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2004 DIGILAW 271 (JK)

Lakshmi Rani Baloria v. State

2004-09-29

Y.P.NARGOTRA

body2004
The husband of the petitioner was an employee of J&K Animal Husbandry department. He was working as Veterinary Assistant Surgeon. He was placed under suspension vide Govt. order No. 251-ASH of 1991 dated 1st of October 1991, for the reason that a case under FIR No. 9/82-2292 under Section 5 (2) of Jammu and Kashmir Prevention of Corruption Act read with Sections 409/120-B of RPC stood registered against him. The said FIR came to be investigated and challan was filed for trial of the accused along with another accused namely Kulwant Singh for commission of the said offences. During the trial, the petitioners husband reached at the age of superannuation on 30.9.1997. The petitioner submits that whatever was due to the Government for which the case stood registered was received from the Banks and deposited into Govt. Treasury except an amount of Rs. 68.87.P. which was lying with the United Commercial Bank, Rohtak. The copy of the communication dated 21.04.2004 issued by Director Animal Husbandry Department Jammu addressed to the petitioner reads as follows:- "No. DAJH/E-70/91 Dated 21.4.04 Subject:-- State v. Janak Singh Balouria(Deceased) ad Dr. Kulwant Singh decided on 20..9. With reference to your letter-dated 21.4.2004, it is intimated that the amount mentioned below has been received from the banks indicated against each and deposited into Govt. treasury Talab Tillo, Jammu. S.No. Name of the bank Cash Order No. Amount 1 Punjab National Bank, Bari Brahamana, Jammu No. SKJ-529684 dt.19.7.03 Rs. 223161.61.p 2 Punjab National Bank Gangyal No. 182709 dt.7.5.2003 Rs. 2410.10.p However, an amount of Rs.68.87p. due from United Commercial Bank, Rohtak has not been received so far. It is further made clear that the aforesaid amount was Govt.money which was deposited by the deceased Dr.Janak Singh Balouria in the Banks and the special Judge Anti Corruption, Jammu has ordered the amount to be frozen on 24.11.82 which was later on released Special Judge, Anti Corruption, Jammu and stands deposited into Govt. Treasury, Jammu." While the trial was in progress the petitioners husband Janak Singh Baloria expired on 24.10.1999 in P.G.I Chandigarh while undergoing treatment. Consequently, upon the death of the petitioners husband Learned Special Judge, Anti Corruption Jammu by his order dated 12.11.1999 held that the proceedings against the petitioners husband would abate. Treasury, Jammu." While the trial was in progress the petitioners husband Janak Singh Baloria expired on 24.10.1999 in P.G.I Chandigarh while undergoing treatment. Consequently, upon the death of the petitioners husband Learned Special Judge, Anti Corruption Jammu by his order dated 12.11.1999 held that the proceedings against the petitioners husband would abate. After retirement the petitioners husband was granted provisional pension and after his death petitioner was granted family pension vide Family Pension payment order No. 20269 dated 19.05.2000.However, the petitioner was not granted the pay and emoluments as well as the retiral benefits which were due to be paid to the petitioners husband as per Govt. Instruction No. 2 appended to Article 168-D of Civil Service Regulations. The stand of the respondents is that when the petitioners husband was under suspension and was facing trial he was not entitled to the release of the emoluments and after his retirement to the release of retiral benefits in toto. It is submitted that after the death of the petitioners husband he cannot be treated to have been exonerated from the charges so as to become entitled to full emoluments as well as full retiral benefits. I have heard learned counsel for the parties. Mrs.Sharma, learned counsel for the petitioner submits that husband of the petitioner under law is deemed to have been exonerated from all the charges because he died before the conclusion of the trial of the case and therefore period of suspension was required to be treated as period having spent on duty. Therefore, death-cum-retirement gratuity and the arrears pay/cash in lieu of leave salary and increase in pension were required to be released in full in favour of the petitioner. In support she refers to Govt. Therefore, death-cum-retirement gratuity and the arrears pay/cash in lieu of leave salary and increase in pension were required to be released in full in favour of the petitioner. In support she refers to Govt. Instructions No. 2 appended to Article 168-D of the Civil Services Regulations Volume I. Article 168-D (1) provides that: "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 of 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 preceding 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." Sub rule 2 of Article 168-D provides that: "Payment of provisional pension made under clause (1) above shall be adjusted against the final retirement benefits sanctioned to such officer 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." In the present case, the husband of the petitioner was under suspension. He was facing trial. During the period of his suspension as well as period of the trial, he retired from service and therefore in terms of Article 168-D (1) he was granted provisional pension. Admittedly, the husband of the petitioner expired during the trial what could be the effect of his death is covered by the Govt. Instructions No. 2 read with F.D Notification SRO 188 of 1981 dated 12th of May 1981 which reads as follows:-- "Government Instruction No. 2. Admittedly, the husband of the petitioner expired during the trial what could be the effect of his death is covered by the Govt. Instructions No. 2 read with F.D Notification SRO 188 of 1981 dated 12th of May 1981 which reads as follows:-- "Government Instruction No. 2. Where a retired Government servant who is in receipt of provisional pension dies before the conclusion of the departmental/judicial proceeding instituted against him he should be treated as if exonerated of all charges leveled against him, and the period of suspension, if any preceding his retirement shall be treated as period spent on duty, and Death-cum-Retirement Gratuity and the arrears pay/cash in lieu of leave salary or increase in pension as a result of treating the period of suspension as duty or any other benefit if any due, shall be released in full, in the same manner in which it would have been granted had the person retired in the normal course without there having been any departmental/judicial proceeding instituted against him." The husband of the petitioner in the present case is thus to be treated to have been exonerated from all the charges leveled against him for the reason that he had died before the conclusion of the trial of the case and this apart even the amount due from the petitioners husband stands already received except an amount of Rs. 68.87 p. The husband of the petitioner was getting provisional pension after having been retired. When the trial of the case was in progress, he was under suspension. In view of the facts of the case the petitioners husband being squarely covered by Govt. Instruction No. 2, his period of suspension is required to be treated as period spent on duty. He is also deemed to have been exonerated from all the charges and therefore he was entitled to the release of death-cum-retirement gratuity, arrears of pay, cash in lieu of leave salary and increase in pension in full by deeming that he retired in the normal course without there being any departmental/judicial proceeding instituted against him. Despite the clear entitlement of the petitioner, to the pay and emoluments, retiral benefits and all monetary benefits of her husband the same have not been released by the respondents. The learned counsel for the respondents has not been able to justify the withholding of the said benefits of the petitioners husband. Despite the clear entitlement of the petitioner, to the pay and emoluments, retiral benefits and all monetary benefits of her husband the same have not been released by the respondents. The learned counsel for the respondents has not been able to justify the withholding of the said benefits of the petitioners husband. In this view of the matter, writ petition of the petitioner is allowed and respondents are directed to release all the retiral benefits including the arrears of pay, cash in lieu of leave salary and other monetary benefits in favour of the petitioner within a period of two months along with interest at the rate of 8% from the date this amount became due to the petitioner. Family pension shall also be re-fixed and released in favour of the petitioner. For computing the arrears of pension, amount paid on account of provisional pension shall however be adjusted. Writ petition disposed of as such.