Anand Sarup Guar vs Chief Secretary, Govt. Of Nct Of ...
2002 Latest Caselaw 913 Del

JUDGMENT

S.B. Sinha, C.J.

1. Interpretation of Rule 9(6)(b) of the Central Civil Service (Pension) Rules, 1972 (hereinafter called and referred to as "the Rules" for short) is involved in this writ petition.

2. The petitioner herein joined Government service on 21st July 1964. He was later on inducted in Grade-I, Delhi Administration Subordinate Service and at the time of his superannuation, he was posted as Superintendent in the Officer of Deputy Commissioner. When the petitioner was on long leave, he was transferred but he did not join and continued to send his application for extension of leave on various grounds but no decision thereupon had been taken.

3. It is not in dispute that on or about 28th September 1993, a First Information Report was registered against the petitioner. The petitioner served three months' notice seeking voluntary retirement in terms of Rule 56(K) of the Fundamental and Supplementary Rules by letter dated 31st March 1995. Upon expiry of the said period, the petitioner submitted his pension papers on 27th September 1995. However,no pension was paid to him despite the fact that the Central Government cannot refuse to accept such offer of voluntary retirement. As a question arose as to which office of the Govt. was to take a decision as regards payment of pension to the petitioner and as no decision thereupon was taken, the petitioner filed an application before the Central Administrative Tribunal which was marked as OA No. 1643/1996. By a judgment and order dated 1st October 1997, the Chief Secretary, Government of Delhi was directed to take a decision on the matter in terms of the provisions of FR 56(K) and also in the light of the Supreme Court judgments within a period of three weeks and thereafter to pass orders on the petition for the date of receipt of a copy of the order by the petitioners as also the grant of pension within the time frame specified therein.

4. Pursuant to or in furtherance of the said directions of the Central Administrative Tribunal, the following actions were taken:

"(a) Notice dated 31.3.1995 for Voluntary retirement was accepted w.e.f. 30.6.1995 vide order dated the 15th Dec. 1997. (Annexure P-II)

(b) Thereafter leave case of the petitioner was decided by the Secretary (Revenue) vide his order No. F.1 (306)/92/ GA/ESTT./DC/171-80 dated 8.1.1998.

(Annexure P-III)"

5. However, despite the same, only provisional pension was sanctioned on 3rd October 1998. The petitioner thereafter filed another application before the Central Administrative Tribunal which was marked as OA No. 2336/98 claiming, inter alia, the following reliefs:

"(i) to quash and set aside impugned order No PAO-VI/Pen/4489 dt.

3.10.1998.

(ii) to direct the respondents to release his regular pension w.e.f. 1.7.1995 and to pay arrears thereof with interest at 18% p.a. w.e.f. 1.7.1995 till payment.

(iii) to direct the respondents to pay to the applicant commuted value of pension admissible under the rules as it would have been paid to the applicant as on 1.7.1995 with interest at 18% p.a. w.e.f. 1.7.1995 till payment.

(iv) to direct the respondent to pay the DCR gratuity admissible under the rules with interest at 18% p.a. w.e.f. 1.7.1995 till payment.

(v) to direct the respondent to pay the applicant leave salary as sanctioned by order dt. 8.1.1998 with interest at 18% p.a. till payment.

(vi) to direct payment of amount standing to the credit of the applicant in his GPF account as on 30.6.1995 with interest at 18% till realization.

(vii) to direct payment of amount of group insurance.

(vii) to award cost of these proceedings."

6. The contention of the respondent in the said Original Application before the Tribunal was that as at the relevant point of time, on investigation pursuant to the First Information Report was pending resulting into filing of a charge-sheet, the petitioner was not entitled to grant of any pension. The learned Tribunal agreed with the following contention holding:-

"In this case cognizance may be taken later but once cognizance is taken it refers back to the date on which the complaint or report of a police officer is made. Registration of a case amounts to such a compliant. Judicial proceedings must be held to have started by relating back to the date when the compliant was registered. In view of the above, the OA is dismissed. No costs."

7. The learned Tribunal, in support of the afore-mentioned finding relied upon a decision of the Apex Court in Delhi Development Authority v. H.S. Khurana, .

8. Mr. G.R. Matta, the learned counsel appearing for the petitioner would submit that the learned Tribunal committed an illegality in so far as it failed to take into consideration that lodging of the First Information Report would not come with the purview of definition of 'judicial proceeding'. According to the learned counsel, the petitioner would be deemed to have retired on 15th December 1997 and only because cognizance had been taken by the court on 4th July 1998 on a First Information Report, which was lodged on 28th September 1993, the doctrine of 'relating back' cannot be taken recourse to. According to the learned counsel, even provisional pension had been granted on 3rd October 1998 and in that view of the matter, it must be held that the respondent had accepted voluntary retirement of the petitioner w.e.f. 31st March 1995.

9. Mr. V.K. Shali, learned counsel for the respondents, however, would submit that in the instant case, doctrine of 'relating back' would apply.

10. It is not dispute that the matter governed by the CCS (Pension) Rules. In terms of Sub-rule (2) of Rule 5, the date on which a Government servant retires or is retired or is discharged or is allowed to resign from service, shall be treated as his last working day. However, when a person reties on a non-working day, under Rule 56 of the Fundamental Rules, the date of retirement shall be treated as a non-working day. Rule 7 provides for limitation. Rule 8 provides that grant of pension would be subject to future good conduct. Rule 8(1)(b) empowers the appointing authority to withhold or withdraw a pension or a part thereof, if the petitioner is convicted of a serious crime or is found guilty of grave misconduct. Sub-rule (2) of Rule 8 provides that where a pensioner is convicted of a serious crime by a Court of Law, action under Sub-rule(1) shall be taken in the light of the judgment of the court relating to such conviction. Rule 9 empowers the President to withhold or withdraw pension, if the conditions precedent therefore are satisfied which would include, inter alia, that the pensioner is found guilty of grave misconduct or negligence, during the period of service in any departmental or judicial proceedings.

Rule 9(2) of the Pension Rules reads thus:

"9. Right of President to withhold or withdraw pension

(1) xxx

(2) (a) xxx

(b) The departmental proceedings, if not instituted while to Government servant was in service, whether before his retirement, or during his re-employment,--

(i) shall not be instituted save with the sanction of the President.

(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 President 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 Government servant during his service."

11. An order in terms of the said provision, therefore, shall be subject to compliance of the provisions of Rule 992)(b) of the Rules. In terms of Sub-rule (4) of Rule 9, only in case the government servant retires on attaining the age of superannuation or otherwise and against whom departmental proceedings have been instituted, a provisional pension as provided in Rule 69 shall be sanctioned.

12. Clause (b) of Sub-rule (6) of Rule 9 defines the 'judicial proceedings' for the purpose of the said rules, in the following terms:-

"9.(6) For the purpose of this rule,--

(a) 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) in the case of civil proceedings, on the date the plaint is presented in the court."

13. Sub-rule (4) of Rule 9 curves out an exception thereto. Such an exception, therefore, has to be strictly construed.

14. Provisional pension, as provided for in Rule 69 may not be sanctioned unless and until, inter alia, a judicial proceedings was pending on the date of retirement of the concerned employee. By reason of clause

(b) of Sub-rule (6) of Rule 9, legal fiction has been created. Criminal proceedings in terms of he afore-mentioned provisions would be deemed to have been instituted on the date on which a complaint or a report of a police officer of which the Magistrate takes cognizance, is made.

15. 'Complaint' is defined in Section 2(d) of the Code of Criminal Procedure.

16. First Information Report is not complaint with the meaning of the said provision. Report of a police officer whereupon cognizance can be taken by a Magistrate in terms of Section 190 of the Code of Criminal Procedure, would be a report which is to be filed in terms of Section 173 thereof.

17. On the date on which the petitioner had retired, although a First Information Report had been lodged, neither any complaint nor any report of the police officer on which cognizance could be taken by a Magistrate, was pending.

18. In that view of the matter, Rule 9(6)(b) in the instant case will have no application.

19. It is now well known that a legal fiction shall not be extended beyond its scope and object (See Bengal Immunity Co. Ltd. v. State of Bihar and Ors. .

20. In State of Orissa and Ors. v. Kalicharan Mohapatra and Anr., whereupon Mr. Shali has placed strong reliance, a question arose as to whether although no proceedings had been pending against the retiree on a charge of causing pecuniary loss to the Central or State Government by negligence or misconduct during service, whether pension or gratuity can be withheld and in that situation the apex court held:

"6. It is thus clear from an analysis of Sub-rules (1) (2) that where a judicial proceedings is pending against a pensioner for grave misconduct, the Government is entitled to withhold gratuity amount and/or death-cum-retirement gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceedings. It is not necessary that a judicial proceedings should relate to the charge of causing pecuniary loss to the Central or State Government by misconduct or negligence during his service. Sub-rule (1) of Rule 6 specifies two grounds upon which action there under can be taken. One is where the pensioner is found guilty of grave misconduct and the other is where he is found to have caused pecuniary loss to the Central or State Government by misconduct and negligence during his service. Sub-rule (2) provides for orders to be made during the pendency of such proceedings. It may also be mentioned that neither the All India Service (Death-cum-Retirement) Rules nor the Pensions Act, General Clauses Act or the Leave rules [referred to in Rule 29(2)] define the expression misconduct'. It would therefore, be reasonable and permissible to understand the said expression in Rule 6 aforesaid in the manner defined in the Prevention of Corruption Act."

21. In that case a criminal case of possession of assets disproportionate to the known source of income of the accused was instituted six months prior to his date of retirement.

22. In Delhi Development Authority v. H.S. Khurana (supra), the question which arose for consideration before the apex court was as to whether on the facts and circumstances of the case, the decision of the Apex Court in Union of India v. K.V. Jankiraman, , had correctly been applied. In that case, a preliminary memo was file don the respondent on 6th November 1985. The charge-sheet was framed on 11th July 1990. A Departmental Promotion Committee held its meeting on 28th November 1990. The DPC adopted the 'sealed cover procedure'. The relevant provision which was the subject matter of decision in the factual background of the afore-mentioned case was Clause (ii) of para 2 in the OM dated September 14,1992 which was the guideline applicable at the material time, is as under:

"(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;"

23. The learned Tribunal, therefore, in our opinion has committed a serious error in relying upon the said decision as the same was rendered in a different fact situation and on a different legal perspective.

24. It is not dispute that having regard to the decision of the Apex Court in M.L. Malik v. Lt. Governor and Ors., 1988 (5) SLR 777, the respondent had no jurisdiction to refuse to accept the offer of voluntary retirement by the petitioner. (See also Dinish Chandra Sangma v. State of Assam, , B.L. Shelat v.State of Gujarat, (1978) 2 SCC 70 and Union of India v. Sayyad Muzzafar Mir, 1995 Supply (1) SCC 76).

25. In the afore-mentioned situation, as no judicial proceeding was pending against the petitioner on the date of his retirement, the petitioner could not have been denied he benefit of pension. Furthermore, the provisions of pension rules being beneficent provisions, must be construed liberally.

26. In any event, in the event the petitioner is convicted, appropriate action in terms of the pension rules can be taken against him. We, therefore, are of the opinion that the impugned judgment of the Tribunal cannot be sustained, which is set aside accordingly.

The writ petition is allowed with no orders as to costs.