Chattisgarh High Court

Umesh Chandra Shrivastava vs State Of Chhattisgarh on 20 December, 2021

                                   1
                                                                  NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                        WPS No.372 of 2016

        Umesh Chandra Shrivastava, son of Lt. Shri V.B.L. Shrivastva,
        aged about 63 years, Ret. Assistant Grade-2, resident of
        Namnakala near Power House Ambikapur, District Surguja
        Chhattisgarh

                                                          ---- Petitioner
                                Versus

     1. State of Chhattisgarh, through the Secretary, Department of
        Revenue, Mahanadi, Naya Raipur (CG)
     2. Commissioner, Surguja Division, Ambikapur, District Surguja
        (CG)
     3. Joint Director, Treasury, Accounts and Pension, Surguja
        Division, Ambikapur, District Surguja (CG)
     4. Collector, Surguja, Ambikapur, District Surguja (CG)
                                                       ---- Respondents

For Petitioner : Mr.Praveen Das, Advocate For Respondents : Mr.Amrito Das, Addl.A.G.

Hon'ble Shri Justice Sanjay K. Agrawal

Order on Board

20/12/2021

1. The petitioner stood retired from the office of the collectorate,

Ambikapur, District Surguja on 30.9.2015, but he was paid only

anticipatory pension to the extent of 90% and his gratuity and

leave encashment have also been withheld on the ground that

criminal case has been registered for offences punishable under

Sections 420, 409, 467, 468, 471 and 120B of the IPC and

Sections 13 (1) (c) & (d) and 13(2) of the Prevention of Corruption

Act, 1988 by the Anti Corruption Bureau, State Economic Offence

Wing, Raipur against the petitioner and others, as such, the

petitioner has filed this writ petition for issuance of direction to

the respondents to release his full pension, gratuity and leave

encashment.

2. Return has been filed by the respondents stating inter-alia that

offences have been registered against the petitioner and

investigation is going on, therefore, the petitioner is not entitled

for full pension and also not entitled for gratuity as well as leave

eacashment.

3. Pursuant to the order of this Court dated 14.12.2021, additional

affidavit has been filed by the Deputy Collector, Ambikapur

stating inter-alia that since investigation is pending against the

petitioner for the aforesaid offences, therefore, balance pension,

amount of gratuity and leave eacashment have not been

disbursed to him.

4. Mr.Praveen Das, learned counsel appearing for the petitioner,

would submit that since on the date of retirement and even till

today no judicial proceedings have been instituted against the

petitioner in terms of Rule 9(6)(b)(i) of the Chhattisgarh Civil

Services (Pension) Rules, 1976 (hereinafter called as 'Rules of

1976'), therefore, by virtue of Rule 64 (1)(c) of the Rules of 1976,

amount of gratuity cannot be withheld and as such, the petitioner

is entitled for full pension, an amount of gratuity and leave

encashment as well.

5. On the other hand, Mr.Amrito Das, learned Additional Advocate

General for the respondents/State, would submit that since

investigation for aforesaid offences are pending against the

petitioner and charge-sheet has yet to be filed, therefore, the

petitioner is not entitled for full pension, an amount of gratuity

and leave encashment.

6. I have heard learned counsel appearing for the parties,

considered their rival submissions made herein-above and also

went through the records with utmost circumspection.

7. The first question for consideration is, whether the State

Government is justified in not releasing full amount of pension in

favour of the petitioner ?

8. Rule 9(4) of the Rules of 1976 is enabling provision for grant of

provisional pension during the pendency of judicial proceedings

and juridical proceedings have defined in Rule 9(6)(b)(i) of the

Rules of 1976. Rule 9(4) and 9(6)(b)(i) of the Rules of 1976 states

as under:-

"(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension and death-cum-retirement gratuity as provided in Rule 64, as the case may be, shall be sanctioned...."

(6) For the purpose of this rule-

         (a)     xxx          xxx           xxx
         (b) judicial      proceedings      shall   be   deemed       to    be
         instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; and

(ii) xxx xxx xxx"

9. Hindi version of Rule 9(4) of the Rules of 1976 states as under:-

"(4½ bl ekeys esa tgka 'kkldh; lsod vf/kokf"kZdh vk;q ij igqapus ;k

vU;Fkk ls lsokfuo`Ÿk gqvk gS] rFkk ftlds fo:) dksbZ foHkkxh; ;k U;kf;d dk;Zokfg;ka lafLFkr gSa vFkok tgka foHkkxh; dk;Zokfg;ka mufu;e ¼2½ ds v/khu fujUrj gSa] vufUre isa'ku rFkk e`R;q&lg&lsokfuo`fŸk minku] tSlk fu;e 64 esa micaf/kr gS] eatwj gksxkA"

10. This Court in WPS No.295 of 2016 (Dr.S.D.Dwivedi v. The

State of Chhattisgarh and others) relying upon the judgment

of the Madhya Pradesh High Court in the matter of Mangilal

Suratsingh and another v. Board of Revenue M.P., Gwalior

and others1 has held that official language of the State of

Chhattisgarh is Hindi for the purposes of notifications and Rules

as mandated in Section 4 of the Madhya Pradesh Official

Language Act, 1957. Therefore, Hindi version of the Rules of 1976

would be preferable. Rule 9 (4) of the Rules of 1976 clearly

provides that in order to invoke Rule 64 (1) (c) of the Rules of

1976 to withhold the gratuity till conclusion of the judicial

proceedings, judicial proceedings must be instituted and pending

on the date of retirement as provided in Rule 9(6)(b)(i) of the

Rules of 1976 as judicial proceedings shall be deemed to be

instituted in the case of criminal proceedings, on the date on

which the complaint or report of a police officer, of which the

Magistrate takes cognizance is made.

11. The said order passed by this Court in Dr.S.D.Dwivedi

(supra) has been affirmed by the Division Bench of this Court in

WA No.468 of 2018 (The State of Chhattisgarh and others v.

Dr.S.D.Dwivedi), decided on 20.06.2018.

12. Admittedly, no judicial proceedings (criminal) in terms of

Rule 9(6)(b)(i) of the Rules of 1976 were instituted or pending on

1 1983 M.P.L.J. 254

the date of the petitioner's retirement on 30.9.2015 and till

today, no charge-sheet has been filed and no cognizance has

been taken by the juridical criminal Court. As such, respondent

No.1 could not have withheld the pension of the petitioner as on

the date of retirement, judicial proceedings as provided in Rule

9(4) of the Rules of 1976 were not pending or instituted in terms

of Rule 9(6)(b)(i) of the Rules of 1976. Therefore, the respondents

are directed to make payment of arrears of pension within 30

days from today with 8% interest which has fallen due till the

date of payment.

13. Coming to the question of gratuity. Section 64(1) (c) of the

Rules of 1976 states as under:-

"64. Provisional pension where departmental or judicial proceedings may be pending-

(1) (a) and (b) xxx xxx xxx

(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 16 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966, for imposing any of the penalties specified in clauses (i), (ii) and (iv) of Rule 10 of the said rules, the payment of provisional gratuity to the extent of 90% of the gratuities admissible under the rules shall also be authorised to be paid to the government servant.

       (2)   xxx         xxx         xxx."


14.    Undisputedly and admittedly, as held above,              neither

departmental nor judicial proceedings were pending against the

petitioner on the date of retirement i.e. on 30.9.2015. Therefore,

the provisions contained in Section 64(1)(c) of the Rules of 1976

are equally be inapplicable in case of the petitioner. Therefore,

the petitioner is entitled for full gratuity on the date of retirement

and even the State Government is unjustified in withholding the

amount of leave encashment.

15. In that view of the matter, the respondents are directed to

release the amount of full gratuity in favour of the petitioner

within 30 days with interest at the rate of 8% from the date of

entitlement till the date of actual payment. He is also entitled for

full pension and balance pension will be paid within 30 days with

interest at the rate of 8% and also entitled for leave encashment.