemplated under rule 9.14 include the criminal proceedings of the nature initiated against the petitioner. It may however, be clarified that if after the trial, the petitioner is acquitted and he is found entitled to the release of full gratuity, he shall be compensated by payment of the amount along with interest (a) 12% per annum.

As for the second contention, it deserves mention that the record of service of an officer is not relevant for the purpose of determining his entitlement to the gratuity when criminal proceedings are pending against him. It is true that during the pendency of the proceedings, the petitioner was not only allowed to cross the efficiency bar, but was even promoted and confirmed a Superintendent. This does not, however, ipso facto entitle the petitioner to claim the release of his gratuity. The rule contains a specific bar. The action of the respondent is in strict conformity with the rule. I find no infirmity in the action taken by the respondents. The second question is, thus, answered accordingly.

Mr. Kohli has then urged that the gratuity could not have been withheld without giving a notice to the petitioner. The contention has no merit. It is the admitted position that criminal proceedings are pending against the petitioner. The Rule 9.14 (c) contains a specific mandate to the Government that it shall not release the gratuity until the conclusion of the judicial proceedings and the issue of a final order thereon. In this situation, it is clear that the Authority was bound to with-hold the amount of gratuity. No notice was required to be issued to the petitioner either under the rule or in accordance with the principles of natural justice.

Lastly, it has been submitted that the proceedings have been unduly delayed. The grievance appears to be genuine. The F.I.R. was lodged in the year 1980. On September 23, 1992, the Motion Bench had issued a direction to the Judicial Magistrate 1st Class, Chandigarh "to expedite the hearing of the case pending against the petitioner and ensure a final decision, preferably within a period of four months. Mr. Kohli states that in spite of these directions, the case has not been decided by the Court. No one has appeared on behalf of the Chandigarh Administration, which has been impleaded as Respondent No. 4 to explain as to why it is so. Mr. Dhillon has pointed out that only five witnesses have been examined so far and that a number of witnesses remain to be examined. This discloses a sad state-of affairs. Respondent No. 4 should ensure that the evidence is produced as expeditiously as possible. It is directed that the trial of the case shall be concluded within six months from the date a copy of this order is supplied by the petitioner to the Court.

No other point has been urged.

Subject to the direction that the trial shall be completed as aforesaid, I find no merit in the petitioner''s claim for the release of gratuity. The writ petition in this respect is dismissed. However, in the circumstances of the case, there will be no order as to costs.