- (1.) The petitioner joined the service with the respondents as Lecturer in Electrical Engineering and was posted at Government Polytechnic, Sirsa on September 2, 1965. He was regularised on the same post and was posted on 4.9.1966 at J.R. Polytechnic, Hoshiarpur. He was promoted as Head of the Department of Electrical Engineering and was posted at Government Polytechnic Guru Teg Bahadur, Faridkot in October 1980. In the year 1981, he was promoted as Principal in the same institution. The last posting which was held by the petitioner before his superannuation was as Principal in Government Polytechnic College for Women, Ludhiana, in January 1995. The petitioner superannuated upon attaining the age of 58 years on 28.2.1999. The petitioner was appointed as Member of a Sub Committee comprising of Shri J.M. Malhotra, Shri D.C. Sharma and the petitioner. The scope of the Sub Committee was to submit a list of lowest tenderers for supplying some machinery in pursuant to the tenders which had been invited by the Directorate. It is stated that the matter relating to the said functioning of the said Committee was investigated by the Vigilance Bureau, Punjab and F.I.R. No. 22 dated March 22, 1996 came to be registered under Section 13(1)(d) of the Prevention of Corruption Act, 1988 and under Sections 420 and 120-B IPC at Police Station Vigilance Bureau, Patiala. The petitioner was placed under suspension vide order dated 4.4.1996 on account of the registration of the above mentioned FIR. However, the said orders were revoked by the Governor of Punjab vide order dated 17.7.1996. As a sequel thereto, the petitioner assumed the charge of the post of Principal at Ludhiana and remained posted as such till attaining the age of superannuation on February 28, 1999. It may be noticed here that while issuing notification, the Governor of Punjab observed that pensionary benefits shall not be given to the petitioner till the clearance/No Objection Certificate is granted by the Vigilance Department. The petitioner made various representations seeking release of his retiral benefits and in pursuant to his efforts, the authorities sanctioned 90% of the General Provident Fund (GPF) amount to the petitioner vide order dated March 4, 1999 and the remaining 10% GPF was sanctioned by the said authority on March 5, 1999. Thus, the payment of Rs. 2,03,566/- was made on 7.6.1999 and that of Rs. 20,370/- on 29.9.1999. Thereafter, the authorities sanctioned provisional pension to the petitioner under rule 9.14(1)(d) of the Punjab Civil Services, Vol. 11 Rules vide order dated 13.9.1999 and the payment was actually released to the petitioner on 22.11.1999. Similarly, the amount of GIS (Group Insurance Scheme) amounting to Rs. 32,368/- was also released on 31.12.1999. The petitioner was not satisfied as the complete retiral benefits had not been released in favour of the petitioner, as such the petitioner submitted representations dated September 23, 1999 and October 20, 1999 respectively whereby it had been specifically stated that a period of three and half years had passed from the date of registration of the FIR but no challan had been filed by the authority concerned in the Court. The petitioner claimed that the amounts which are due and payable to the petitioner under the two heads i.e. leave encashment for ten months and death-cum-retirement gratuity (DCRG) and further claimed commutation of pension as in that regard, the requisite papers had been filed with the Government. Despite the representation nothing was heard from the Government. Thus aggrieved of this inaction on the part of the Government, the present petition has been filed by the petitioner. Rule had been issued vide order dated 24.4.2000 and the matter was ordered to be listed before the appropriate Bench for directions on July 27, 2000.
(2.) Government filed written statement and has taken the plea that the payments due and payable in respect of leave encashment, DCRG and commutation of pension could not be permitted as the case stood registered against the petitioner and others and the same is still pending. As per the provisions of law contained in the Punjab Civil Service Rules and the notification issued by the Government, the same could not be released as the judicial proceedings are pending and would be released on the finalisation of the said proceedings. So far as the case of Shri J.M. Malhotra, similarly situated member of Sub Committee is concerned, he had retired on November 30, 1994 whereas the FIR had been registered on 22.3.1996 as such the said case cannot be considered at par with the case of the petitioner. Thus, the petition merits dismissal on this ground.
(3.) Learned counsel for the petitioner argued that the plea of the government is devoid of any merit because the leaved encashment and gratuity payable can only be withheld if the departmental proceedings or the judicial proceedings are pending aforesaid the officer concerned at the time of his retirement but that is not the case of the petitioner. The petitioner had retired on February 28, 1999 and till that even challan had not been put in Court though the FIR had been registered on March 22, 1994. In any case, no case would be registerable after the expiry of four years from the date of the incident as envisaged under the rules. Learned counsel made reference to clause (b) of Rule 2.2 and proviso (3) of Clause (b) to rule 2.2 which read as under :- Rule 2.2: Recovery of Pensions :- (a) xxx xx xx (b) The Government further reserve to themselves the right of with holding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss accused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave mis-conduct or negligence during the period of his service, including service rendered upon re-employment after retirement, - provided that - (1)Such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, he deemed to be proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service: (2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Government: (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service. (3) 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 institution; and The Public Service Commission should be consulted before final orders are passed. Explanation :- For the purpose of this rule - (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date: and (b) 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; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court. Note:- As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant-General. The amount of the pension withheld under clause (b) should not ordinarily exceed one-third of pension originally sanctioned, including any amount of pension to be withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. (c) xxx xx (2) xxx xx ". Learned counsel has also drawn my attention to Clause (c) to sub-rule (1) and sub rule (2) of Rule 9.14 of the Rules which read as under:- "9.14. Provisional pension where departmental or judicial proceedings may be pending :- (1)(a) xxx xx (b) xxx xx (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. 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." The argument is that the right would ensue to the Government to withhold the retiral benefits only if the departmental or judicial proceedings are pending on the retiree on the date of retirement. Admittedly, no proceedings were pending on the date of retirement of the petitioner. In support of his argument, the learned counsel relied upon the dicta of this Court expressed in L.R.Dhawan v.State of Haryana and others, 1996(3) Service Cases Today 11.;