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2014 DIGILAW 3173 (MAD)

M. K. Palaniappan v. Tahsildar

2014-09-08

D.HARIPARANTHAMAN

body2014
Judgment 1. The petitioner joined the service as Village Administrative Officer on 26.04.1984. He worked as Village Administrative Office at Alukkuli village for the period from 14.06.2000 to 30.06.2002. The secretary of Primary Agriculture Co-operative Bank, Alukkuli fraudulently prepared false land holding certificate to one Thiru.Venkateswaran, who actually does not have any land and thereby, cheated the Primary Agricultural Co-operative Bank. The above said fraudulent act took place with the conspiracy and assistance of the petitioner, according to the respondents. Due to that, the Government have incurred pecuniary loss of Rs.40,220/-. 2. A case was registered in Crime No.17/2004 under Sections 408, 409, 468, 471 and 477A r/w 109 1IPC. The petitioner was arrested on 22.10.2005. He was suspended from service. After investigation, a charge sheet was filed in C.C.No.86/2005. Thereafter, the order of suspension was revoked and the petitioner was reinstated in service on 14.03.2006. 3. While so, the petitioner reached the age of superannuation on 31.01.2013. He was permitted to retire from service by the Revenue Divisional Officer, Gobichettipalayam, without prejudice to the criminal case pending in C.C.No.86/2005 before the Judicial Magistrate No.4, Coimbatore filed by the Inspector of Police, Economic Offences Wing. 4. The petitioner made a representation to the respondents on 20.02.2013 to settle his terminal benefits. But by the impugned order dated, 27.02.2013, the first respondent informed the petitioner that only after the disposal of the criminal case in C.C.No.86 of 2005, terminal benefits would be settled. Hence, the petitioner has filed this writ petition, seeking to quash the aforesaid order of the Tahsildar and for a consequential direction to pay him all the retirement benefits at the rate of 12% per annum. 5. A counter affidavit is filed refuting the allegations. 6. Heard both sides. 7. It is admitted by both sides that provisional pension was paid to the petitioner pending outcome of the criminal case. Therefore, the other benefits that are payable to the petitioner are General Provident Fund (GPF), Special Provident Fund (SPF), Leave Encashment and DCRG. As far as the payment of GPF, SPF and Leave Encashment are concerned, the department cannot withhold the same due to the pendency of the criminal proceedings. Even in the case of dismissal, these amounts are to be settled to the employee as the GPF and SPF are paid by the concerned individual. 8. As far as the payment of GPF, SPF and Leave Encashment are concerned, the department cannot withhold the same due to the pendency of the criminal proceedings. Even in the case of dismissal, these amounts are to be settled to the employee as the GPF and SPF are paid by the concerned individual. 8. Further in respect of GPF, SPF and Leave Encashment, a learned judge of this Court in W.P.No.9519 of 2012 dated 04 07.2012, has observed as follows:- "4. In view of the filing of the additional affidavit by the petitioner and having regard to the fact that special provident fund, general provident fund and encashment of earned leave cannot be withheld by the respondents even if she is dismissed from service after conclusion of the departmental proceedings, this writ petition is disposed of with a direction to the respondents to pay the petitioner the amount payable to her in respect of General Provident Fund, Special Provident Fund and encashment of earned leave to her credit within a period of four weeks from the date of receipt of a copy of this order." 9. A Full Bench of the Punjab and Haryana High Court vide judgment dated 09.11.2012 in LPA No.113 of 2012 has held thus:- "12. We are, therefore, in agreement with the view taken by the Division Bench of this Court in B.S.Gupta's cae (supra) holding that amount of leave encashment is payable to the retiring employee notwithstanding the pendency of the departmental enquiry or criminal proceedings." 10. Therefore, I am of the view that the respondents cannot withhold GPF, SPF and Leave encashment amount payable to the petitioner. 11. As far as pension is concerned, as stated above, the petitioner is getting provisional pension. The entitlement of full pension arose only after the completion of judicial proceedings. The same is not disputed even by the learned counsel for the petitioner. 12. The next question that arises for consideration is whether the petitioner is entitled for DCRG. 13. In this context, it is necessary to refer to Rule 69 of the Tamil Nadu Pension Rules deals with payment of DCRG, which is as follows:- "69. Provisional pension where department or judicial proceeding may be pending:- 1(a) ....... 12. The next question that arises for consideration is whether the petitioner is entitled for DCRG. 13. In this context, it is necessary to refer to Rule 69 of the Tamil Nadu Pension Rules deals with payment of DCRG, which is as follows:- "69. Provisional pension where department or judicial proceeding may be pending:- 1(a) ....... (b) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon: 1[.....] 2[Provided further that where a Government servant, against whom a departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may authorized after deducting the maximum computed financial loss to the Government for which the Government servant is held liable, along with un-recovered Government dues if any, of such Government servants, with interest." 14. The second proviso is highlighted as the same is relevant for the purpose of this case. In this case, the pecuniary loss alleged to have been caused by the petitioner amounts to Rs. 40,220/-. In fact, the learned counsel for the petitioner is fair enough to state that as per second proviso to Rule 69, after deducting the maximum computed financial loss to the Government, the balance amount can be paid to the petitioner. 15. In the light of the above, the writ petition is disposed of, by directing the respondents to pay DCRG to the petitioner, after deducting Rs.40,220/-, the loss said to have been caused by the petitioner. It is pertinent to note that Tamil Nadu Pension Rules itself provides for interest for belated payment of DCRG. Hence, a direction is also issued to pay interest for the belated payment, as provided under the Rules. As far as other benefits viz., GPF, SPF and Leave Encashment are concerned, the respondents are directed to settle the same immediately and in any event not later than four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.