NURUL ISLAM Vs. STATE OF ASSAM

JUDGEMENT

(1.) Aggrieved by the withholding of his pension, the petitioner is filing this writ petition for appropriate relief. The petitioner was serving as Project Officer of Char Development Project under the Department of Agriculture, Government of Assam till 30.9.2011 when he retired from service on attaining the age superannuation. On 13.3.2012, he submitted his pension papers to the respondent No. 3 (Director of Agriculture, Assam), who then forwarded the same to the respondent No. 1 (Secretary to the Government, Agriculture Department, Assam). Simultaneously, he also applied for payment of provisional pension, which was granted with effect from 1.10.2012. At this stage, it may be noticed that the petitioner had been sent on deputation to the District Rural Development Agency, Kamrup during the period commencing from 16.9.1997 to 12.1.2004 as Assistant Project Officer (Agriculture). During this period, certain irregularities were alleged to have been found with respect to procurement of UV film for construction of low cost green house-cum-rain shelter, which eventualities became known as "Green House Scam". Before finalising his pension claim, the respondent No. 1 on 27.8.2012 sought for information from the Secretary, Political (Vigilance Cell) Department as to whether there is any vigilance case pending or contemplated against some officers including the petitioner and whether any of such officers are being charge-sheeted or not The Deputy Secretary, Political (Vigilance Cell) Department on 1.11.2012 informed the respondent No. 1 that 14 officers including the petitioner are involved in Vigilance P.S. Case No. 2/2004 and have been charge-sheeted vide C.S. No. 08/12 dated 30.03.2012. However, the petitioner was not aware of these correspondences, and has all along been expecting that the pension papers already submitted as early as 30.9.2011 would be finalized. When his pension was not released even after inordinate delay, he on 15.3.2013 submitted a representation before the respondent No. 1 for early release of his pension. When no response to his representation was forthcoming, he on 26.6.2013 filed an application under the Right to Information Act, 2005 seeking information, inter alia, the reason for the delay in releasing his pension claim. Ultimately, the SPIO & Joint Secretary, Agriculture Department vide his reply letter dated 23.7.2013 informed him that the delay in releasing his pension had been occasioned by his involvement in the said vigilance case.

(2.) It would appear that the petitioner thereafter made several representations to the respondent authorities claiming his innocence and for early release of his pension, but to no avail, but the respondents held their ground and refused to do so. Though a number of contentions have also been raised by the petitioner challenging the validity of the vigilance case pending against him, I do not propose to deal with these contentions. In my opinion, the only question which falls for consideration in this writ petition at this stage is whether the respondents have legal justification for withholding the pension, which is otherwise entitled to him under the law once he has retired from service on superannuation. There is no dispute at the bar that the said vigilance case arose out of Dispur P.S. Case No. 567/2002 U/s. 420/468/471/109/120B IPC r/w Section 3(3) of Benami Transaction (P) Act and Section 13(1)(a)(ii)/13(2) of the Prevention of Corruption Act, 1988, which was charge-sheeted only in 2012. In other words, the vigilance case pending against the petitioner admittedly arose out of the incident/irregularities which had taken place prior to 2002. The petitioner had retired from service on superannuation on 30.9.2011. The law relating payment of pension to a retired employee in Assam is regulated and governed by the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969, which are reproduced below:

(3.) A plain reading of Rule 21 of the Assam Service (Pension) Rules, 1964, makes it abundantly clear that the authority has a right to withhold or withdraw a pension or any part of it permanently or for a specified period, if the pensioner was found guilty of grave misconduct or negligent or negligent during the period of his service. However, for withholding pension, it would be necessary to draw a departmental proceeding or a judicial proceeding against the delinquent. Such departmental proceeding/judicial proceeding may be instituted while the pensioner was in service or while he was re-employed. The departmental proceeding may also be initiated against the pensioner even after his retirement under clause (b) of Rule 21 provided the sanction of the Government of Assam had been obtained to do so. However, such departmental proceedings cannot be taken with respect to any event which had occurred more than four years before such institution. Similarly, such judicial proceeding must be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution. The term "judicial proceeding" comprises of criminal proceeding and judicial proceeding. In the case at hand, we are concerned with a criminal proceeding. A criminal proceeding is deemed to be instituted on the date on which a complaint or report of a police officer on the basis whereof cognizance is taken by the Magistrate. Moreover, the proceedings may be conducted only by such authority and at such place as the Governor of Assam may direct in that behalf. It also requires that the Public Service Commission shall be consulted before orders are passed.