Surendra Kumar Vyas vs State of Rajasthan

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner has approached this Court praying for the following relief:--

"(i) to make payment of full pay and allowances to the petitioner during the period of his suspension between 10.10.1995 to 20.7.2009, (ii) to release retiral benefits including pension to the petitioner, (iii) to make payment of the arrears with interest @ 9% per annum, (iv) to expunge the annotation in the orders Annexures 4 and 5 to the effect that departmental enquiry is pending against the petitioner." 2. Facts in brief are that the petitioner was serving as a U.D.C. in the Medical and Health Department of the Government of Rajasthan and was posted at Chittorgarh District at the relevant point of time. He was placed under suspension by order dated 10.10.1995 on account of registration of a criminal case against him under the provisions of Prevention of Corruption Act and various offences under the Indian Penal Code. After undergoing trial, the petitioner was acquitted by the trial court by judgment dated 6.6.2009. Pursuant to his acquittal, the petitioner was reinstated in service by order dated 9.7.2009 and simultaneously, the suspension order issued against the petitioner was also revoked. He rejoined duty under the Block Chief Medical and Health Officer, Begun Dist. Chittorgarh whereafter he was transferred to Rajsamand by order dated 22.7.2009. By that time, the petitioner''s superannuation age was approaching, and thus an order Annexure-4 came to be passed on 31.7.2009 to the effect that the petitioner would be superannuated from Government service on completing 60 years'' age on 30.9.2009. A note was appended below the said order depicting that a departmental enquiry was pending against the petitioner. Ultimately on 30.9.2009 another order Annexure-5 was issued whereby the petitioner was retired from service on completing 60 years of age reiterating that a disciplinary proceeding was pending against the petitioner. It is asserted in the instant writ petition that the pursuant to the petitioner''s acquittal in the criminal case, the respondents are not entitled to withhold any of the service and monetary benefits accruing to him because such benefits are incidental to service and have to be extended to a Government employee as of right upon his superannuation. He referred to the order Annexure-8 dated 26.10.2007, as per which, the departmental enquiry initiated against the petitioner was closed and dropped when the matter was taken over by the Anti Corruption Bureau, Chittorgarh. The above order clearly indicates that thereafter, no departmental proceeding whatsoever remained in currency against the petitioner. The petitioner submitted numerous representations to the departmental authorities to inform him of the departmental proceedings, if any, still pending against him. The said communications were not responded to. The petitioner also gave a legal notice Annexure-11 to the authority demanding to be intimated of details of the alleged disciplinary proceedings pending against him and if not, then to make the payment of his due service and retiral benefits but the same did not yield the desired result. Hence, the petitioner has approached this Court by way of the instant writ petition assailing the action of the respondents in unjustly withholding his service and retiral benefits and for expunging the note appended at the bottom of the orders Annexure 4 and 5 that departmental proceedings are pending against the petitioner.

Reply has been filed to the writ petition on behalf of the respondents wherein it is averred that the department has taken a decision to file an appeal against the petitioner''s acquittal in the criminal case and till such appeal against acquittal is decided, the suspension period of the petitioner cannot be regularized and the retiral benefits are also required to be governed by and subjected to the decision of the said appeal against acquittal. A reference has been made in the reply to Rule 90 of the Rajasthan Civil Services Pension Rules, 1996 and Rule 4 of the Rajasthan Civil Services (Commutation of Pension) Rules, 1996 in order to defend the action of the authorities in withholding the whole of the pension of the employee and in refusing to count the period of suspension as regular service.

However, it is relevant to mention here that in the reply, the specific assertion made by the petitioner in the writ petition that no departmental inquiry is pending against him is not controverted.

Heard and considered the arguments advanced at the bar. Perused the material available on record. As per the admitted facts, it is evident that the only reason which the respondents have set up for defending their action in withholding the service and retiral benefits of the employee is the so called pendency of the state appeal against the employee''s acquittal in the criminal case. The benefits have not been withheld on account of the pendency of any disciplinary inquiry. An identical controversy was examined by the Hon''ble Division Bench of this Court in the case of State of Rajasthan and Ors. v. Jogendra Singh reported in 2005(4) RDD-716(Raj.). The Division Bench ruled that retiral benefits of an employee cannot be withheld simply because an appeal against the order of acquittal is pending.

Rule 90 of the Rajasthan Civil Services Pension Rules on which the respondents have heavily relied upon in the reply is not of much help to them. The rule reads as below:--

"90. Provisional pension where departmental or judicial proceedings may be pending (1)

(a) In respect of a Government servant referred to in Sub-rule (4) of Rule 7, the Director, Pension Department, Rajasthan, 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 servant, 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. Provided that in cases where pension case could not be prepared finally for one or the other reason the appointing authority shall sanction provisional pension in Form 33 after following procedure laid down in sub-rule (3) of Rule 86 and send the case to the Director, Pension for issue of Provisional Pension Payment Order till the Departmental Enquiry is finalised.

(b) The provisional pension shall be authorised by the Director, Pension Department, during the period commencing from the date of retirement upto 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 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for imposing any of the penalties specified in clauses (i) and (ii) of Rule 14 of the said Rules, the payment of gratuity shall be authorised 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."

As per Rule 90(1)(c) of the Pension Rules, gratuity accruing to the Government servant can be withheld till the departmental or judicial proceedings are concluded and the issuance of final orders thereon. It is evident from the reply that no departmental proceeding whatsoever is pending against the petitioner. Just below Rule 90, reference has been made to a Government decision under Rule 7 of the Rules. The said Government decision has a material bearing on the controversy involved in the instant writ petition and is reproduced herein below for the sake of convenience:--

"GOVERNMENT OF RAJASTHAN''S DECISION Grant of cent per cent provisional pension under Rule 90 mandatory even if departmental or judicial proceedings are continued See Government of Rajasthan''s Decision 5 below Rule 7." 8. As per the said decision, the Government has directed that 100 per cent pension which is otherwise admissible to the Government employees as in the cases of normal retirement should be authorized as provisional pension even if departmental or judicial proceedings are continued against the employee. Therefore, even as per the Pension Rules, 100 per cent of the pension is admissible to the Government employee in such circumstances albeit in the name of provisional pension. As per Rule 86 of the Pension Rules after the amount of the pension and gratuity admissible to a retiring Government servant has been determined and any dues remain to be recovered from the Government servant then too, as per Rule 86(4)(a)(ii), 75% of the gratuity has to be released to the public servant. The relevant part of the Rule 86 reads as under:--

"86. Provisional Pension

Xxxx

(4) After the amount of pension and gratuity have been determined under Sub-rule (3), the Head of Office shall take further action as follows :--

(a) He shall issue a sanction in form 33 addressed to the Director, Pension Department, Rajasthan, authorising--

(i) 100% (percent) of pension as determined under Sub-rule (3) as provisional pension which shall remain valid till the pension case is finalised by the Director, Pension Department.

(ii) 75 percent of the gratuity as provisional gratuity as determined under Sub-rule (3) if no amount of House Building Advance has been set apart for recovery out of Retirement/Death gratuity at the time of grant of HBA, otherwise not exceeding 20 percent of the gratuity as provisional gratuity."

Pension of a Government servant is subject to future good conduct and under Rule 6(1)(b) of the Pension Rules, 1996 the appointing authority may order to withhold or withdraw the pension or a part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. However, the said rule also does not account for gratuity. As per the Scheme of the Pension Rules, 1996 only certain dues from the gratuity amount towards government accommodation and other similar dues can be adjusted from the gratuity falling due to the pensioner but the gratuity cannot be totally denied in any case whatsoever. Thus, withholding the gratuity of a Government servant by resorting to sub-rule (1)(c) of Rule 90 of the Pension Rules, 1996 till the decision of the appeal against acquittal is absolutely uncalled for.

As per the ratio of the above referred decision of the Hon''ble Division Bench, the retiral benefits accruing to a Government servant cannot be withheld merely on count of the pendency of an appeal against his acquittal.

Rule 7 of the Pension Rules also has a material bearing on the controversy involved in the case at hand. As per the said rule, the right to withhold the pension or a part thereof whether permanently or for specific period and to order recovery from pension of the whole or part of any pecuniary loss caused to the Government whether in the departmental or judicial proceedings from the pensionary benefits of a retired Government servant is reserved exclusively upon the Hon''ble Governor. Admittedly, no proceedings under the said Rule have been initiated against the petitioner till date. As per Rule 7 Sub-rule (2)(b)(ii) of the Pension Rules, a proceeding to effect such recovery cannot be initiated in respect of any event which took place more than 4 years before the institution thereof. Admittedly, the petitioner retired from service in the year 2009. A period of more than six years has elapsed since the petitioner''s retirement and thus by now the said period of 4 years has gone by and resultantly, no action under Rule 7 of the Pension Rules can now be initiated against the petitioner. Furthermore, the judicial proceedings by way of the criminal trial also stands concluded upon the petitioner''s acquittal.

Rule 54 of the Pension Rules, 1996 deals with the Government''s power to make a specific order regarding pay and allowances to be paid to the Government servant during the period of his suspension. Admittedly no such order was passed in the present case. As neither any departmental proceeding under Rule 7 of the Pension Rules, 1996 has been instituted against the petitioner till date nor a specific order to withhold the pay and allowances was passed regarding his suspension period under Rule 54, the authorities are estopped from withholding the petitioner''s service or retiral benefits for any other reason whatsoever.

Thus, in view of the Division Bench judgment referred to above and Rules 7 and 54 of the Pension Rules, the petitioner is entitled to all the service benefits treating him to be in regular service right from the date of his suspension till his reinstatement and all the retiral benefits pursuant to his superannuation.

The writ petition thus deserves acceptance and the respondent authorities are hereby directed to release all the monetary dues accruing to the petitioner treating him to be in regular service from the date of his suspension till the date of his reinstatement. All the retiral benefits accruing to the petitioner upon his superannuation shall also be paid to him. The dues of service benefits which accrued to the petitioner till the date of his superannuation shall carry interest @ 6% per annum from the date of accrual till the date of actual payment. The retiral benefits accruing to the petitioner shall be paid with interest @ 9% as per Rule 89 of the Pension Rules, 1996.

The writ petition is allowed in the above terms. No order as to costs.