PUSHPA RANI Vs. STATE OF HARYANA

JUDGEMENT

(1.) The grievance which has been raised in the present writ petition by the petitioner is that her pensionary benefits (except the payment of the provisional pension) have been withheld by the respondents due to pendency of an FIR No. 393 dated 06.06.2011, which act of the respondents is contrary to the settled principle of law as the retiral benefits have been withheld only on the basis of the registration of an FIR, wherein no challan has been filed even upto now. As per the facts mentioned in the writ petition, petitioner was appointed as a Home Science Mistress on 09.08.1982 on ad-hoc basis and thereafter, her services were regularized on 01.11.1986. Petitioner thereafter promoted as a Lecturer on 10.12.1991. While the petitioner was in service, an FIR No. 393 dated 06.06.2011 was registered against her at Police Station Gurugram City under sections 420, 467, 468, 471 and 409 of the Indian Penal Code, 1860. After enquiring into the allegation, untrace/closure report was submitted by the police under section 173 Cr.P.C. to the concerned Magistrate on 09.08.2014. The said untrace report was not accepted by the Illaqa Magistrate and the case was ordered to be further investigated. In the meantime, petitioner retired from the post of Lecturer on attaining the age of superannuation on 30.04.2017. After the retirement, petitioner has not been paid any of her retiral benefits except the provisional pension. The said provisional pension was also started from December, 2017 and not from the date when the petitioner superannuated i.e. on 30.04.2017. The prayer of the petitioner is for the release of all the pensionary benefits, which the respondents have withheld on account of the pendency of the FIR No. 393 dated 06.06.2011 alongwith arrears and interest thereupon. Upon notice of motion, respondents have filed the reply, in which, it has been admitted by the respondents that the untrace report was filed on 09.08.2014, which was returned by the Illaqa Magistrate for further investigation and no report has been submitted by the police thereafter. It has been further stated in the reply that on 09.01.2018, ASI Naresh Kumar had appeared before the Court of Chief Judicial Magistrate, Gurugram and gave a short report stating that closure report has been prepared again but the same was yet to be submitted in the Court. The respondents have justified their action in withholding the pensionary benefits of the petitioner on the ground that the criminal case is pending against the petitioner in the form of FIR No. 393 dated 06.06.2011. In order to justify the action of withholding the pensionary benefits, respondents are relying upon Rule 69 of the Haryana Civil Services (Leave) Rules, 2016 (hereinafter referred to as '2016 Rules') to contend that where disciplinary or criminal proceedings are pending against an employee at the time of retirement, the benefit of leave encashment and other retiral benefits can be withheld. An additional affidavit has been filed by the respondents today in Court, in which, it has again been reiterated by the respondents that no charges have been framed so far against the petitioner in FIR No. 393 dated 06.06.2011. In the said affidavit, the respondents have again relied upon 2016 Rules and in addition have been have mentioned Rule 12 (3) of 2016 Rules to contend that where the departmental or judicial proceedings are pending against an employee, only provisional pension is to be paid. Learned counsel for the respondents after seeking instructions from SI Nity Anand, who is present in Court, very fairly submitted that the matter is still pending for further investigation with the police and no challan has been submitted against the petitioner so far. I have heard learned counsel for the parties and have gone through the record with their able assistance. The only question which arises for consideration before this Court is as to whether any criminal proceedings pending against the petitioner, which would entitle the respondents to withhold the pensionary benefits keeping in view the rules governing the service as well as settled principle of law. As per the facts, which have been recorded in the preceding paragraph, though the FIR No. 393 dated 06.06.2011 is still pending but the police had submitted a closure report on 09.08.2014 initially and thereafter, had again prepared a closure report dated 09.01.2018, which is yet to be submitted. This shows that no involvement of the petitioner has been found during the investigation in respect of the allegations which have been alleged against the petitioner so far in respect of FIR No. 393 dated 06.06.2011. As the closure report is being submitted by the police, no charges have been framed against the petitioner so far. Mere pendency of an FIR against an employee cannot be treated as criminal proceeding so as to entitle the respondents to withhold the pensionary benefits. In Union of India Vs. K.V. Jankiraman, 1991(3) S.C.T. 317, a Full Bench of Hon'ble Supreme Court of India gave the guidelines as to when the proceedings against an employee can be termed to be pending in respect of disciplinary proceedings as well as in respect of the criminal proceedings. Hon'ble Supreme Court of India has held that where a charge-sheet has been served upon an employee in the departmental proceedings, the disciplinary proceedings are to be treated as pending against an employee and where, a challan has been presented against a person in the criminal proceedings, the criminal proceedings are to be treated as pending against the said person. The relevant paragraph of the judgment in K.V. Jankiraman's case (supra) is as under :-

(2.) In the present case, the respondents are contending that there are criminal proceedings pending against the petitioner in the shape of FIR No. 393 dated 06.06.2011, hence, withholding of pensionary benefits of the petitioner is within their jurisdiction. The said assertion of the respondents is contrary to the settled principle of law settled by a full Bench of Hon'ble Supreme Court of India in K.V. Jankiraman's case (supra). Once the challan has not been put up against the petitioner in the said FIR till date of her retirement, it cannot be said that the criminal proceedings are pending against her on the date of her retirement so as to entitle the respondents to withhold her pensionary benefits. Even as of today, there is no challan submitted by the competent authority duly accepted by the Judicial Magistrate, so as to treat the said FIR No. 393 dated 06.06.2011 as criminal proceedings pending against the petitioner. The same view has been reiterated by this Court more than on 09.03.2015 titled as Sarup Singh Vs. State of Punjab and others, has held that where a cancellation report has been submitted but the Magistrate is yet to take the cognizance of the same and there are no charges which have been framed against a person after due application of mind, it cannot be said that any criminal proceeding is pending against the said employee. The Division Bench in Sarup Singh's case (supra) held that the pensionary benefits of an employee can only be withheld in case the charges have been framed in the judicial proceedings. The relevant paragraphs of the said judgment are as under:-

(3.) In the present case also, no charges have been framed against the petitioner in respect of the FIR No. 393 dated 06.06.2011 even upto now and rather, the untrace report was submitted as far back as the year 2014 i.e. much before the retirement of the petitioner and a second closure report has already been prepared to be submitted, it cannot be said that criminal proceedings are pending against the petitioner. Therefore, keeping in view the settled principle of law noticed above, it cannot be said that any criminal/judicial proceedings are pending against the petitioner so as to entitle the respondents to withhold the pensionary benefits of the petitioner even under 2016 Rules. Even otherwise, it is a settled principle of law that position is to be seen on the date of retirement. On the date of retirement, there were no charges framed against the petitioner in respect of the FIR No. 393 dated 06.06.2011. The respondents have exceeded their jurisdiction in withholding the pensionary benefits of the petitioner by totally overlooking the settled principle of law, where pendency of criminal/judicial proceedings has been explained. It has been clarified/held more than once by the Competent Court of Law that mere registration of an FIR against a person will not be termed as the pendency of the criminal judicial proceedings unless before the retirement, the charges are framed against the said employee in those proceedings, which is being taken as a ground for withholding the retiral benefits. Petitioner has been harassed for more than 2 years as without there being any jurisdiction, the respondents have withheld her pensionary benefits. In view of the above, the action of the respondents in withholding the pensionary benefits of the petitioner on the ground that criminal proceeding is pending against the petitioner is held to be bad and without any jurisdiction. In the facts and circumstances of the present case, respondents are directed to release all the pensionary benefits of the petitioner alongwith arrears. Learned counsel for the petitioner argues that as the respondents have ignored the settled principle of law settled by a Full Bench of Hon'ble Supreme Court of India in K.V. Jankiraman's case (supra), which was laid down as far back as August 1991 and withheld the pensionary benefits and this illegal action has caused prejudice to the petitioner hence, petitioner is entitled for the release of the pensionary benefits alongwith interest. Learned counsel for the respondents raises objection to the grant of interest to the petitioner on the ground that respondents were under genuine belief that during the pendency of an FIR, pensionary benefits of an employee can be withheld. I find force in the claim of the petitioner for the grant of interest for the reason that without any application of mind, the respondents withheld the pensionary benefits of the petitioner, which is the only source for survival of a retired employee to lead a dignified life. In case pensionary benefits of an employee are withheld without any jurisdiction, the employee suffers a lot, not only financially but physically and mentally as well.