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.