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Judgment
Briefly stated, the applicant was working as Sub Inspector in Delhi Police and retired from Delhi Police on 31.12.2016. The son-in- law of the applicant (Subhash) committed suicide on 20.10.2016. FIR No. 666/2010 was registered under Section 306/34 IPC at Police Station, Saket in which the name of the applicant has not been mentioned as an accused.
The applicant submits that he requested for release of his pensionary benefits post retirement and also sought information under RTI Act, 2005 regarding the status of FIR No. 666/2016. He has been informed that the investigation of the case is still on and the charge sheet is yet to be filed before the competent Court of Law.
The applicant avers that retiral benefits cannot be withheld in the absence of any judicial proceedings. As per Rule 9(6)(b) of CCS (Pension) Rules, 1972, the judicial proceedings shall be deemed to be instituted only in the following circumstances:-
"In 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."
No such report, after completion of investigation, has been filed by the Police and the Magistrate is yet to take cognizance of the same, hence the gratuity and commutation of pension cannot be withheld by the respondents.
The applicant has placed reliance on the decision of Hon'ble High Court of Delhi in the case Union of India Vs. J.P. Sharma, 2008(10)AD(Delhi)145, wherein while interpreting Rule 9(6)(b) it has been held that criminal proceedings cannot culminate into judicial proceedings, if no charge sheet has been filed before the Court. Since his representations did not yield any result, aggrieved, the applicant has filed the current O.A. seeking the following relief:-
"Set aside the impugned order at Annexure A-1 and direct the respondents to release the remaining pensionary benefits of the applicant with arrears including gratuity and commutation of pension with interest till date."
In their counter affidavit, the respondents submit that the present application is misconceived and based on misleading facts. At the time of retirement, the applicant's case for pension was processed and a report regarding pendency of departmental enquiry/preliminary enquiry/criminal case etc. was asked from All Districts/Units of Delhi Police. As per the reports received, nothing adverse was found against him. Hence, his pension case was prepared and sent to Pay & Account Office-IV, Tis Hazari, Delhi for finalization of his pension case by the competent authority. PAO finalized his pension case and issued an authority in his favour for payment of DCRG amounting to Rs.8,24,670/- and commuted value of his pension amounting to Rs. 9,63,615/-. However, in the meantime, information was received regarding involvement of the applicant in a criminal case. Therefore, his DCRG and commutations were not cleared by the PAO concerned.
Due to the pending criminal case, the applicant was granted provisional pension from the date of his retirement. Rule-69 of CCS (Pension) Rules, 1972 provides for Provisional Pension where departmental or judicial proceedings are pending. It stipulates that:-
"(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, 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.
(b) The provisional pension shall be authorized by the Accounts Officer 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 servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon :
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant 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."
Accordingly, provisional pension has been sanctioned to the applicant as provided in Rule-69 from the date of his retirement. The details of the amount paid to him are as under:-
1.
Saving Fund
Rs.50,787 vide Bill No. 3582 dated
23.12.2016 and cash on 12.01.2017.
2.
Leave Salary
Rs.4,99,800 vide Bill No. 4330 dated
14.03.2017 and cash on 24.03.2017.
3.
G.P.F.
Rs.16,08,643 vide Bill No. 3525 dated
22.12.2016 and cash on 29.12.2016.
4.
Bonus-2015-16
Rs.5,181
vide
bill
No. 2703
dated
10.10.2017 and cash on 6.11.2017.
5.
Ration Money
Rs.1,494
vide
Bill
No.1387
dated
17.07.2017 and cash on 17.08.2017.
I have carefully gone through the record and considered rival submissions made by both sides at the time of oral hearing.
The case of the respondents is that one person had hung himself from the ceiling fan with the help of a plastic rope, and the suicide note recovered from the pocket of the deceased, (Sh. Subhash S/o Sh. Rattan Singh), who was a Constable in Delhi Police alleged harassment by his in-laws. On the basis of the suicide notice, FIR No. 666/16 dated 20.10.2016 was registered at Police Station, Saket. It was subsequently revealed that the alleged person mentioned in the suicide note is the applicant in OA (Raj Kumar), who was serving as Sub Inspector (Executive) at that point of time.
The respondents have withheld the pension and other retiral benefits of the applicant on the ground of this ongoing investigation. In their counter affidavit, the respondents have placed reliance on Rule-9(6)(b) of the CCS (Pension) Rules, which states that "Judicial proceedings shall be deemed to be instituted (i) 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".
The applicant has relied upon the judgment of the Hon'ble High Court of Delhi in the case of J.P. Sharma (supra). While interpreting Rule-9(6)(b)(i), the Hon'ble High Court of Delhi has held that:-
"20. Admittedly, neither the charge sheet/challan/report nor the complaint was filed by the CBI before the magistrate even till the time when the matter was pending with the Tribunal against the respondent. Consequently, in our view it could not be said that judicial proceedings were instituted against the respondent in the light of Rule 9(6)(b)(i) of the Pension Rules. The upshot of our aforesaid conclusion is that it could not be said that judicial proceedings were instituted against the respondent for the purpose of Rule 9(4) of the Pension Rules. As aforesaid, there was no question of any departmental proceedings either being pending or being in contemplation at any stage in the present case. Rule 69(1)(a) begins with the words "In respect of a government servant referred to in sub-rule(4) of Rule 9, the Accounts Officer shall authorise the provisional pension equal to........". Since the respondent cannot be said to be a government servant to whom sub-rule(4) of Rule 9 applies, the necessary consequence that flows is that Rule 69(1)(a) is also not applicable to the case of the respondent. Consequently, the respondent could not be subjected to the grant of only a provisional pension as per Rule 69 of the Pension Rules."
It is not disputed that the applicant has not been named in the FIR and that no departmental or judicial proceedings are pending against the applicant. It is also a matter of record that when the matter was referred for legal opinion, the Govt. of NCT of Delhi asked the respondents to expedite the investigation process in the FIR and file charge sheet in concerned Court and take action as per DoP&T Guidelines, instead of giving any legal opinion with regard to Rule-9(6)(b)(i) of CCS (Pension) Rules, 1972.
The applicant's claim that his remaining pensionary benefits with arrears including gratuity and commutation of pension should be given to him seems fair. Judicial proceedings have yet to be instituted against the applicant, and no departmental proceedings are either pending or contemplated (yet) in the present case. The logical corollary, which would follow is that the applicant should/would be entitled to payment of commutation of pension and gratuity as per law. Needless to mention that should the need arise, Rule-9(1) can still be invoked, as held by their Lordships in the case of J.P. Sharma (supra). In Para-27 of the judgment it has been held that:-
"27. Having said that we may, however, clarify that the right of the President under Rule 9(1) is not in any way fettered by the mere fact that the government servant is released his gratuity and pension, since it is always open to the President to withdraw the pension in full or in part and to order recovery from the pension or gratuity of whole or any part of the pecuniary loss caused to the government, as may be established in the departmental or judicial proceedings. With these observations, we dismiss this petition leaving the parties to bear their respective costs."
In view of the same, the O.A. is allowed and the respondents are directed to release the remaining pensionary benefits to the applicant along with gratuity and commutation of pension. I am, however, not inclined to grant any interest on the same in view of the peculiar circumstances of the case. No costs.