Rajasthan High Court - Jodhpur

Kamal Kishore Rathi vs State Of Rajasthan And Ors on 21 October, 2022

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7889/2017

Kamal Kishore Rathi S/o Sh. Devi Lal Ji Rathi, By Caste Rathi, Resident Of 72, Sant Bhawan, Shantipriya Nagar, Chopasani Road, Jodhpur

----Petitioner Versus

1. State Of Rajasthan Through The Principal Secretary To The Government, Department Of Industries, Udyog Bhawan, Tilak Marg, Jaipur.

2. Commissioner Of Industries, Government Of Rajasthan, Udyog Bhawan, Tilak Marg, Jaipur.

3. Rajasthan Khadi Evem Gramodog Board, Jaipur Through Secretary At Jawahar Lal Nehru Marg, Bajaj Nagar, Jaipur.

4. Joint Director, Director Of Pensioner And Pensioners Welfare, Jaipur

----Respondents

For Petitioner(s) : Dr. Harish Purohit For Respondent(s) : Mr. N.S. Rajpurohit

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

21/10/2022

The present writ petition has been filed with a prayer for

grant of pension and amount of commutation to the petitioner.

The brief facts of the case are as under :

The petitioner who was working on the post of District

Industry Inspector with the respondent-Department, after

completion of his tenure of service, stood retired on 31.08.2016.

During the tenure of his service, a criminal case was registered

against him in which he was acquitted vide order dated

05.11.2011. An appeal against the said order of acquittal was

(2 of 5) [CW-7889/2017]

preferred by the State which remains pending till date. However,

during that complete period no departmental proceedings were

initiated against the petitioner and on retirement, all his retiral

benefits were granted to him but he was deprived of regular

pension and amount of commutation on the ground that the

appeal against the order of acquittal is pending.

Learned counsel for the petitioner submitted that once he

had been acquitted in the criminal case there was no occasion for

the respondent-Department to deprive him of his regular pension

only on the ground of an appeal being pending against him. The

document (Annexure-3) whereby the objections had been raised

by the Department of Pension has been placed on record and the

reply to the same as forwarded by the employer of the petitioner

has also been placed on record. A perusal of the reply specifies

that all the objections as raised by the Pension Department have

been duly replied by the Employer Department and therefore, no

cause then survived to withhold the pension of the petitioner.

Learned counsel for the petitioner relied upon the judgment

passed in the case of a similarly situated employee namely Mohan

Lal in S.B. Civil Writ Petition No.2055/2011 (Mohan Lal Vs.

Rajasthan Rajya Vidut Prasaran Nigam Ltd. & Ors.) decided

on 04.12.2014 which was further affirmed by the Division Bench

in D.B. Civil Special Appeal (Writ) No.180/2015 (Rajasthan

Rajya Vidut Prasaran Nigam Ltd. & Ors. Vs. Mohan Lal)

decided on 04.07.2015.

Per contra, learned counsel for the respondents submitted

that the pension Rules specifically provide that in case where

judicial proceedings are pending against an employee, he would

be entitled to provisional pension only. Learned counsel submitted

(3 of 5) [CW-7889/2017]

that the case for grant of provisional pension to the petitioner

could not be finalised only because the queries as raised by the

Department were not replied to by the petitioner. It has further

been submitted that a direction had been sought by the

Department from the State Government and in terms of the same,

the case for provisional pension was to be prepared by the

Department but as the petitioner did not file appropriate

application for provisional pension, the matter could not be

proceeded upon.

Heard learned counsel for the parties. Perused the material

available on record.

It is clear on record that the petitioner had been acquitted in

the criminal case vide order dated 05.11.2011 and an appeal was

preferred by the State against the said order and the same

remains pending till date. It is also admitted on record that no

departmental proceedings against the petitioner were ever

initiated by the Department. In Mohan Lal's case (supra), while

relying upon an earlier judgment in the case of Sridan Vs. State

of Rajasthan & Ors. (S.B. Civil Writ Petition

No.1443/2012), decided on 13.12.2012, it was observed as

under :

"5. It may be stated here that the time which may be consumed in the decision of the appeal preferred by the State against the acquittal of the petitioner is totally uncertain. It may take decades for the said appeal to be decided.

6. Depriving the petitioner of the benefits, to which, he is otherwise entitled merely on the basis of pendency of the appeal against the acquittal, cannot be justified by any stretch of imagination as held by this Court in Sridan's case."

(4 of 5) [CW-7889/2017]

In the appeal preferred in the case of Mohan Lal, the Division

Bench while affirming the order of the Single Bench observed as

under :

"7. Admittedly, the respondent-writ petitioner was acquitted by a competent court vide order dated 15.9.2000. During pendency of the disciplinary proceedings, the petitioner was placed under suspension vide order dated 24.6.1998. He was reinstated in service vide order dated 14.3.2000, without prejudice to the disciplinary proceedings/criminal proceedings pending against him. Subsequent to his reinstatement, the petitioner was also acquitted by the criminal court vide judgment dated 16.9.2000. The order acquitting the respondent petitioner is in force till the same is not altered by an appellate court. As on date, there is no impediment in granting the selection grade and other service benefits that have become due to the respondent-writ petitioner. Moreover it is always open to the appellants to initiate departmental proceedings against the respondent should the appeal be allowed. However at the present moment it is highly unjust to withhold the service benefits which have accrued to him on the ground of pendency of the appeal."

In Sridan's case (supra), it was observed as under :

"In view of Full Bench judgment of this Court in the case of Union of India Vs. Ramswarup (supra), the conviction or acquittal as the case may be by the trial court is final till the same is not altered by the appellate court. In view of this legal position, the pendency of application seeking leave to appeal is no impediment in granting selection grades, annual grade increments, revision of pay-scales and all other pensionary benefits to the petitioner..."

This Court in the matter of Smt. Kamla Choudhary Vs.

State of Rajasthan & Ors (S.B. Civil Writ Petition

No.6766/2016) decided on 12.10.2022, observed as under :

"It is admitted on record that neither any department proceeding was initiated against the petitioner by the respondent-Department nor any charge-sheet whatsoever pertaining to any charge was served on her. Therefore, it cannot be contemplated that the respondent-Department ever had any

(5 of 5) [CW-7889/2017]

intention to undertake any departmental proceedings/inquiry against the petitioner. The only reason assigned for withholding of service benefits of the petitioner is that the criminal appeal had been preferred by the respondent-State against the order of acquittal. It is also not the case of the respondents that any interim order had been granted in favour of the State in the criminal appeal. In the opinion of this Court, it goes without saying that if the appeal preferred by the respondent-State is allowed and the petitioner is held guilty of any offence, the consequence of the same would automatically follow. It would always be open for the respondent-Department to act in accordance with the judgment delivered by the Criminal Court in the appeal preferred by the respondent-State. The same would not require any order or direction of any Court. But only because of the pendency of an appeal, the petitioner cannot be subjected to any financial loss which indirectly amount to a penalty."

In view of the observations as made in the cases of Sridan

and Mohan Lal (supra), it can be concluded that the pendency of

an appeal is no impediment in granting the service as well as the

pensionary benefits to an employee.

Accordingly, the present writ petition is allowed. The

respondent authorities are directed to release the pension and

amount of commutation to the petitioner with effect from the date

he is legally entitled to. The required action be taken by the

Department within a period of three weeks of the date of receipt

of copy of the present order.