PETITIONER: STATE OF ORISSA AND ORS. Vs. RESPONDENT: KALICHARAN MOHAPATRA AND ANR. DATE OF JUDGMENT20/09/1995 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MUKHERJEE M.K. (J) CITATION: 1996 AIR 684 1995 SCC (6) 105 JT 1995 (7) 167 1995 SCALE (5)506 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
B.P. JEEVAN REDDY, J.
Leave granted.
This appeal is preferred against the judgment of the
Central Administrative Tribunal (Cuttack Bench) allowing the
Original Application filed by the respondent and directing
the appellants (respondents in the Original Application) to
release final pension and gratuity to the respondent within
ninety days of the judgment.
The respondent was a member of the Indian Police
Service. He retired on December 31, 1990. About six months
prior to his retirement, a raid was conducted on his
residential premises. On the basis of the material
recovered, a prosecution has been launched against him in
the Special Court, Cuttack under Section 13(2) read with
Section 13(1) of the Prevention of Corruption Act for being
in possession of assets disproportionate to his known
sources of income. [According to Section 13(1) of the said
Act, misconduct includes being in possession of assets
disproportionate to his known sources of income.] The case
is still pending. In view of the pendency of the said
criminal case, the appellants withheld the gratuity amount
and did not also sanction the pension finally. A provisional
pension equal to ninety percent of his entitlement was,
however, sanctioned. Aggrieved by the refusal to release the
gratuity amount and the refusal to sanction his pension
finally, the respondent approached the Tribunal.
The appellants relied upon Rule 6 of the All India
Services (Death-cum-Retirement Benefits) Rules, 1958 in
support of their action. The appellants’ case was that in
view of the pendency of the said criminal case, they were
justified in withholding the gratuity amount and also in not
sanctioning the pension finally. The Tribunal has held that
the said rule does not avail the appellants inasmuch as the
charge against the respondent is not one of causing
pecuniary loss to the Central or State Government by
misconduct or negligence within the meaning of Rule 6(1). We
are of the opinion that the reading of the rule by the
Tribunal is unsustainable and incorrect. The rule reads
thus:
“6. Recovery from pension:- 6(1) The
Central Government reserves to itself
the right of withholding or withdrawing
a pension or any part of it, whether
permanently or for a specified period,
and the right of ordering the recovery
from pension of the whole or part of any
pecuniary loss caused to the Central or
a State Government, if the pensioner is
found in a departmental or judicial
proceedings to have been guilty of grave
misconduct or to have caused pecuniary
loss to the Central or a State
Government by misconduct or negligence,
during his service, including service
rendered or re-employment after
retirement.
Provided that no such order shall
be passed without consulting the Union
Public Service Commission:–
Provided further that–
(a) such departmental proceeding, if
instituted while the pensioner was in
service, whether before his retirement
or during his re-employment, shall,
after the final retirement of the
pensioner, be deemed to be a proceeding
under this sub-rule and shall be
continued and concluded by the authority
by which it was commenced in the same
manner as if the pensioner had continued
in service;
(b) [Omitted as unnecessary]
(c) [Omitted as unnecessary]
Explanation.- For the purpose of this
rule:-
(a) a departmental proceeding shall be
deemed to be instituted which the
charges framed against the pensioner are
issued to his or, if he has been placed
under suspension from an earlier date,
on such date and
(b) a judicial proceeding shall be
deemed to be instituted–
(i) in the case of criminal
proceedings, on the date on which a
complaint is made or a charge-sheet
is submitted, to the criminal
court; and
(ii) in the case of civil
proceedings, on the date on which
the plaint is presented or, as the
case may be, an application is
made, to a civil court.
(2) Where any departmental or judicial
proceeding is instituted under sub-rule
(1), or where a departmental proceeding
is continued under clause (a) of the
proviso thereto against an officer who
has retired on attaining the age of
compulsory retirement or otherwise, he
shall be sanctioned by the Government
which instituted such proceedings,
during the period commencing from the
date of his retirement to the date on
which, upon conclusion of such
proceeding final orders are passed, a
provisional pension not exceeding the
maximum pension which would have been
admissible on the basis of his
qualifying service upto the date of
retirement, or if he was under
suspension on the date of retirement,
upto the date immediately preceding 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 the issue of final
orders thereon.
Provided that where disciplinary
proceeding has been instituted against a
member of the Service before his
retirement service under rule 10 of the
All India Service (Discipline and
Appeal) Rules, 1969, for imposing any of
the penalties specified in clause (i),
(ii) and (iv) of sub-rule 1 of rule 6 of
the said rules and continuing such
proceeding under sub-rule (1) of this
rule after his retirement from service,
the payment of gratuity or Death-cum-
Retirement gratuity shall not be
withheld.
(3) [Omitted as unnecessary].”
A reading of sub-rule (1) of Rule 6 discloses the
following features: (a) if the pensioner is found in a
departmental or judicial proceeding to have been guilty of
grave misconduct or (b) where a pensioner is found in a
departmental or judicial proceeding to have caused pecuniary
loss to the Central or State Government by his misconduct or
negligence during his service (including the service
rendered on re-employment after retirement), (c) the Central
Government is entitled to withhold or withdraw pension or
any part of it whether permanently or for a specified
period. The Central Government is also entitled to order
recovery from pension of the whole or part of any pecuniary
loss caused to the Central or State Government. Sub-rule (2)
says that (a) where a departmental or judicial proceeding is
instituted under sub-section (1) or (b) where a departmental
proceeding is continued under clause (a) of the proviso to
sub-rule (1), (c) such employee shall be sanctioned by the
government which instituted such proceedings a provisional
pension not exceeding the maximum pension admissible to him
during the period of pendency of such proceeding, (d) but no
gratuity or death-cum-retirement gratuity shall be paid to
him until the conclusion of such proceedings and the
issuance of final orders thereon.
It is thus clear from an analysis of sub-rules (1) and
(2) that where a judicial proceeding is pending against a
pensioner for grave misconduct, the government is entitled
to withhold gratuity amount and/or death-cum-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 proceeding 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 thereunder 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 and
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 2(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.
The Tribunal was, therefore, in error in holding that
unless the charge expressly charges the pensioner with
causing pecuniary loss to Central or State Government by his
negligence or misconduct during his service, the action
under sub-rule (2) of Rule 6 cannot be taken.
The appeal is accordingly allowed and the judgment of
the Tribunal is set aside. No order as to costs.