STATE OF J&K Vs. KULWANT SINGH

JUDGEMENT

(1.) THE writ petitioner, respondent herein, a retiree of 1982 invoked the extra ordinary jurisdiction of the writ court for payment of interest on the delayed disbursement of gratuity. Writ petition came to be allowed by judgement dated 07 -10 -2002 requiring the respondents, appellants herein to pay interest @ 12% on withheld gratuity within a period of two months failing which further interest @ 6% shall be payable by the officers responsible for the delay. Being aggrieved, the judgement is questioned by medium of this LPA on the ground that during the pendency of judicial proceeding the appellants could not make the payment because such course is not permissible under rules. To substantiate the contention reliance is placed by Mr. Salathia on article 168 -D of the "J&K Civil Service Regulations 1956" (for short CSR), which may be noticed: "168 -D(1) Where any departmental or judicial proceeding is instituted under Art. 168 -A or where departmental proceeding is continued under clause (a) of proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under suspension on the date of retirement, up to the date immediately proceeding 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 proceeding and the issue of final orders thereof. (2) Payment of provisional pension made under clause (1) above shall be adjusted against the final retirement benefits sanctioned to such officers upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced, withheld either permanently or for a specified period."

(2.) THE provision aforementioned makes it obligatory upon the Government not to release the Death -cum -Retirement gratuity in favour of an officer against whom a departmental or judicial proceeding is instituted until the proceeding is concluded by issuance of a final order. To appreciate scope of the prohibition within the contours of article 168 -A CSR, same is extracted: "168 -A. The Government reserves to itself the right to order the recovery from the pension of an officer of any amount on account of losses found in judicial or Departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service provided that - (a) such Departmental proceedings if not instituted while the officer was on duty - (i) shall not be instituted save with the sanction of Government; (ii) shall be instituted before the officers retirement from service or within a year from the date on which he was last on duty, whichever is later ; (iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty ; and (iv) shall be conducted by such authority and in such places as the Government may direct ; (b) all such departmental proceedings shall be conducted if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and (c) such judicial proceedings if not instituted while the officer was on duty, shall have been instituted in accordance with the sub -clauses (ii) and (iii) of clause (a) above.

(3.) UNDERSTANDING sub -clause (iii) clause (a) read with clause (c) of Article 168 -A CSR from its grammatical meaning inter alia it is deducible that withholding of gratuity of a retired officer is permissible during the currency of judicial proceeding if the proceeding relates to an event which has occurred within one year preceding the date on which the officer was last on duty. Whether judicial proceeding has commenced within the period so prescribed is a question which is required to be examined in the light of the year the event relates to and the date on which respondent was superannuated. As is seen from pleadings of the parties it is crystal clear that the event which was the subject matter of the judicial proceeding dates back to 1979 -80 whereas date of respondents superannuation is 31 -05 -1982. Reckoned as such there is a gap of one year and five months between the occurrence of the event and the date on which respondent was last on duty, apparently beyond the period stipulated by article 168 -A CSR, resultantly violation of its mandate, rendering the action of the Government illegal which is sufficient for allowing the interest to the respondent on withheld gratuity leaving no option for us but to agree with the conclusion arrived at by the Learned Single Judge. We may hasten to add that since we are not called upon in this case to examine the fall out of prosecution instituted beyond the period envisaged by article 168 -A CSR or to examine the scope of the powers of the Government regarding the recoveries of outstanding from a retiree or to interpret expression 'judicial proceeding or to examine amplitude of the term 'judicial proceeding as to when it can be said to have commenced, we, therefore, make it clear that interpretation of the article above should not be misunderstood by deriving any conclusions by implication excepting the one we have expressly laid down that in case a judicial proceeding is not instituted within the time limit prescribed by sub clause (iii) clause (a) of article 168 -A CSR, the gratuity of a retiree cannot be withheld by taking recourse to article 240 -G CSR notwithstanding the commencement and pendency of a judicial proceeding instituted beyond the period stipulated therein.