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2014 DIGILAW 137 (JK)

Mohd. Amin Makhdoomi v. State Of J&K

2014-03-27

BANSI LAL BHAT

body2014
1. The petitioner, serving as Lecturer in Jammu and Kashmir Education Department, was placed under suspension in terms of Order No. 2618-DSEK of 2001 dated 09.10.2001, by respondent No. 2. It is stated that the petitioner retired from service on 29.02.2008 on attaining the age of superannuation and accordingly provisional pension was sanctioned in his favour by respondent No. 4. However, no retiral benefits viz gratuity, leave salary, general provident fund and commutation pension was sanctioned in his favour, in view of the fact that a case under FIR No. 26/2001 of Police Station, Crime Branch, Srinagar, had been registered against him. Investigations were conducted which culminated in filing of charge sheet before the competent court for judicial determination and the petitioner is facing trial in the case. 2. The petitioner is aggrieved of withholding of his post retiral benefits which include gratuity, G.P. Fund, leave salary etc. and has prayed that his order of suspension be quashed and treat the period of his suspension as on duty by exonerating him from the alleged allegations leveled against him. 3. Writ petition came up for consideration and in terms of order dated 06.11.2009; notice was issued to the respondents for filing the objections. 4. Respondents have filed the objections and contested the averments made in the writ petition. Respondent No. 4 in his reply has averred that since the petitioner attained the age of superannuation on 29.02.2008, he was granted the provisional pension of Rs.4838/- on the basis of pension case forwarded by respondent No. 3. Therefore, it is stated that they have done their part as was required of them. Respondents 1 to 3 in their reply have averred that the petitioner is involved in a case registered under FIR No. 26/2001, Police Station, Crime Branch, Srinagar and during the course of investigation 3 written and blank service books, 15 blank answer books and fake certificates were recovered from his possession. It is further averred that the petitioner was found involved in fabrication of records and fake appointment of teachers in district Anantnag. It is further averred that the petitioner was placed under suspension and he retired from service during the suspension period. Provisional pension has been sanctioned in favour of the petitioner and his pension case stands settled under PPO No. 1193 and the gratuity / commutation has also been settled. It is further averred that the petitioner was placed under suspension and he retired from service during the suspension period. Provisional pension has been sanctioned in favour of the petitioner and his pension case stands settled under PPO No. 1193 and the gratuity / commutation has also been settled. However, it is averred that petitioner's leave salary and other service benefits could not be settled because he was not reinstated before his retirement and was found involved in the FIR supra. It is further pleaded that unless and until criminal proceedings pending against the petitioner come to an end, it is not possible for the respondents 1 to 3 to settle his claim and it can be settled only in the light of the judgement of the criminal Court. 5. I have heard learned counsel for the parties. Writ petition is admitted to hearing. In the given facts and in view of the above said reasons, I deem it proper to take the writ petition for final disposal at this very stage to which course the learned counsel for the parties have no objection. 6. It is argued on behalf of the petitioner that he has been placed under suspension on 09.10.2001 and the department has not conducted any enquiry against him with regard to his involvement in the criminal case registered under FIR No. 26/2001. It is further argued that since no inquiry officer was appointed to hold inquiry against the petitioner, he shall be deemed to have retired from service without facing any inquiry though the respondents failed to pass an express order of exonerating him of the allegations. Justifying the argument, the learned counsel stated that the petitioner cannot be deprived of any pensionary and service benefits. 7. Per contra, learned counsel for respondents 1 to 3 submitted that since the criminal trial is going on, the petitioner is not entitled to the relief claimed until he is acquitted of the charges framed against him. 8. Admittedly, the petitioner was placed under suspension in terms of order No. 618-DSEK of 2001 dated 09.10.2001, on the basis of a communication dated 25.09.2001, received from the SSP Crime Branch, Srinagar, wherein it was stated that the petitioner was directly involved for the offences registered under FIR No. 26/2001. 8. Admittedly, the petitioner was placed under suspension in terms of order No. 618-DSEK of 2001 dated 09.10.2001, on the basis of a communication dated 25.09.2001, received from the SSP Crime Branch, Srinagar, wherein it was stated that the petitioner was directly involved for the offences registered under FIR No. 26/2001. It is also admitted that the investigation of the case has culminated in filing of charge sheet against the petitioner which is pending determination before the competent Court of jurisdiction. It is not in controversy that the petitioner has retired from service during the period of suspension. It is also not denied that no departmental enquiry is pending against the petitioner and the trial is yet to be brought to its logical conclusion. It is also not disputed that the petitioner was not reinstated in service before demitting the office upon attaining the age of superannuation. It is also not disputed that his post retiral benefits like leave salary, G.P. Fund etcetera remains to be unsettled and is being paid the provisional pension only pending disposal of the criminal case. 9. The core question involved in the writ petition is as to whether the State Government can withhold a part of pension or gratuity during the pendency of departmental / criminal proceedings. 10. A similar question came up for consideration before their Lordships of the apex Court in State of Jharkhand and others v. Jitendra Kumar Srivastava and another reported in AIR 2013 SC 3383 has held that a person cannot be deprived of the pension without the authority of law, which is constitutional mandate enshrined in Article 300 A of the Constitution. It is relevant to extract the exact lines of the paragraph 14 of the judgement, which reads hereunder: "14. .....A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced." 11. It is seen that in the present case the petitioner was placed under suspension not pending any departmental inquiry but because he had remained under arrest for more than 48 hours. It is seen that in the present case the petitioner was placed under suspension not pending any departmental inquiry but because he had remained under arrest for more than 48 hours. Therefore, it is a case where no departmental inquiry was at all contemplated against the petitioner in terms of the relevant provisions of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. As a necessary corollary, it was incumbent upon the concerned respondents to review the suspension of the petitioner in terms of the rules governing the field. 12. Law is no more res Integra that pension and gratuity of an employee are not bounties. These are service benefits earned by an employee by dint of his service. The pension is a hard earned benefit accruing to an employee. It is in the nature of a property, right of which cannot be taken away without due process of law as enshrined under Article 300 A of the Constitution of India. Under service rules, the Government can withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct, either in the departmental proceedings or in the judicial proceedings. However, such power cannot be exercised when such departmental or judicial proceedings are pending. Likewise, leave encashment cannot be withheld irrespective of result of departmental or judicial proceedings. Needless to emphasize that the power to withhold pension or any part of it and other service benefits like leave encashment cannot be invoked before the employee is found guilty after conclusion of such proceedings. 13. Now in the instant case, what can be gathered from the record is that no departmental enquiry is pending against the petitioner nor it is borne out from the reply filed by the respondents. Moreso, the judicial proceedings are still underway. Thus, the petitioner has not been found guilty of misconduct, muchless a grave misconduct or breach of penal law. That being the position, the service benefits like the pension, gratuity and G.P. Fund etc. cannot be withheld. 14. Moreso, the judicial proceedings are still underway. Thus, the petitioner has not been found guilty of misconduct, muchless a grave misconduct or breach of penal law. That being the position, the service benefits like the pension, gratuity and G.P. Fund etc. cannot be withheld. 14. It is next contended by learned counsel for the petitioner that the suspension order having been passed more than 12 years before with no departmental inquiry pending against the petitioner and criminal proceedings not having been brought to its logical end, the petitioner has been visited with evil consequences as suspension order is turned out to be punitive in nature. It is submitted that the suspension order under the circumstances of the case is deemed to have outlived its utility and the petitioner be deemed to have been exonerated of the allegations which formed the bedrock of the suspension order. 15. Learned counsel for the petitioner has placed reliance on the judgement of this Court in Kishander Singh and others v. State ofJ&K and others reported in 2013 [4] JKJ 623 [HC], which lays down that by withholding of post retiral benefits like the gratuity, leave salary etc. right to livelihood is affected which is an integral part of right to life guaranteed under Article 21 of the Constitution of India and a Government servant under suspension facing inquiry or trial has a right to insist on expeditious conclusion of departmental or criminal proceedings. His Lordship has further gone to say that where the enquiry or trial gets unreasonably delayed and does not witness any progress, his right to timely justice again a part of fundamental right guaranteed under Article 21 is infringed. It would be advantageous to reproduce paragraph 23 of the judgement, which reads as under: "23. From the above discussion, legal proposition that emerges is that suspension order allowed to continue beyond a reasonable period `without periodic review and in violation of spirit and mandate of Rule 31 J&K (Classification, Control and Appeal) Rules, 1- 956 because of delay in finalization/conclusion of departmental enquiry or the criminal trial for the reasons not attributable to the government employee, would be violative of constitutional mandate spelt out in preamble to the constitution and also Article 21 Constitution of India. It is to be realized that revocation of suspension does not mean that the government employee facing a criminal charge or allegation of misconduct is absolved of the charge or allegation with the revocation of suspension. He is still to be visited with punishment or sentence, in the event, charge or allegation is proved. The revocation of suspension after reasonable time only excludes chance of a suspended employee living with bitterness and a sense of having been wronged due to long suspension, after he is acquitted of the charge or the allegation of misconduct is found without substance. In the circumstances, the suspension cannot be allowed to operate after a reasonable period. What would be "reasonable period" for the suspension to survive because of pendency of departmental proceedings or criminal trial, where after it should be held to have outlived its life, depends on facts and circumstances of a case. However, having regard to the average period of pendency of a criminal trial/ departmental proceedings, the suspension order may very well be held to lose its force after five years from the effective date of suspension - where the government servant continues to be a member of service, unless extended on review, irrespective of the conclusion/ termination of departmental proceedings or criminal trial, and with the retirement on superannuation where the government servant during pendency of departmental proceedings/criminal trial retires on superannuation. The competent authority would, therefore, be under an obligation to revoke the suspension order subject to such terms and conditions as it deems fit to secure the interest of the government/public exchequer. Once the departmental proceedings/criminal trial is not concluded during five years, after the suspension order was made and suspension has not been reviewed and extended on the basis of such review by an express order, government servant would, be deemed to have been reinstated and the competent authority duty bound to assign him work." 16. In view of the facts of the present case narrated above and in light of the dictum of law laid down by the judgments supra, this writ petition is allowed with a direction to the respondents that the suspension order of petitioner shall be deemed to have been revoked and petitioner shall be deemed to have been reinstated when the petitioner retired on attaining the age of superannuation on 29.02.2008. As a corollary, his post retiral benefits, which have not been settled and released in his favour as yet, shall be settled and released forthwith without linking him with the fate of criminal proceedings lodged against him. It goes without saying that disposal of the present writ petition shall not have any bearing on the determination of criminal liability of the petitioner by the competent Court. 17. Disposed of alongwith CMP.