{"id":241168,"date":"2002-05-31T00:00:00","date_gmt":"2002-05-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anand-sarup-guar-vs-chief-secretary-govt-of-nct-of-on-31-may-2002"},"modified":"2017-06-16T04:42:53","modified_gmt":"2017-06-15T23:12:53","slug":"anand-sarup-guar-vs-chief-secretary-govt-of-nct-of-on-31-may-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anand-sarup-guar-vs-chief-secretary-govt-of-nct-of-on-31-may-2002","title":{"rendered":"Anand Sarup Guar vs Chief Secretary, Govt. Of Nct Of … on 31 May, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Anand Sarup Guar vs Chief Secretary, Govt. Of Nct Of … on 31 May, 2002<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  S.B. Sinha, C.J.  <\/p>\n
 1.
\nInterpretation of Rule 9(6)(b) of the Central Civil Service
\n(Pension) Rules, 1972 (hereinafter called and referred to as “the Rules” for
\nshort) is involved in this writ petition.\n<\/p>\n
 2. The petitioner herein joined Government service on 21st
\nJuly 1964. He was later on inducted in Grade-I, Delhi Administration
\nSubordinate Service and at the time of his superannuation, he was posted
\nas Superintendent in the Officer of Deputy Commissioner. When the
\npetitioner was on long leave, he was transferred but he did not join and
\ncontinued to send his application for extension of leave on various
\ngrounds but no decision thereupon had been taken.\n<\/p>\n
3. It is not in dispute that on or about 28th September 1993, a
\nFirst Information Report was registered against the petitioner. The
\npetitioner served three months’ notice seeking voluntary retirement in
\nterms of Rule 56(K) of the Fundamental and Supplementary Rules by
\nletter dated 31st March 1995. Upon expiry of the said period, the
\npetitioner submitted his pension papers on 27th September 1995.
\nHowever,no pension was paid to him despite the fact that the Central
\nGovernment cannot refuse to accept such offer of voluntary retirement.
\nAs a question arose as to which office of the Govt. was to take a decision
\nas regards payment of pension to the petitioner and as no decision
\nthereupon was taken, the petitioner filed an application before the Central
\nAdministrative Tribunal which was marked as OA No. 1643\/1996. By a
\njudgment and order dated 1st October 1997, the Chief Secretary,
\nGovernment of Delhi was directed to take a decision on the matter in
\nterms of the provisions of FR 56(K) and also in the light of the Supreme
\nCourt judgments within a period of three weeks and thereafter to pass
\norders on the petition for the date of receipt of a copy of the order by the
\npetitioners as also the grant of pension within the time frame specified
\ntherein.\n<\/p>\n
4. Pursuant to or in furtherance of the said directions of the
\nCentral Administrative Tribunal, the following actions were taken:\n<\/p>\n
“(a) Notice dated 31.3.1995 for
\nVoluntary retirement was accepted w.e.f.
\n30.6.1995 vide order dated the 15th Dec.
\n1997. (Annexure P-II) <\/p>\n
(b) Thereafter leave case of the
\npetitioner was decided by the Secretary
\n(Revenue) vide his order No. F.1 (306)\/92\/
\nGA\/ESTT.\/DC\/171-80 dated 8.1.1998.\n<\/p>\n
(Annexure P-III)”\n<\/p>\n
5. However, despite the same, only provisional pension was
\nsanctioned on 3rd October 1998. The petitioner thereafter filed another
\napplication before the Central Administrative Tribunal which was marked
\nas OA No. 2336\/98 claiming, inter alia, the following reliefs:\n<\/p>\n
“(i) to quash and set aside impugned
\norder No PAO-VI\/Pen\/4489 dt.\n<\/p>\n
3.10.1998.\n<\/p>\n
(ii) to direct the respondents to release
\nhis regular pension w.e.f. 1.7.1995 and to
\npay arrears thereof with interest at 18% p.a.
\nw.e.f. 1.7.1995 till payment.\n<\/p>\n
(iii) to direct the respondents to pay to
\nthe applicant commuted value of pension
\nadmissible under the rules as it would have
\nbeen paid to the applicant as on 1.7.1995
\nwith interest at 18% p.a. w.e.f. 1.7.1995 till
\npayment.\n<\/p>\n
(iv) to direct the respondent to pay the
\nDCR gratuity admissible under the rules
\nwith interest at 18% p.a. w.e.f. 1.7.1995 till
\npayment.\n<\/p>\n
(v) to direct the respondent to pay the
\napplicant leave salary as sanctioned by order
\ndt. 8.1.1998 with interest at 18% p.a. till
\npayment.\n<\/p>\n
(vi) to direct payment of amount standing
\nto the credit of the applicant in his GPF
\naccount as on 30.6.1995 with interest at 18%
\ntill realization.\n<\/p>\n
(vii) to direct payment of amount of group
\ninsurance.\n<\/p>\n
(vii) to award cost of these proceedings.”\n<\/p>\n
6. The contention of the respondent in the said Original
\nApplication before the Tribunal was that as at the relevant point of time,
\non investigation pursuant to the First Information Report was pending
\nresulting into filing of a charge-sheet, the petitioner was not entitled to
\ngrant of any pension. The learned Tribunal agreed with the following
\ncontention holding:-\n<\/p>\n
“In this case cognizance may be
\ntaken later but once cognizance is taken it
\nrefers back to the date on which the
\ncomplaint or report of a police officer is
\nmade. Registration of a case amounts to
\nsuch a compliant. Judicial proceedings must
\nbe held to have started by relating back to
\nthe date when the compliant was registered.
\nIn view of the above, the OA is dismissed.
\nNo costs.”\n<\/p>\n
7. The learned Tribunal, in support of the afore-mentioned
\nfinding relied upon a decision of the Apex Court in  Delhi Development
\nAuthority v. H.S. Khurana,<\/a> .\n<\/p>\n
8. Mr. G.R. Matta, the learned counsel appearing for the
\npetitioner would submit that the learned Tribunal committed an illegality
\nin so far as it failed to take into consideration that lodging of the First
\nInformation Report would not come with the purview of definition of
\n‘judicial proceeding’. According to the learned counsel, the petitioner
\nwould be deemed to have retired on 15th December 1997 and only because
\ncognizance had been taken by the court on 4th July 1998 on a First
\nInformation Report, which was lodged on 28th September 1993, the
\ndoctrine of ‘relating back’ cannot be taken recourse to. According to the
\nlearned counsel, even provisional pension had been granted on 3rd October
\n1998 and in that view of the matter, it must be held that the respondent
\nhad accepted voluntary retirement of the petitioner w.e.f. 31st March 1995.\n<\/p>\n
9. Mr. V.K. Shali, learned counsel for the respondents,
\nhowever, would submit that in the instant case, doctrine of ‘relating back’
\nwould apply.\n<\/p>\n
10. It is not dispute that the matter governed by the CCS
\n(Pension) Rules. In terms of Sub-rule (2) of Rule 5, the date on which a
\nGovernment servant retires or is retired or is discharged or is allowed to
\nresign from service, shall be treated as his last working day. However,
\nwhen a person reties on a non-working day, under Rule 56 of the
\nFundamental Rules, the date of retirement shall be treated as a non-working
\nday. Rule 7 provides for limitation. Rule 8 provides that grant of
\npension would be subject to future good conduct. Rule 8(1)(b) empowers
\nthe appointing authority to withhold or withdraw a pension or a part
\nthereof, if the petitioner is convicted of a serious crime or is found guilty
\nof grave misconduct. Sub-rule (2) of Rule 8 provides that where a
\npensioner is convicted of a serious crime by a Court of Law, action under
\nSub-rule(1) shall be taken in the light of the judgment of the court relating
\nto such conviction. Rule 9 empowers the President to withhold or
\nwithdraw pension, if the conditions precedent therefore are satisfied which
\nwould include, inter alia, that the pensioner is found guilty of grave
\nmisconduct or negligence, during the period of service in any
\ndepartmental or judicial proceedings.\n<\/p>\n
Rule 9(2) of the Pension Rules reads thus:\n<\/p>\n
 “9. Right of President to withhold or
\nwithdraw pension  <\/p>\n
 (1) xxx  <\/p>\n
 (2) (a) xxx  <\/p>\n
 (b) The departmental
\nproceedings, if not instituted while
\nto Government servant was in
\nservice, whether before his
\nretirement, or during his re-employment,–\n<\/p>\n
 (i) shall not be instituted save
\nwith the sanction of the
\nPresident.\n<\/p>\n
(ii) shall not be in respect of any
\nevent which took place more
\nthan four years before such
\ninstitution, and  <\/p>\n
(iii) shall be conducted by such
\nauthority and in such place as
\nthe President may direct and
\nin accordance with the
\nprocedure applicable to
\ndepartmental proceedings in
\nwhich an order of dismissal
\nfrom service could be made
\nin relation to the Government
\nservant during his service.”\n<\/p>\n
 11. An order in terms of the said provision, therefore, shall be
\nsubject to compliance of the provisions of Rule 992)(b) of the Rules. In
\nterms of Sub-rule (4) of Rule 9, only in case the government servant retires
\non attaining the age of superannuation or otherwise and against whom
\ndepartmental proceedings have been instituted, a provisional pension as
\nprovided in Rule 69 shall be sanctioned.\n<\/p>\n
12. Clause (b) of Sub-rule (6) of Rule 9 defines the ‘judicial
\nproceedings’ for the purpose of the said rules, in the following terms:-\n<\/p>\n
 “9.(6) For the purpose of this rule,–\n<\/p>\n
 (a) xxx  <\/p>\n
(b) judicial proceedings shall be
\ndeemed to be instituted-\n<\/p>\n
 (i) in the case of criminal
\nproceedings, on the date on
\nwhich the complaint or report
\nof a police officer, of which
\nthe Magistrate takes
\ncognizance, is made, and  <\/p>\n
(ii) in the case of civil
\nproceedings, on the date the
\nplaint is presented in the
\ncourt.”\n<\/p>\n
 13. Sub-rule (4) of Rule 9 curves out an exception thereto.
\nSuch an exception, therefore, has to be strictly construed.\n<\/p>\n
14. Provisional pension, as provided for in Rule 69 may not be
\nsanctioned unless and until, inter alia, a judicial proceedings was pending
\non the date of retirement of the concerned employee. By reason of clause\n<\/p>\n
(b) of Sub-rule (6) of Rule 9, legal fiction has been created. Criminal
\nproceedings in terms of he afore-mentioned provisions would be deemed
\nto have been instituted on the date on which a complaint or a report of a
\npolice officer of which the Magistrate takes cognizance, is made.\n<\/p>\n
15. ‘Complaint’ is defined in Section 2(d) of the Code of
\nCriminal Procedure.\n<\/p>\n
16. First Information Report is not complaint with the
\nmeaning of the said provision. Report of a police officer whereupon
\ncognizance can be taken by a Magistrate in terms of Section 190 of the
\nCode of Criminal Procedure, would be a report which is to be filed in
\nterms of Section 173 thereof.\n<\/p>\n
17. On the date on which the petitioner had retired, although a
\nFirst Information Report had been lodged, neither any complaint nor any
\nreport of the police officer on which cognizance could be taken by a
\nMagistrate, was pending.\n<\/p>\n
18. In that view of the matter, Rule 9(6)(b) in the instant case
\nwill have no application.\n<\/p>\n
19. It is now well known that a legal fiction shall not be
\nextended beyond its scope and object (See  Bengal Immunity Co. Ltd. v.
\nState of Bihar and Ors.<\/a> .\n<\/p>\n
20. In  State of Orissa and Ors. v. Kalicharan Mohapatra and Anr.,<\/a>
\n whereupon Mr. Shali has placed strong reliance, a
\nquestion arose as to whether although no proceedings had been pending
\nagainst the retiree on a charge of causing pecuniary loss to the Central or
\nState Government by negligence or misconduct during service, whether
\npension or gratuity can be withheld and in that situation the apex court
\nheld:\n<\/p>\n
  “6. It is thus clear from an
\nanalysis of Sub-rules (1) (2) that where a
\njudicial proceedings is pending against a
\npensioner for grave misconduct, the
\nGovernment is entitled to withhold gratuity
\namount and\/or death-cum-retirement
\ngratuity amount and is also entitled to
\nsanction provisional pension for the period
\nof pendency of the said proceedings. It is
\nnot necessary that a judicial proceedings
\nshould relate to the charge of causing
\npecuniary loss to the Central or State
\nGovernment by misconduct or negligence
\nduring his service. Sub-rule (1) of Rule 6
\nspecifies two grounds upon which action
\nthere under can be taken. One is where the
\npensioner is found guilty of grave
\nmisconduct and the other is where he is
\nfound to have caused pecuniary loss to the
\nCentral or State Government by misconduct
\nand negligence during his service. Sub-rule
\n(2) provides for orders to be made during the
\npendency of such proceedings. It may also
\nbe mentioned that neither the All India
\nService (Death-cum-Retirement) Rules nor
\nthe Pensions Act, General Clauses Act or the
\nLeave rules [referred to in Rule 29(2)] define
\nthe expression misconduct’. It would
\ntherefore, be reasonable and permissible to
\nunderstand the said expression in Rule 6
\naforesaid in the manner defined in the
\nPrevention of Corruption Act.”\n<\/p>\n
 21. In that case a criminal case of possession of assets
\ndisproportionate to the known source of income of the accused was
\ninstituted six months prior to his date of retirement.\n<\/p>\n
22. In  Delhi Development Authority v. H.S. Khurana<\/a> (supra),
\nthe question which arose for consideration before the apex court was as to
\nwhether on the facts and circumstances of the case, the decision of the
\nApex Court in  Union of India v. K.V. Jankiraman,<\/a> , had
\ncorrectly been applied. In that case, a preliminary memo was file don the
\nrespondent on 6th November 1985. The charge-sheet was framed on 11th
\nJuly 1990. A Departmental Promotion Committee held its meeting on 28th
\nNovember 1990. The DPC adopted the ‘sealed cover procedure’. The
\nrelevant provision which was the subject matter of decision in the factual
\nbackground of the afore-mentioned case was Clause (ii) of para 2 in the
\nOM dated September 14,1992 which was the guideline applicable at the
\nmaterial time, is as under:\n<\/p>\n
“(ii) Government servants in respect
\nof whom disciplinary proceedings are
\npending or a decision has been taken to
\ninitiate disciplinary proceedings;”\n<\/p>\n
23. The learned Tribunal, therefore, in our opinion has
\ncommitted a serious error in relying upon the said decision as the same
\nwas rendered in a different fact situation and on a different legal
\nperspective.\n<\/p>\n
24. It is not dispute that having regard to the decision of the
\nApex Court in  M.L. Malik v. Lt. Governor and Ors., 1988 (5) SLR 777, the
\nrespondent had no jurisdiction to refuse to accept the offer of voluntary
\nretirement by the petitioner. (See also  Dinish Chandra Sangma v. State of
\nAssam,<\/a> ,  B.L. Shelat v.State of Gujarat, (1978) 2 SCC 70
\nand Union of India v. Sayyad Muzzafar Mir,<\/a> 1995 Supply (1) SCC 76).\n<\/p>\n
25. In the afore-mentioned situation, as no judicial proceeding
\nwas pending against the petitioner on the date of his retirement, the
\npetitioner could not have been denied he benefit of pension. Furthermore,
\nthe provisions of pension rules being beneficent provisions, must be
\nconstrued liberally.\n<\/p>\n
26. In any event, in the event the petitioner is convicted,
\nappropriate action in terms of the pension rules can be taken against him.
\nWe, therefore, are of the opinion that the impugned judgment of the
\nTribunal cannot be sustained, which is set aside accordingly.\n<\/p>\n
The writ petition is allowed with no orders as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Anand Sarup Guar vs Chief Secretary, Govt. Of Nct Of … on 31 May, 2002 Author: S Sinha Bench: S Sinha, A Sikri 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-241168","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAnand Sarup Guar vs Chief Secretary, Govt. 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