Dr. Chhabilendra Roul, Member (Ad.)

1. The present OA has been filed by the applicant against the order dated 06.05.2019 passed by the respondent No.3, rejecting the claim of the applicant for release/payment of his retirement benefits.

2. Brief facts of the case are that the present applicant was initially appointed as a Junior Engineer in Central Public Works Department (CPWD). While he was in service, an FIR U/s 120-B/420/468/471 IPC & 13 (2) read with section 13(1) (d) of the PC Act 1988 and Section 9-B Explosive Act was lodged against the applicant and four other persons on 25.3.1998. A memorandum under Rule 14 of the CCS(CCA) Rules 1964 was issued against the applicant on 03.08.2000. The applicant was placed under suspension by the Competent Authority on 09.04.2001. The suspension order was revoked by the Competent Authority on 30.12.2005. The Disciplinary Authority, vide order dated 29.01.2010 imposed the penalty of reduction of pay by one stage in the time scale of pay for period of one year without cumulative effect. The applicant appealed against the said order of the Disciplinary Authority and the Appellate Authority vide order dated 20.08. 2010 revised the punishment to censure.

2.1. The Special Judge, CBI Karkardoma Court vide judgment dated 15.02.2018 dropped the proceedings against the applicant and others due to lack of sanction. The CBI has filed criminal revision petition on 25.09.2018 against the said order dated 15.02.2018. The Revision Petition is still pending and there is no stay against the order dated 15.02.2018.

2.2. The applicant retired from service on 31.10.2018 on attaining the age of superannuation. At the time of his retirement the respondents withheld the payment of retirement benefits including regular pension, DCRG as well as leave encashment. Only provisional pension under Rule 69 of CCS (Pension) Rules, 1972 was granted to the applicant vide order dated 01.11.2018. The applicant submitted a representation on 01.02.2019 as well on 16.04.2019 to the respondents to release his retirement benefits. Vide order dated 06.05.2019, the respondents informed the applicant that they have withheld Regular Pension, Gratuity and Leave Encashment, etc due to want of Vigilance Clearance in view of the pending criminal case against him.

2.3. Being aggrieved the applicant has filed the present OA, seeking the following relief(s):-

(a). Directing the respondents to place the relevant records pertaining to the present OA before the Hon'ble Tribunal for the proper adjudication in the matter.

(b). Issue direction to the respondents to release all the retrial benefits i.e. regular pension, gratuity and encashment of leave etc. along with all other consequential benefits with interest on arrears etc. and costs, declaring the impugned order dated 6.5.2019, biased, perverse, illegal, unjust, arbitrary, unconstitutional malafide, against the principles of natural justice, violative of articles 13, 16 & 21 of the constitution of India and in violation of the mandatory provisions of law.

(c) Any other fit & proper relief may also be granted to the applicant.

3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

4. The counsel for the applicant relied on the grounds taken by the applicant in his OA. The main ground is that at the time of the retirement there was no criminal case or disciplinary case pending against the applicant. The sole disciplinary case was concluded in the year 2010 and he was censured. The criminal case proceedings were dropped by the order dated 15.2.2018 by the Special Judge CBI and there is no stay against this order when the CBI filed Revision Petition on 25.09.2018. In view of this, the criminal proceedings attained finality and there is no disciplinary or criminal case pending against the applicant. Accordingly, the respondents are bound to release the retirement benefits to him.

4.1. The learned counsel for the applicant also pressed for payment of interest on delayed payment of the retirement dues. In support of his contention, he cited the judgment of the Apex court in Union of India vs. K V Jasnaki Raman, 1991 (4) SCC 109 [LQ/SC/1991/421] and S. K Dua vs. Union India And Ors. 2008( 3) SLJ in which it was held that interest on retirement benefits can be claimed for delayed payment of such dues.

4.2. The learned counsel for the applicant further averred that leave encashment is like private property and it is protected under Article 300A of the Constitution Of India. The respondents could not have withheld the payment of leave encashment without following due process of law even if there is any provision to hold back its payment. He cited the judgment dated 06.01.2017 of the Rajasthan High Court at Jodhpur in Chula Ram Heerani vs. Sate Of RajAsthan And Ors. in WPC No. 3509/2014 wherein a reference was made to State of Rajasthan vs. Jogendra Singh (Para 12 said judgment) in the Jogendra Singh (supra) case, the Hon'ble high court held that :

"In our view, simply because the appeal against the order of acquittal is pending before the appellate court, the respondent cannot be deprived for the retrial benefits."

Further, in the said judgment it was held :-

15. A look at the provisions under Section 90 (1) (c) would show that the release of gratuity depends upon conclusion of a departmental or judicial proceedings. Thus, if a person has been acquitted in judicial proceedings or exonerated in departmental proceedings, the gratuity shall be released.

16 The question however remain as to whether judicial proceedings can be said to be pending if a criminal revision has been filed in the high court against the order of discharge Under Rule 7 of the Rajasthan Pension Rules, 1966 explanation thereto, it has been provided that the judicial proceedings shall be said to be instituted when a chargesheet is filed by the investigating agency before the competent court. As per Cr.P.C., 1973 the criminal case is said to be concluded at two stages. A- whether a person should be entitled to be treated as having been acquitted if he is either discharged or he is acquitted after conducting of trial. The discharge is provided under Section 227 of Cr.P.C. which reads as under:-

(7 of 8) [CW-3509/2014]

227. Discharge _ If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

17. Thus, the judicial proceedings stand concluded immediately when a person has been discharged. It is a well settled law that criminal revision filed before the High Court cannot be said to be a continuation of criminal trial or criminal proceedings against an individual within the meaning of Rule 7 of the Pension Rules of 1966, and, therefore, the embargo contained under Rule 90 (1)

(c) would be no more applicable once a person has been discharged of the criminal offence. Thus, merely because of pendency of criminal revision or for that matter any appeal against an discharge or acquittal as the case may be, a person cannot be denied regular service benefits.

4.3. The learned counsel for the applicant further cited the judgement dated 14.03.2018 of Hon'ble Andhra High Court in B. V Venkateswar Rao vs. State of Telengana in WPC no. 15812 of 2017 wherein it was held that:-

20. Insofar as the criminal cases are concerned, the Department has got a right to file an appeal. But, it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquits the accused, it must amount to be the conclusion of the judicial proceedings in the first instance. Therefore, the appeals filed against the acquittal orders cannot be treated as continuation of criminal proceedings.

21. If the appeal is not in continuation of original criminal proceedings, the order of acquittal is a final order within the ambit of Rule 52 of the Pension Rules, referred to above. After the orders of acquittal passed by the criminal court, as already stated above, there is no power for the Government to withhold pension or retirement benefits. The said benefits, therefore, are liable to be paid immediately after acquittal order.

4.4. The learned counsel for the applicant further cited the order dated 8th March 2018 in OA no. 180/00043/ 2017 by the Ernakulum Bench of CAT, wherein it was held :-

In State of West Bengal and others v. Sankar Ghosh (AIR) 2014 SC 405 [LQ/SC/2013/1321] the contours of honourable acquittal have been examined and the conclusion arrived is that the acquittal in a criminal case would not amount to a bar on awarding departmental punishment. Other judicial orders in this context which follow on the same lines is Deputy Inspector General of Police and another v. S.Samuthiram (2013) 1 SCC 598, [LQ/SC/2012/1056] Commissioner of Police, New Delhi and another v. Meher Singh (2013) 7 SCC 685 [LQ/SC/2013/672] . The applicant also produced a copy of an O.M issued on 19th January 2017 as Annexure A-10 which contemplates opening of sealed cover for promotion in the case of a Government servant who has been acquitted but against whose acquittal an appeal is pending. As can be seen, all these cases relate to departmental proceedings/promotion of individuals after acquittal in criminal proceedings and are not helpful in adjudicating this case.

14. I have considered the contentions of both sides to this dispute and the central issue involved which has been narrated above. A few citations have been brought before me from both sides. But I see that the citation which is directly relevant is Balak Singh Thakur (supra). This order clearly set out that pendency of an appeal or a criminal revision against acquittal cannot be regarded as a continuance of trial and cannot be treated as pendency of judicial proceedings. Countering this, is the argument that the applicant has not been the beneficiary of honourable acquittal and has merely been given the benefit of doubt. There is no departmental proceeding which has been. 10. initiated or pending against the applicant and while a criminal appeal is pending before the Hon'ble High Court, the covered decisions cited above clearly lay down that this cannot be construed as an extension of the judicial proceedings. A very similar view has been taken by this Tribunal in O.A.No.180/246/2017 at Annexure A-11.

4.5. Relying on the above three judgments /orders, the learned counsel for the applicant averred that in the instant case, the trial court has dropped the criminal proceedings vide order dated 15.2.2018 and there is no stay in the Revision Appeal by CBI. Hence, the ratio of the three judgments/orders are applicable in the instant case and the applicant is entitled for release/payment of his retirement dues and leave encashment along with interest as claimed citing the judgments of the Apex Court.

5. The learned counsel for the respondents vehemently opposed the contention of the counsel for the applicant. He drew attention of this Tribunal to Rule 69 of the CCS Pension Rules, 1972 which clearly states that:

"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. It is further stated that "no gratuity shall be paid to the Government Servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon."

5.1. The learned counsel for the respondents stated that a criminal proceeding that is revision appeal is pending in the High Court. Hence, the criminal proceedings have not been concluded as yet. Under such circumstances, as per the provision under rule 69 of CCS Pension Rules, 1972 and Rule 39(3) of the CCS (Leave ) Rules, 1972, the applicant is not entitled for any further retirement benefits apart from the provisional pension granted to him.

6. I have perused the records of the case thoroughly and heard the arguments carefully. I agree with the contention of the learned counsel for the applicant that ratio of the Judgment of Jodhpur Bench of the Hon'ble Rajasthan High Court in Chula Ram Heerani (supra), and judgment of Hon'ble Andhra High Court in B. V Venkateswar Rao (supra) is fairly applicable in the instant case. As the Trail Court has dropped the proceedings and the Hon'ble High Court has not stayed the judgment of the Trail Court, it cannot be said that the criminal proceedings are pending in the real sense. The litigation regarding the case (revision petition) and subsequent scope for appeal in the Apex Court, if any, (Leave) Rules, 1972 states:-

"(3)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 the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him on conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any."

Even if there is a criminal case pending, when there is no scope for recovery of any money or loss to Govt exchequer, the leave encashment should not be withheld. If there is statutory provision, then the applicant deserves to be given an opportunity of being heard before such withholding of encashment of leave encashment takes place. There are several judgments by the Apex court, according to which, leave encashment is like private property of the retried government servant. It is deferred payment of salary for the days the Government Employee has foregone his entitled leave to work for the Government. The provision of Article 300A is attracted in such cases and the respondents should have adopted due procedure of his leave encashment dues.

6.1. When it comes to payment of gratuity, it is different matter. Payment of gratuity is a payment for the good conduct and performance of the Government Servant while in service. It cannot be claimed as matter of right. However, in the instant case, the Trail Court has dropped the criminal proceedings against the applicant. There is no stay in the criminal revision petition filed by CBI. In respect of the earlier departmental proceedings, the applicant has been punished with censure. Under such circumstances, it enjoins upon the respondents to have a relook regarding withholding the payment of gratuity to the applicant.

6.2. In view of the aforesaid discussions, the following are ordered:-

a) The respondents are directed to pay the leave encashment dues to the applicant forthwith. They are further directed to pay interest at applicable GPF rates from the date of retirement till the date of such payment. matter regarding withholding gratuity to the applicant in view of the judgments cited by the counsel for the applicant and the observations by this Tribunal.

c) There is no order as to costs. All pending MAs are also disposed of accordingly.