JUDGMENT : Sanjeev Kumar, J. 1. This intra-Court appeal is directed against the judgment dated 6th of May, 2019, passed by the learned Single Judge in SWP No. 1214/2017 and order dated 04.06.2019 passed in RPSW No. 28/2019 titled Ghulam Mohi-ud-Din Lone vs. State of J&K & Ors. 2. Briefly stated, the facts relevant to the disposal of this appeal are that the appellant in the year 2014 was holding the post of Soil Conservation Assistant in the respondent Department when FIR No. 25/2014 for embezzlement of an amount of Rs. 2,47,993/came to be registered against him and three others with Vigilance Organization, Kashmir. While the FIR was under investigation, the appellant retired on superannuation w.e.f. 31st of August, 2016. He was not released his post retiral benefits despite the fact that he had completed all the requisite formalities and had obtained 'No Objection Certificate' from the concerned departments. The pensionary benefits to the appellant were denied on the ground that he was facing a criminal charge of misappropriation in FIR No. 25/2014 which, at the time of his retirement, was pending investigation with Vigilance Organization, Kashmir. The appellant represented to the respondents and sought parity with other accused in the FIR who had been superannuated by the respondents with all post retiral benefits. When no heed was paid to the repeated requests of the appellant, he filed SWP No. 1214/2017 seeking, inter alia, a direction to the respondents to give him same treatment as had been given to the similarly situated persons and grant him all the post retiral benefits. He even went to the extent of laying challenge to the FIR No. 25/2014 registered by Vigilance Organization, Kashmir, against him and three other employees of the department. The writ petition, as it appears from the impugned judgment, was vehemently resisted by the respondents. It was contended that pending investigation of FIR against the appellant and in the absence of 'No Objection Certificate' from Vigilance Organization, the appellant was not entitled to any post retiral benefits Viz. pension, gratuity, leave salary etc. The Writ Court after hearing the learned counsel for the parties and placing strong reliance on Article 168-D of J&K Civil Service Regulations, 1956 (CSR) concluded that in the face of registration of FIR for the offences punishable under Section 5(1)(c)(d) read with 5(2) of J&K Prevention of Corruption Act, Svt. pension, gratuity, leave salary etc. The Writ Court after hearing the learned counsel for the parties and placing strong reliance on Article 168-D of J&K Civil Service Regulations, 1956 (CSR) concluded that in the face of registration of FIR for the offences punishable under Section 5(1)(c)(d) read with 5(2) of J&K Prevention of Corruption Act, Svt. 2006 and Section 120-B RPC for abuse of official position, the appellant was not entitled to pension and gratuity. Similarly the Writ Court also did not hold the appellant entitled to leave salary in view of provisions of Rule 37(2)(v) of the J&K Civil Service (Leave) Rules, 1979. The Writ Petition was, accordingly, dismissed. 3. Feeling aggrieved and dissatisfied with the judgment passed by the learned Single Judge, the appellant filed a review petition before the Writ Court but the same was also dismissed by the Writ Court on the ground that the appellant could not point out any error apparent on the face of record. Both the judgment of the Writ Court in the writ petition and the judgment in the review petition are subject matter of challenge in this appeal. 4. Heard learned counsel for the parties and perused the record. 5. The decision of this appeal and the entitlement or otherwise of the appellant to the post retiral benefits would turn on the interpretation of Article 168-D of the CSR and, therefore, it would be necessary to first set out Article 168-D of CSR: "168-D. (1) 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 on 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. (2) 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. Note.-The grant of pension under this Article shall not prejudice operation of Articles 233 and 234, when final pension is sanctioned upon conclusion of the proceeding. Government Instruction No. 1--(i) The payment of provisional pension is mandatory. Even in cases where the departmental proceedings instituted against a Government servant were for a major penalty and in which ultimately no pension might become payable on the conclusion of the proceedings after his retirement the provisional pension cannot be denied to the retired Government servant till conclusion of proceedings. (ii) Provisional pension paid under these rules will remain provisional so long as the departmental proceedings are not' finalized. (iii) In the case of provisional pension. Pension sanctioning authority has no discretion to pay less than the maximum pension, which would otherwise be admissible to the Government servant. In all such cases hundred percent pension which would be admissible to the Government servant had he retired in the normal course should be authorised Death-cum-Retirement Gratuity will remain stopped till conclusion of the proceedings. Pending cases if any shall be decided accordingly. Government Instructions 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." 6. Article 168-D in turn refers to Article 168-A of CSR and, therefore, with a view to properly understand and appreciate the meaning and import of Article 168-D, it would be equally necessary to reproduce Article 168-A as well: "168-A. The Government reserves to itself the right to order the recovery from the pension of an officer of any amount on account of losses found in Judicial or Departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service provided that- (a) such Departmental proceedings if not instituted while the officer was on duty- (i) shall not be instituted save with the sanction of Government; (ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty, whichever is later; (iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty; and (iv) shall be conducted by such authority and in such places as the Government may direct; (b) all such departmental proceedings shall be conducted if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and (c) such judicial proceedings if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (a) above. 7. A conjoint reading of Article 168-A and 168-D makes it explicit that the Government is entitled to order the recovery from the pension of an officer any amount on account of losses found in 'judicial' or 'departmental' proceedings to have been caused to the government by the negligence or fraud of such officer during his service. It further provides that if such 'departmental' or 'judicial' proceedings are not instituted against the officer while he is in service or on duty, the same shall not be instituted without the sanction of the government and shall be instituted within a year from the date he was last on duty. The proceedings must not pertain to an event which took place not more than one year before the date on which the officer was last on duty. This is so elaborately provided in Article 168-A of CSR. The proceedings must not pertain to an event which took place not more than one year before the date on which the officer was last on duty. This is so elaborately provided in Article 168-A of CSR. However, in terms of Article 168-D, where any 'departmental' or judicial proceeding' is instituted, as is provided in Article 168-A or where the 'departmental' proceeding is continued under clause (a) of proviso thereto against an official who has retired on attaining superannuation or otherwise, he shall be entitled to provisional pension from the date of his retirement to the date on which the proceedings are concluded and final orders are passed and until such time, the concerned officer shall not be entitled to any gratuity also. It is, thus, evident that for denying pension and gratuity to an employee, it has to be demonstrated by the employer that either 'judicial' or 'departmental' proceedings' in terms of Article 168-A of CSR are pending against the officer and it is only in such eventuality, the employer can order payment of provisional pension and withhold gratuity till the time proceedings are concluded and final orders in this regard are passed. 8. With a view to better appreciate the true import of these twin Articles of CSR, it is necessary to understand as to what is meant by the term 'judicial' or "departmental' proceedings. 9. The CSR does not define the term 'judicial proceedings'. However, it is clear that the term 'judicial proceedings' has been used in contradistinction to the term "criminal proceedings". In the absence of clear definition provided in the CSR, it would be fair and just to say that 'judicial proceedings' would include both civil proceedings as well as criminal proceedings. Civil proceedings for the purposes of these Articles would be deemed to have been instituted when a plaint is filed before the competent court of law. In so far as criminal proceedings are concerned, these shall be deemed to be instituted on presentation of a complaint of facts constituting the offence or a charge sheet by the police in the competent court of law. In any case, mere registration of an FIR and its investigation by the investigating agency cannot tantamount to institution of 'judicial proceedings'. The 'judicial proceedings' can only be launched before a court which is capable of passing a definitive judgment on the issues before it. In any case, mere registration of an FIR and its investigation by the investigating agency cannot tantamount to institution of 'judicial proceedings'. The 'judicial proceedings' can only be launched before a court which is capable of passing a definitive judgment on the issues before it. Viewed thus, we are not inclined to concur with the view of the Writ Court that the appellant was not entitled to payment of post retiral benefits except the provisional pension in view of pendency of a criminal case i.e. FIR No. 25/2014. It is not disputed before us that on the date the appellant retired on superannuation, FIR was still under investigation and challan in the competent court of law had not been presented. As a matter of fact, the final report/challan in the case of appellant was presented only on 27th of October, 2020 i.e. during the pendency of this appeal and, therefore, by no stretch of reasoning, it can be said that on the date of retirement of the appellant, any judicial proceedings were either instituted or pending against the appellant. Admittedly, the respondents had lodged FIR against the appellant and three others and had chosen not to conduct any disciplinary proceedings. In that view of the matter, we fail to understand as to how the respondents could deny the post retiral benefits to the appellant. 10. Assuming though it is not correct that the case of the appellant was covered by Article 168-D of SCR yet the GPF and leave salary could not have been denied to him. The reliance of the Writ Court on Rule 37(2)(v) of the Leave Rules of 1979 is equally misplaced in the given facts and circumstances of the case. It is not the case of respondents that in view of pendency of criminal proceedings against the appellant, Competent Authority was of the view that there was possibility of some money becoming recoverable from him on conclusion of proceedings. It is not the case of respondents that in view of pendency of criminal proceedings against the appellant, Competent Authority was of the view that there was possibility of some money becoming recoverable from him on conclusion of proceedings. A quick look on Rule 37(2)(v), which is reproduced here under, will make things abundantly clear: "The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in view of such authority there is possibility of some money becoming recoverable from him on conclusion of proceedings against him on conclusion of proceedings, he will become eligible to the amount so withheld, after adjustment of Government dues, if any." 11. Rule 37(2)(v) would not be applicable for two reasons; one there were no disciplinary or criminal proceedings pending against the appellant nor he was under suspension at the time of his retirement; and, second that the competent authority never recorded its satisfaction that there was possibility of some money becoming recoverable from the appellant on conclusion of the proceedings. As clarified above and is reiterated here that pendency of FIR does not tantamount to institution or pendency of criminal proceedings and, therefore, neither Article 168-A read with Article 168-D of CSR nor the provisions of Rule 37(2)(v) of Leave Rules of 1979 were attracted. 12. It is trite that the pension and gratuity are not bounties to be given by the employer to the employees. It is earned by an employee by dint of his long, continuous and unblemished service. What is the nature of these post retiral benefits was elaborately explained in a Constitution Bench decision rendered in the case of Deokinandan Prasad Vs. State of Bihar & Ors, AIR 1971 SC 1409 , wherein the Supreme Court authoritatively ruled that pension is a right and the payment of it does not depend on the discretion of the government but is governed by the rules and a government servant coming within those rules is entitled to claim pension as of right. It was further held that the grant of pension does not depend on any one's discretion. It was further held that the grant of pension does not depend on any one's discretion. It is only for the purposes of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive the pension flows to the officer not because of any such order but by virtue of the rules. This view was reiterated by the Supreme Court in the case of D.S. Nakara & Others Vs. Union of India (1983) 1 SCC 305 . 13. At this stage it would be pertinent to recall what was held by the Supreme Court in UP State Sugar Corporation Ltd. & Ors vs. Kamal Swaroop Tandon, 2008(2) SCC 41 . The Apex Court after referring to several judgments on the point in paragraphs 14 to 28 held that retiral benefits are earned by an employee for long and meritorious services and gratuity is paid to such an employee for his dedicated and devoted work and still the Supreme Court came to be conclusion that departmental enquiry can be initiated against a government servant after his superannuation and pension can be reduced and gratuity can be withheld. The Supreme Court also held that such proceedings cannot only be initiated before the employee retires but can also continue after his retirement or they may be initiated even after his retirement and in all such cases the government is entitled to recover any pecuniary loss suffered by it due to negligence or serious misconduct of an employee. 14. The net result of the law laid down by the Supreme Court in the judgments referred above is that the hard earned benefit in the shape of pension and gratuity that accrues to an employee is in the nature of 'property'. The right to property may not be a fundamental right any more but it continues to be a Constitutional right and cannot be taken away without due process of law, as is provided under Article 300A of the Constitution of India. It, therefore, follows that to deprive a person of his right to property, the State has to come up with a law within the meaning of Article 300A of the Constitution of India. It cannot be taken away by way of executive instructions which do not have any statutory character. It, therefore, follows that to deprive a person of his right to property, the State has to come up with a law within the meaning of Article 300A of the Constitution of India. It cannot be taken away by way of executive instructions which do not have any statutory character. It is thus axiomatic that the pension and gratuity is a property and the employee who has earned it cannot be deprived of it otherwise than by law within the meaning of Article 300A of the Constitution of India. The pension or gratuity can be denied to a retired employee like appellant only in accordance with the statutory provisions of Articles 168-A and 168-D of CSR. As explained above, since neither 'judicial proceedings' nor 'departmental proceedings' against the appellant were instituted at the time of his retirement, as such, there is no statutory mandate to deny the pension, gratuity and other post retiral benefits to the appellant. The respondents have not brought to our notice any other statutory provision either in the CSR, Pay Rules of 1979 or J&K Civil Services (Classification, Control and Appeal) Rules, which entitle the employer, the respondents herein, to deny post retirement benefits to an employee merely on the ground that at the time of his superannuation, an FIR into his misconduct was registered and pending investigation. The mandate of Statutory Rules, reproduced hereinabove, is that the government will sanction only provisional pension and withhold the gratuity in the cases where the employee at the time of superannuation was facing either a 'departmental enquiry' or a 'judicial proceeding'. The connotation of the term 'judicial' proceedings has already been explained by us hereinabove. 15. It may be pertinent to note that the Supreme Court in the case of Union of India vs. K. V. Jankiraman, AIR 1991 SC 2010 , has held that the 'criminal proceedings' shall be deemed to have commenced from the date criminal court of law frames charges against the accused delinquent. The Supreme Court was considering the applicability of "sealed cover procedure" in the matter of promotions with reference to the employees who were facing either the departmental proceedings or the criminal proceedings. The term "criminal proceedings" was, thus, interpreted by the Supreme Court in the aforesaid context. The Supreme Court was considering the applicability of "sealed cover procedure" in the matter of promotions with reference to the employees who were facing either the departmental proceedings or the criminal proceedings. The term "criminal proceedings" was, thus, interpreted by the Supreme Court in the aforesaid context. In the instant case, we are, however, confronted with the term 'judicial proceedings' used in the context of post retiral benefits to which an employee may or may not be entitled to because of pendency of such proceedings. Given the context in which the term has been used, we can safely conclude that the Rule Making Authority was aware that the "judicial proceedings" instituted against an employee for causing loss to the government could be both civil as well as criminal. It is, thus, in-keeping with the objective of Articles 168-A and 168-D, we have interpreted the term "judicial proceedings" to mean and include both civil as well as criminal proceedings. 16. Viewed thus, we are of the firm opinion that the case of the appellant was neither covered by Article 168-A and 168-D of CSR nor the appellant could have been denied the leave salary by applying Rule 37(2)(v) of the Jammu and Kashmir Civil Services (leave) Rules, 1979. The Writ Court was perhaps persuaded to believe that the Vigilance Organization, Kashmir, after completing the investigation in FIR No. 25/2014 had presented the challan before the competent court of law and the same was pending trial whereas the fact remains that the challan in the instant case was filed only on 27th of October, 2020 i.e. during the pendency of this appeal. 17. For all these reasons, we find merit in this appeal and the same is, accordingly, allowed. The judgment dated 6th of May, 2019, passed by the learned Single Judge in SWP No. 1214/2017 and order dated 04.06.2019 passed in RPSW No. 28/2019, are set aside. The appellant is held entitled to all admissible post retiral benefits including pension, GPF, gratuity and leave salary etc. with effect from 31st of August, 2016, along with interest @6% per annum. The respondents to process and release retiral benefits in favour of the appellant within a period of eight weeks from the date a copy of this judgment is served upon them. with effect from 31st of August, 2016, along with interest @6% per annum. The respondents to process and release retiral benefits in favour of the appellant within a period of eight weeks from the date a copy of this judgment is served upon them. It is made clear that if the case of the appellant for release of post retiral benefits is not processed and finalized within the stipulated period, the amount shall be payable with interest @9% per annum. 18. Disposed of as above.