- (1.) The short question which arise for determination in the instant petition is whether the respondents could withhold the payment of retiral benefits of the petitioner on the excuse that criminal proceedings in case FIR No. 40, dated 21.8.2003, under Sections 420/467/471/120-B IPC, registered at Police Station Vigilance Bureau, Rohtak, have been pending. Challenge in this petition filed under Article 226 of the Constitution is for quashing communication dated 15/22.2.2006 (P-7) declining payment of retiral benefits to the petitioner. The communication has been sent to the petitioner in reply to the legal notice served by him through his counsel.
(2.) Brief facts of the case are that the petitioner was appointed on the post of Clerk on 21.8.1969 on ad hoc basis. His services were regularised as such in 1971. By the date of his superannuation, the petitioner had earned promotions and he was working as Superintendent. He was superannuated on 31.3.2005. However, on 18.5.2004 he was suspended when he was working as Superintendent. On 30.8.2004, a charge-sheet was issued to him along with articles of charge and statement of imputation to which the petitioner filed his reply. He denied all the allegations by stating that the Vigilance Department had conducted investigation and had found him innocent. However, still a departmental inquiry was initiated against him and the petitioner continued to remain under suspension till his date of superannuation on 31.3.2005 and his pensionary benefits were withheld. On 14.12.2005, the petitioner through his counsel served a legal notice to the respondents for release of all pensionary benefits including commutation. In reply to the legal notice sent by the petitioner, a communication dated 15/22.2.2006 was received by him stating that on account of pendency of the criminal proceedings, no retiral benefits could be released to him. When the matter came up for consideration on 4.8.2006, the learned State counsel has apprised the Court that the inquiry report had been submitted to the competent authority and it was to take action in accordance with law and a period of four weeks was sought. When the matter came up for consideration today, learned State counsel has placed on record a copy of the order dated 7.10.2006, showing that the disciplinary proceedings initiated against the petitioner stand dropped, which is taken on record as Mark-'A'. However, the only issue survive for determination is whether on the excuse of pendency of criminal proceedings, the pensionary benefits of the petitioner could be withheld.
(3.) Having heard learned counsel for the parties at a considerable length we are of the view that the instant petition deserve to be allowed. The learned State counsel has stated before us that in the criminal proceedings no challan has been presented so far against the petitioner, which would lead to the conclusion that in law no criminal proceedings are pending against him. It is well settled that departmental proceedings or criminal proceedings would be deemed to be instituted when the charges have been framed or challan is submitted to a Criminal Court. According to Rule 2.2(b) of the Punjab Civil Services Rules, Volume-2 Part-1 (as applicable to Haryana), the proceedings which are initiated before the retirement of a pensioner could culminate in the passing of order of recovery from pension of the whole or part of any pecuniary loss caused to Government if such a pensioner is found to be guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service including service rendered on re- employment after retirement. Explanation added to Rule 2.2(b) clarifies as to when departmental proceedings or judicial proceedings could be deemed to be instituted. The aforementioned explanation along with Notes 1 and 2 reads as under :- "Explanation. - For the purpose of this rule - (1) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (2) judicial proceedings shall be deemed to have been instituted - (i) in the case of criminal proceedings, on the date on which the complaint is made or a challan is submitted to a criminal court; and (ii) in the case of civil proceeding, on the date on which the plaint is presented or, as the case may be, an application is made to civil court. Note 1. - 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. Note 2. - In a case in which a pension as such is not withheld or withdrawn, but the amount of any pecuniary loss caused to Government is ordered to be recovered from the pension, the recovery should not ordinarily be made at a rate exceeding one-third of the gross pension originally sanctioned including any amount which may have been commuted.";