Shiv Nath v. State of Punjab and Ors

JAGMOHAN BANSAL, J. (Oral)

1.

The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking direction to respondents to release gratuity alongwith interest in view of order dated 29.07.2016 (Annexure P-7) passed by this Court.

2.

The petitioner joined as Constable with respondent-Department on 04.10.1977. He was time to time promoted and w.e.f.

01.04.2010 promoted to the post of Sub Inspector.

3.

An FIR No.02 dated 03.04.2013, under Sections 302, 201, 363, 366-A, 120-B, 217 and 218 of Indian Penal Code (for short 'IPC') came to be registered against the petitioner. The Trial Court vide judgment dated 17.05.2014 (Annexure P-1) held the petitioner guilty and awarded him sentence of two and half years under Sections 217 and 218 of IPC. The petitioner preferred appeal No. CRA-S-2517-SB-2017 before this Court. The sentence of the petitioner has been suspended vide order CWP-10217-2017     2    2024:PHHC:010534 dated  29.05.2014,  however,  the  appeal  is  still  pending.  The  petitioner preferred CWP No. 18512 of 2014 before this Court seeking release of his retiral benefits. The said petition came to be disposed of vide order dated 29.07.2016 (Annexure P-7) with a direction to respondents to pass necessary orders within 3 months. The said direction was based upon reading of Rule 2.2 (b) of Punjab Civil Service Rules (Volume-II). The relevant extracts of the order dated 29.07.2016 read as: "The perusal of 2.2 (b) makes it clear that in case of pensioner,  the  departmental  proceedings  have  to  be initiated  apparently  to  determine  whether  the misconduct is 'grave' or whether the crime of which he  has  been  convicted,  is  'serious'.  It  follows  that without  holding departmental proceedings, no order under Rule 2.2 (b) could be passed. The perusal of the impugned order shows that no such departmental proceedings were conducted. Admittedly, after the conviction of the petitioner under Section 217 and  218  IPC,  the  pension  file  was  moved  and  it remained  pending.  The  opinion  of  the  District Attorney  Legal  was  also  sought  and  ultimately  the matter was decided on 17.03.2015 i.e. only after the retirement of the petitioner. At that time, the petitioner had already been retired from service on 31.01.2015 and  as  such  the  impugned  order  dated  17.03.2015 (Annexure P- 8) being contrary to the provisions of Rule 2.2 (b) is hereby set aside. Consequently, the respondents are at liberty to follow the provisions of Rule 2.2 (b), if they so desire. If they decide to proceed under the provision of Rule 2.2 (b), then  provisional  pension  as  per  Government  Rules shall  be  released  to  the  petitioner  alongwith  other service  benefits  and  if  they  decide  not  to  proceed under 2.2 (b) then of course, the entire pension and Asgar Ali CWP-10217-2017 3 2024:PHHC:010534 other pensionary benefits will have to be released. The  #tate  of  'un2ab  is  directed  to  pass  necessary orders as observed above  within three months  from the date of receipt of certified copy of this order.3

¶4Learned counsel for the petitioner submits that in view of judgment dated 29.07.2016 (Annexure P-7) passed by this Court in CWP No. 18512 of 2014, the respondents are bound to release gratuity despite his conviction. The respondent has not initiated departmental proceedings against the petitioner, thus, mere pendency of appeal before this Court cannot create embargo to release gratuity.

¶5Per contra, learned State counsel submits that petitioner is wrongly placing reliance upon Clause (b) of Rule 2.2 because case of petitioner is covered by Clause (c) of Rule 2.2 as well as Rule 9.14 (c) of Punjab Civil Service Rules, Volume II. Appeal of the petitioner is pending before this Court, thus, he cannot be released gratuity in view of aforesaid Rules. In support of his contention, learned State counsel relies upon judgment of Hon'ble Supreme Court in 'The Secretary, Local Self Government Department & Ors. Etc. Vs. K. Chandran Etc. 2022 (12) SCC 104 as well as full Bench judgment of this Court in 'Punjab State Civil Supplies Corporation Limited and others Vs. Pyare Lal' 2012 SCC OnLine P&H 21595.

¶6I have heard the arguments of both sides and with the able assistance of learned counsels have perused the record.

¶7The conceded position emerging from the record is that the petitioner has been convicted vide judgment dated 17.05.2014 (Annexure P-1) passed by the Trial Court. The petitioner has been awarded sentence CWP-10217-2017

of two and half years alongwith fine under Sections 217 and 218 of IPC. The petitioner has preferred appeal before this Court which is still pending. The petitioner in view of judgment dated 29.07.2016 (Annexure P-7) of this Court has already been released all retiral benefits except gratuity. The respondent has withheld gratuity in view of Clause (c) of Rule 2.2 as well as Rule 9.14 (c) of Punjab Civil Service Rules (Volume - II).

8.

To adjudicate the issue, it would be apposite to notice Rule

2.2 (c) as well as Rule 9.14 (c) Punjab Civil Services Rules (Volume-II) which are reproduced as below: Rule 2.2 (c)-

(1) Where any departmental or judicial proceeding is instituted under clause (b) of rule 2.2 or where a departmental proceeding is continued under clause (i) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under suspension on the date of retirement up to date immediately proceeding to the date on which he was placed under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and of final orders thereon. Rule 9.14 -Provisional pension where departmental or judicial proceedings may be pending-

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(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

¶9From the perusal of above quoted rules, it is quite evident that in case of pendency of departmental or judicial proceedings gratuity or death cum retirement gratuity cannot be released till the conclusion of the proceedings. The petitioner has been convicted and he has been awarded sentence. Appeal of the petitioner is still pending before this Court.

¶10A Full Bench of this Court in 'Dr. Ishar Singh Vs. State of Punjab and another' 1993 SCC OnLine P&H 49 had occasion to advert with question of release of retiral benefits including gratuity. The Court in para 81 has laid down following principles: 4i)  The  1overnment  has  no  right  to  withhold  or postpone  pension  or  the  payment  on  account  of commutation of pension. The #tate is bound to release $++ per cent pension at the time of superannuation, may be provisionally.

(ii) The 1overnment can withhold the gratuity or other retiral benefits e.cept pension or postpone payment of the same during pendency of an entiuiry.

(iii)  'ension  cannot  be  adversely  affected  before  a finding of guilt is returned.

(iv) The 1overnment can initiate departmental entiuiry after long lapse before retirement, rather there is no limitation for initiating the departmental entiuiry from the date of incident before retirement. The delay and the e.planation for the same may reasonably be taken note  of  keeping  in  view  its  likelihood  to  cause pre2udice to the delintiuent if the entiuiry is challenged in appropriate proceedings.

(v) The entiuiry proceedings cannot be 0uashed solely Asgar Ali CWP-10217-2017 6 2024:PHHC:010534 on the ground of long pendency.

(vi)  There  is  no  effect  of  superannuation  on  the pendency of the entiuiry proceedings.

(vii)  The  recovery  of  the  1overnment  dues  can  be made from gratuity or other retiral benefits only.3 Hon'ble Supreme Court while adverting with similar question in K. Chandran (supra) has held that appeal is continuation of trial and in case an employee has been convicted and appeal is pending, he cannot be released gratuity death cum retirement gratuity. The relevant extracts of the judgment read as: "On the conviction in a criminal case for violation of integrity norms in performance of official duties and an appeal pending before the High Court, is the employee still entitled to the release of his death-cum-retirement gratuity (for short "DCRG") is the moot point arising for consideration in the present appeals. We are, in fact, examining a Full Bench judgment of the Kerala High Court which resolved the conflict of view of the Division Benches and ruled in favour of the employees. The controversy having been set down, the Government of Kerala, which is naturally aggrieved by the decision of the Full Bench is before us on the aforesaid issue.

¶2In the main appeal before us, the question of law is the same but the facts differ in the two cases of the two employees.

3.(A) K. Chandran, the respondent in the appeal was working as Village Extension Officer, Noolaphuza. In the course of his employment the Vigilance Department registered a crime under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1998 (hereinafter referred to as "the PC Act") alleging that he had received Rs 500 as CWP-10217-2017

bribe from one K.K. Mohanan. Mr Chandran was suspended from service on 27-10-2006 and was reinstated in service on 1-3-2008. He retired from service on 31-3-2011 on superannuation while working as the General Extension Officer in Wayanad.

¶4The Inquiry Commissioner and Special Judge, Kozhikode convicted K. Chandran vide judgment dated 29-7-2011 in CC No. 13 of 2008 and sentenced him to undergo rigorous imprisonment (for short "RI") for 2 years and a fine of Rs 5000. Aggrieved by the same, K. Chandran filed an appeal before the High Court of Kerala, which was registered as Crl. A. No. 6053 of 2013. The appeal was admitted and the sentence was suspended in the meantime.

¶5K.Chandran submitted a request before the Accountant General to release his DCRG in 2014. On not receiving a favourable response, he filed an application numbered OA (EKM) No. 104 of 2014 before the Kerala Administrative Tribunal (for short "KAT"), which dismissed his application on 9-12-2014 on the ground that judicial proceedings had been concluded and K. Chandran had been convicted. The issue which arose pertained to the intent and purport of Rule 3-A of Part III of the Kerala Service Rules (for short "KSR"), which was stated to require the outcome of departmental or judicial proceedings to be concluded for the release of DCRG. Thus, if the criminal case went against K. Chandran, it had to be withheld or otherwise it had to be released. It was opined that K. Chandran being a convict and that too for receiving a bribe, could not claim entitlement to the DCRG and, thus, accepting his application would defeat the very purpose of the Rule.

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40.We also believe that it is a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction has arisen. This is especially so where the convicted person has availed of the remedy of appeal. An appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial proceedings. For example, if no appeal had been filed, can it be said that despite conviction in the criminal case, the State is without authority of forfeiting the DCRG or pension for that matter? If it is not so, as we believe, then the pendency of the appeal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal."

¶10A full Bench of this Court in Pyare Lal (supra) while adverting with Rule 2.2 (c) of Punjab Civil Service Rules (Volume-II) has noticed that gratuity or death cum retirement gratuity and no other retiral benefits can be withheld.

¶11The Supreme Court in above noted case in Para 29 has considered object of withholding gratuity. Court has found that object of withholding is to recover the amount found due from the delinquent employer or deny in case of dismissal from service. Para 29 is reproduced as below: "25. 6e  must  keep  in  mind  the  very  ob2ectives  of holding back pension or the )(!1. 7ne can be to recover  the  amounts  found  due  from  the  delintiuent employee of any nature whatsoever after appropriate notice and proceedings. The second eventuality is if an employee is dismissed from service.  t can hardly be doubted that in the second eventuality of the dismissal CWP-10217-2017 9 2024:PHHC:010534 fron  service  the  employee  would  lose  all  retirement benefits.3 In the case in hand, the employee has retired and his appeal against conviction is pending before this Court. No recovery is pending him, however, as contemplated by Supreme Court, he may be dismissed from service after confirmation of his conviction. In case, State decides not to dismiss the petitioner or Rules do not permit, the petitioner after final adjudication of criminal proceedings would be entitled to gratuity.

¶12In the backdrop of afore-cited facts and law laid down by Supreme Court, this Court is of the considered opinion that petitioner at this stage cannot be released gratuity. Thus, present petition deserves to be dismissed and accordingly dismissed. It is hereby made clear that dismissal of this petition would not absolutely debar petitioner from asking for release of gratuity. The petitioner, in accordance with law, would be at liberty to move an appropriate application to authorities after final adjudication of criminal proceedings.

( JAGMOHAN BANSAL ) JUDGE

25.01.2024 Ali

CWP-10217-2017 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-10217-2017 Date of Decision:25.01.2024 SHIV NATH ......... Petitioner Versus STATE OF PUNJAB AND ORS. ..... Respondents CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL Present : Mr. Tahaf Bains, Advocate for the petitioner. Mr. Aman Dhir, DAG, Punjab. ****