GHULAM RASOOL SHEIKH Vs. STATE OF J&K

JUDGEMENT

(1.) Briefly stated, the facts of the case are that in the month of February, 1999, one Ghulam Ahmad Pir, who was arrested in connection with investigation into FIR No.139 of 1998 of Police Station, Trehgam died in custody. Thereupon proceedings under Section 174 Cr. P.C., 1973 were initiated regarding the death of said Ghulam Ahmad Pir. Subsequently, vide Govt. Order No.315-GAT of 1999 dated 05.03.1999, Mr. Mohamad Shafi Rather was appointed as Enquiry Officer, who after concluding the enquiry recommended investigation of the case by the Crime Branch. On the basis of the recommendation of the Enquiry Officer, FIR No.5/2000 was registered at Police Station Crime Branch, Srinagar under Sections 302/34 RPC. During investigation, petitioner was arrested on 16th August, 2004 and the other accused were arrested on 10th of August, 2004.

(2.) Consequent upon the arrest of the petitioner in the above said FIR, he was placed under suspension and the investigation into the aforesaid FIR culminated into presentation of Final Police Report in the competent Court of law against the petitioner and other. The petitioner submits that while he was under suspension, he was being paid the subsistence allowance which was paid to him till the petitioner attained the age of superannuation and vide order No.234 of 2008 dated 17.07.2008 he was superannuated from service w.e.f. 30.09.2008. The criminal case was ultimately decided vide judgment dated 24.03.2015 whereby the petitioner along with other accused have been acquitted of all the charges as the prosecution could not prove the guilt beyond any reasonable doubt. The petitioner submits that the pensionary benefits have not been released in favour of the petitioner including the benefits of 6th pay commission and only provisional pension was sanctioned in favour of the petitioner. Petitioner contends that time and again he approached the respondents after earning acquittal for release of full pensionary benefits as well as arrears of pay etc., but the respondents have declined the request on the plea that they have preferred acquittal appeal against the order of the Session Judge, Kupwara. The appeal is stated to be pending before this Court but the judgment under appeal has not been stayed nor any adverse order has been passed therein so far. Petitioner contends that pendency of a criminal case or departmental enquiry is not a bar for release of pensionary benefits as the pension in terms of Article 300-A of the Constitution of India is a property and same cannot be withheld except in strict adherence to law. Aggrieved of non-release of pensionary and other benefits, petitioner has filed the instant writ petition.

(3.) The respondents in their objections have stated that the petitioner was superannuated from service on 30.09.2008 (under suspension) and was never reinstated into service. The petitioner was facing charges of a custodial killing of one person namely, Gh. Ahmad Peer, pursuant to which a departmental enquiry was, conducted which culminated into registration of FIR and finally challan was presented. It was further stated that the petitioner was involved in a grave and heinous case, therefore, was not entitled to the benefits of 6th pay commission along with arrears as per the rules governing the field. Respondents submits that though vide judgment dated 24.03.2015, petitioner was acquitted of the charges, however, it was left open to the competent authority to further investigate the case. Therefore, acquittal on doubtful grounds cannot make the petitioner entitled for the benefits which otherwise any honest and dedicated employee alone is entitled to. Respondents' further contention is that till outcome of the criminal acquittal appeal, which is pending in this Court, petitioner is not entitled to any benefits including 6th pay commission, salary, GP fund etc. and should feel satisfied with the provisional pension already sanctioned.