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2019 DIGILAW 477 (RAJ)

Jagan Ram v. State of Rajasthan

2019-02-08

ALOK SHARMA

body2019
JUDGMENT Alok Sharma, J. - The petitioner has prayed to direct the respondents to release his amount of gratuity and commutation etc. along with interest @18% per annum. 2. The fact relevant for the adjudication of this petition is that the petitioner superannuated on 31-8-2008 from the post of Office Superintendent in the Social Justice and Empowerment Department. Prior thereto on an FIR No. 198/1996 being registered against him he was prosecuted for offences under Section 409, 420, 468, 471 read with 120-B IPC and 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988, but acquitted on 17-7-2006. Following that his suspension was revoked on 2-8-2006 and he was reinstated as Office Superintendent. The period of suspension was regularized on 6-12-2007 for all purposes as per Rule 54(2) of the Rajasthan Service Rules, 1951. 3. The judgment of petitioners acquittal dated 17-7-2006 is under challenge in an appeal No. 792/2007, which is yet pending for a hearing. 4. The petitioners case is that except the States appeal against his acquittal, the petitioner has no proceeding criminal or departmental against him. On his superannuation he was paid pensionary benefits other than gratuity and commutation payable. Those amounts due have been withheld without any legal foundation and not released despite several requests including representation dated 18-9-2013 to which respondent No. 3 vide letter dated 3-2-2014 invoked in defence Rule 90(1)(c) of the Rajasthan Civil Services (Pension) Rules, 1996 (hereafter the Rules of 1996). The petitioners subsequent representation relying on the authority of the judgment of the Apex Court in the case of State of Jharkhand v. Jitendra Kumar Srivastava , decided on 14-8-2013, holding that in absence of any provision in Pension Rules the State Government cannot withhold any part of pension/or gratuity during pendency of departmental/criminal proceedings. That was also of no avail as the respondents vide letter dated 19-11-2014 stated that as per Rules 7 and 90 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereafter the Rules of 1996) the amount of gratuity could inter alia be withheld during pendency of a criminal appeal against acquittal. 5. The petitioners case is that Rule 7 of the Rules of 1996 confers power on the Governor to withhold or withdraw pension where the employee is found guilty of grave misconduct or negligence. 5. The petitioners case is that Rule 7 of the Rules of 1996 confers power on the Governor to withhold or withdraw pension where the employee is found guilty of grave misconduct or negligence. Rule 90 of the Rules of 1996 provides for sanction of provisional pension in case of pendency of departmental enquiry/criminal trial. None of the two provisions above attract to the petitioners case. It has been submitted that the petitioner having been acquitted vide judgment dated 17-7-2006, his suspension was revoked on 2-8-2006 and the suspension period was regularized on 6-12-2007 and on his subsequent superannuation on 31-8-2008 he was allowed to draw pension. The respondents in the above facts invoking Rule 7 and 90 of the Rules of 1996 is a non sequitur. The amount of gratuity and commutation have not been released in an inexplicable and arbitrary exercise of power. 6. Defence of the respondents is that the petitioners gratuity and commutation has been withheld as per Rule 90(1)(c) of the Rules of 1996, which inter alia provides that in case of any judicial proceedings against an employee he would not be entitled for final payment of commutation of pension and gratuity. In the instant case the petitioners acquittal vide judgment dated 17-7-2006 is under challenge in appeal filed by the State. It has been submitted that the judgment of the Apex Court in the case of State of Jharkhand v. Jitendra Kumar Srivastava (supra) is not applicable to the case of petitioner as Rules 7 and 90(1)(c) of the Rules of 1996 do specifically provide for withholding of retiral benefits during pendency of judicial proceedings which includes the States appeal against a judgment of acquittal. 7. Hence this petition. 8. Counsel for the petitioner relied on Mahadev M. Asudani v. State of Rajasthan , SBCWP No. 12153/2008 decided on 17-2-2017, wherein this court held that "Once the judicial proceedings have culminated into a clear acquittal, then any subsequent proceeding challenging the acquittal shall not be a bar to the payment of gratuity to the employee by resort to Rule 90(1)(c) of the Rules of 1996. The court has for its just conclusion read the words "judicial proceeding" to exclude appeals against acquittal of a government servant. The court has for its just conclusion read the words "judicial proceeding" to exclude appeals against acquittal of a government servant. Counsel submitted that any other interpretation would eviscerate a government servant and leave his right to retiral benefits, despite the buttressing of the initial presumption of innocence by the Courts acquittal, to the uncertainties of the time expanded in the disposal of the States appeal.--which experience establishes, is spread over decades not the least for the States own disinterest. Counsel also relied on the judgment in the case of Virendra Kumar Singhal v. The Chairman and Managing Director, Rajasthan Rajya Vidhyut Utpadan Nigam Ltd. , SBCWP No. 16994/2016, decided on 25-10-2017, wherein it was held that "Thus, the judicial proceedings stand concluded immediately when a person has been discharged or acquitted, and that criminal revision filed before the High Court cannot be said to be a continuation of criminal trial or criminal proceeding against an individual within the meaning of Rule 7 of the Pension Rules of 1996, and therefore, the embargo contained under Rule 90(1)(c) would be no more applicable once a person has been discharged of the criminal offence. Thus merely because of pendency of criminal revision or for that matter appeal against a discharge or acquittal as the case may be, a person cannot be denied regular service benefits." Counsel also relied upon the judgment of the Division Bench of this court in the case of State of Raj. v. Jogendra Singh , DB Civil Special Appeal No. 110/2005, decided on 4-4-2005, wherein it was held that "simply because the appeal against the order of acquittal is pending before the appellate court, the respondent cannot be deprived for the retiral benefits." 9. Mr. M.S. Singhvi, learned Advocate General appearing for the State however relied on the judgment of the Apex Court in the case Gurpal Singh v. High Court of Judicature of Rajasthan [ (2012) 13 SCC 94 ] to submit that the Apex Court had refused to interfere with an order of suspension despite an acquittal on the ground of an appeal thereagainst pending. 10. Heard. Considered. 11. Admittedly, the petitioner having been acquitted on 17-7-2006, his suspension being revoked on 2-8-2006, and the suspension period regularized on 6-12-2007 was superannuated thereafter on 31-8-2008. No doubt the States appeal against the judgment of acquittal is pending for the last over 10 years. 10. Heard. Considered. 11. Admittedly, the petitioner having been acquitted on 17-7-2006, his suspension being revoked on 2-8-2006, and the suspension period regularized on 6-12-2007 was superannuated thereafter on 31-8-2008. No doubt the States appeal against the judgment of acquittal is pending for the last over 10 years. That is a matter for the State to pursue. It is nobodys case that the petitioner is obstructing the decision in the States appeal. Admittedly there is no order against the petitioner based on which a legal foundation for denial of all the retiral benefits including gratuity and commutation can be propagated. This court in the case of Mahadev M. Asudani v. State of Rajasthan , (supra) has categorically held that "Once the judicial proceedings have culminated into a clear acquittal, then any subsequent proceeding challenging the acquittal shall not be a bar to the payment of gratuity to the employee in terms of Rules 90(1)(c) of the Rules of 1996. In the context of courts view taken as above and the underlying principle decipherable therefrom, to focus on the difference between a discharge and acquittal leading to a revision on the one hand and appeal on the other would be to emphasize a difference without any real distinction. This because whether it be a discharge or acquittal, both conclusions buttress the innocence as distinguished from the guilt of one accused. 12. Similarly in the case of Virendra Kumar Singhal v. The Chairman and Managing Director RRVUNL (supra) it was held that "Thus, the judicial proceedings stand concluded immediately when a person has been discharged or acquitted and that criminal revision cannot be said to be a continuation of criminal trial or criminal proceeding against an individual within the meaning of Rule 7 of the Pension Rules of 1996, and therefore, the embargo contained under Rule 90(1)(c) would be no more applicable once a person has been discharged of the criminal offence. Similarly the Division Bench of this court in the case of State of Raj. v. Jogendra Singh (supra) it was held that "simply because the appeal against the order of acquittal is pending before the appellate court, the respondent cannot be deprived for the retiral benefits." 13. The judgment of the Apex Court in the case of Gurpal Singh v. High Court of Judicature of Rajasthan (supra) relied upon by the learned AG Mr. v. Jogendra Singh (supra) it was held that "simply because the appeal against the order of acquittal is pending before the appellate court, the respondent cannot be deprived for the retiral benefits." 13. The judgment of the Apex Court in the case of Gurpal Singh v. High Court of Judicature of Rajasthan (supra) relied upon by the learned AG Mr. M.S. Singhvi is not in the context of denial of retiral benefits despite a judgment of acquittal even prior to superannuation. A matter of continuation of suspension during an appeal against an acquittal is qualitatively different from denial of retiral benefits. What binds this court is the categorical enunciation of law and a very visible ratio decidendi therefrom in the case of Mahadev M. Asudani v. State of Rajasthan (supra), Virendra Kumar Singhal v. Chairman & Managing Director RRVUNL (supra). The issue before the Apex Court in the case of Gurpal Singh (supra) was only tangential vis-a-vis the issue at hand in this petition. The said judgment is thus inapposite to the facts of the present case. 14. The upshot of the aforesaid discussion is that the pendency of the appeal against the petitioners acquittal vide judgment dated 17-7-2006 cannot be held to be a pendency of "judicial proceeding" entitling the respondents to withhold petitioners gratuity, commutation or for that matter any other retiral benefits due following the petitioners superannuation on 31-8-2008. 15. Resultantly, this petition is allowed. The respondents are directed to release the petitioners gratuity and commutation and other retiral benefits due within a period of two months from today. The petitioner shall also be entitled to interest @ 9% per annum on the amount of gratuity, commutation and other retiral benefits as may be due, from the date i.e. 31-10-2008 (on completion of sixty days from the date of superannuation, during which period the benefits were to be released) till the date of actual payment to the petitioner. 16. This petition stands accordingly allowed.