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2022 DIGILAW 2661 (RAJ)

Kamal Kishore Rathi v. State Of Rajasthan

2022-10-21

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present writ petition has been filed with a prayer for grant of pension and amount of commutation to the petitioner. 2. The brief facts of the case are as under: The petitioner who was working on the post of District Industry Inspector with the respondent-Department, after completion of his tenure of service, stood retired on 31.08.2016. During the tenure of his service, a criminal case was registered against him in which he was acquitted vide order dated 05.11.2011. An appeal against the said order of acquittal was preferred by the State which remains pending till date. However, during that complete period no departmental proceedings were initiated against the petitioner and on retirement, all his retiral benefits were granted to him but he was deprived of regular pension and amount of commutation on the ground that the appeal against the order of acquittal is pending. 3. Learned counsel for the petitioner submitted that once he had been acquitted in the criminal case there was no occasion for the respondent-Department to deprive him of his regular pension only on the ground of an appeal being pending against him. The document (Annexure-3) whereby the objections had been raised by the Department of Pension has been placed on record and the reply to the same as forwarded by the employer of the petitioner has also been placed on record. A perusal of the reply specifies that all the objections as raised by the Pension Department have been duly replied by the Employer Department and therefore, no cause then survived to withhold the pension of the petitioner. Learned counsel for the petitioner relied upon the judgment passed in the case of a similarly situated employee namely Mohan Lal in S.B. Civil Writ Petition No. 2055/2011 (Mohan Lal v. Rajasthan Rajya Vidut Prasaran Nigam Ltd. & Ors.) decided on 04.12.2014 which was further affirmed by the Division Bench in D.B. Civil Special Appeal (Writ) No. 180/2015 (Rajasthan Rajya Vidut Prasaran Nigam Ltd. & Ors. v. Mohan Lal) decided on 04.07.2015. 4. Per contra, learned counsel for the respondents submitted that the pension Rules specifically provide that in case where judicial proceedings are pending against an employee, he would be entitled to provisional pension only. v. Mohan Lal) decided on 04.07.2015. 4. Per contra, learned counsel for the respondents submitted that the pension Rules specifically provide that in case where judicial proceedings are pending against an employee, he would be entitled to provisional pension only. Learned counsel submitted that the case for grant of provisional pension to the petitioner could not be finalised only because the queries as raised by the Department were not replied to by the petitioner. It has further been submitted that a direction had been sought by the Department from the State Government and in terms of the same, the case for provisional pension was to be prepared by the Department but as the petitioner did not file appropriate application for provisional pension, the matter could not be proceeded upon. 5. Heard learned counsel for the parties. Perused the material available on record. 6. It is clear on record that the petitioner had been acquitted in the criminal case vide order dated 05.11.2011 and an appeal was preferred by the State against the said order and the same remains pending till date. It is also admitted on record that no departmental proceedings against the petitioner were ever initiated by the Department. In Mohan Lal's case (supra), while relying upon an earlier judgment in the case of Sridan v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 1443/2012), decided on 13.12.2012, it was observed as under: "5. It may be stated here that the time which may be consumed in the decision of the appeal preferred by the State against the acquittal of the petitioner is totally uncertain. It may take decades for the said appeal to be decided. 6. Depriving the petitioner of the benefits, to which, he is otherwise entitled merely on the basis of pendency of the appeal against the acquittal, cannot be justified by any stretch of imagination as held by this Court in Sridan's case." 7. In the appeal preferred in the case of Mohan Lal, the Division Bench while affirming the order of the Single Bench observed as under: "7. Admittedly, the respondent-writ petitioner was acquitted by a competent court vide order dated 15.9.2000. During pendency of the disciplinary proceedings, the petitioner was placed under suspension vide order dated 24.6.1998. He was reinstated in service vide order dated 14.3.2000, without prejudice to the disciplinary proceedings/criminal proceedings pending against him. Admittedly, the respondent-writ petitioner was acquitted by a competent court vide order dated 15.9.2000. During pendency of the disciplinary proceedings, the petitioner was placed under suspension vide order dated 24.6.1998. He was reinstated in service vide order dated 14.3.2000, without prejudice to the disciplinary proceedings/criminal proceedings pending against him. Subsequent to his reinstatement, the petitioner was also acquitted by the criminal court vide judgment dated 16.9.2000. The order acquitting the respondent petitioner is in force till the same is not altered by an appellate court. As on date, there is no impediment in granting the selection grade and other service benefits that have become due to the respondent-writ petitioner. Moreover it is always open to the appellants to initiate departmental proceedings against the respondent should the appeal be allowed. However at the present moment it is highly unjust to withhold the service benefits which have accrued to him on the ground of pendency of the appeal." 8. In Sridan's case (supra), it was observed as under: "In view of Full Bench judgment of this Court in the case of Union of India v. Ramswarup (supra), the conviction or acquittal as the case may be by the trial court is final till the same is not altered by the appellate court. In view of this legal position, the pendency of application seeking leave to appeal is no impediment in granting selection grades, annual grade increments, revision of pay-scales and all other pensionary benefits to the petitioner..." 9. This Court in the matter of Smt. Kamla Choudhary v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 6766/2016) decided on 12.10.2022, observed as under: "It is admitted on record that neither any department proceeding was initiated against the petitioner by the respondent-Department nor any charge-sheet whatsoever pertaining to any charge was served on her. Therefore, it cannot be contemplated that the respondent-Department ever had any intention to undertake any departmental proceedings/inquiry against the petitioner. The only reason assigned for withholding of service benefits of the petitioner is that the criminal appeal had been preferred by the respondent-State against the order of acquittal. It is also not the case of the respondents that any interim order had been granted in favour of the State in the criminal appeal. The only reason assigned for withholding of service benefits of the petitioner is that the criminal appeal had been preferred by the respondent-State against the order of acquittal. It is also not the case of the respondents that any interim order had been granted in favour of the State in the criminal appeal. In the opinion of this Court, it goes without saying that if the appeal preferred by the respondent-State is allowed and the petitioner is held guilty of any offence, the consequence of the same would automatically follow. It would always be open for the respondent-Department to act in accordance with the judgment delivered by the Criminal Court in the appeal preferred by the respondent-State. The same would not require any order or direction of any Court. But only because of the pendency of an appeal, the petitioner cannot be subjected to any financial loss which indirectly amount to a penalty." 10. In view of the observations as made in the cases of Sridan and Mohan Lal (supra), it can be concluded that the pendency of an appeal is no impediment in granting the service as well as the pensionary benefits to an employee. 11. Accordingly, the present writ petition is allowed. The respondent authorities are directed to release the pension and amount of commutation to the petitioner with effect from the date he is legally entitled to. The required action be taken by the Department within a period of three weeks of the date of receipt of copy of the present order. 12. All the pending applications stand disposed of.