Ravinder Singh vs Public Work Department (R&B)

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pension, gratuity and other admissible retiral dues, along with interest. The applicant has also sought determination of the period of his suspension from 01.08.2022 to 31.05.2023(wrongly mentioned as 31.05.2022) by treating the same as period spent on duty and has further prayed for appropriate relief in respect of the delay in release of his retiral benefits.

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02. The facts, in brief , are that the applicant was serving as an

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Assistant Engineer in the Public Works (R&B) Department and was posted in REW Division, Boniyar. On 01.08.2022, he was arrested by the Anti-Corruption Bureau, Jammu and Kashmir, in connection with FIR No. 23/2022 registered under Section 7 of the Prevention of Corruption Act, 1988, at Police Station ACB Baramulla. Consequent upon his arrest, the applicant was placed under suspension by Government Order No. 301PW(R&B) of 2022 dated 02.09.2022, with effect from the date of his arrest, i.e. 01.08.2022.

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03. The applicant submits that despite continuation of the

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suspension, no charge-sheet was served upon him and no departmental proceedings were initiated. He accordingly approached this Tribunal by filing O.A. No. 1182/2022 challenging the continuation of his suspension. This Tribunal, after noticing that the suspension had continued beyond the period of 90 days and that no charge-sheet had been served, directed the competent authority to review the suspension in the light of the Government instructions appended to Rule 31 vide SRO 616 dated 20.09.1978 and to pass a speaking order. The said Original Application was, accordingly, decided on 08.05.2023.

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04. The applicant thereafter attained the age of

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superannuation and retired from Government service on 31.05.2023. According to the applicant, despite his retirement, the respondents did not release his entire retiral benefits. Only provisional pension came to be released in his favour, while other retiral benefits, including gratuity, remained withheld. The pension documents placed on record indicate that provisional

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pension was authorized in favour of the applicant.

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05. The applicant contends that mere pendency of an FIR or investigation cannot constitute a lawful ground for withholding pensionary and other retiral benefits. It is submitted that no departmental proceeding had been initiated against him and that no criminal case had been instituted before the competent Court.

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06. The applicant, in support of his claim,has inter alia, placed

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reliance the relevant of CSR upon provision prescribingthe circumstances and the manner in which pension or other retiral benefits may be withheld.The applicant has further relied upon the judgment of the Hon'ble High Court of Jammu and Kashmir and Ladakh in Ghulam Mohi-ud-Din Lone v. State of J&K &Ors ., LPA No. 220/2019, decided on 11.12.2020, wherein the

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issue concerning withholding of pensionary benefits on account of pendency of an FIR was considered with reference to Article 168-A and 168-D of the Jammu and

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Kashmir Civil Service Regulations and Rule 37(2)(v)

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of the Jammu and Kashmir Civil Services (Leave) Rules, 1979.

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07. Reliance has also been placed upon the judgment of the Hon'ble Supreme Court in Dev Prakash Tewari v. U.P.

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Cooperative Institutional Service Board, Lucknow

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&Ors ., Civil Appeal Nos. 5848-5849 of 2014, decided on

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30.06.2014, concerning the authority of the employer to

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continue disciplinary proceedings after retirement and its effect upon retiral benefits. The judgment is part of the compilation placed on record by the applicant.

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08. The applicant has further relied upon the judgment of the Hon'ble Supreme Court in State of Jharkhand &Ors. v. Jitendra Kumar Srivastava & Anr. , Civil Appeal Nos. 6770-6771 of 2013, decided on 14.08.2013, wherein the

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right to receive pension was considered in the context of Article 300-A of the Constitution. The Hon'ble Supreme Court examined the statutory power to withhold pension

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and gratuity and reiterated that such benefits cannot be

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withheld except in accordance with law.

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09.Per contra , learned counsel appearing for the respondents

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has opposed the Original Application. The respondents have raised preliminary objections regarding the maintainability of the application and have contended that

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the applicant has not established any enforceable right warranting interference by this Tribunal.

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10. On merits, the respondents submit that the applicant was

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arrested by the Anti-Corruption Bureau in connection with FIR No. 23/2022 and was consequently placed under suspension. It is contended that the criminal case remained pending and that the applicant cannot claim an unblemished service record during such pendency.

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11. The respondents further state that the status of FIR No. 23/2022 was sought from the Anti-Corruption Bureau through official communications, but no response had been received. It has also been stated that suspension cases involving trap and vigilance matters are reviewed by

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the Committee constituted by the General Administration Department, but the applicant's case could not be

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submitted for review for want of the latest status report

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from the investigating agency.

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12. The respondents have further stated that no charge-sheet, draft articles of charge or other relevant documents had

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been supplied by the General Administration Department/Anti-Corruption Bureau for initiating consequential departmental proceedings against the applicant.

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13. As regards the retiral benefits, the respondents have referred to the applicant's superannuation on 31.05.2023 and the provisions of Article 168 of the Jammu and Kashmir Civil Service Regulations governing the matter.

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14. I have heard learned counsel for the parties and carefully perused the pleadings, the documents placed on record, the order passed by this Tribunal in O.A. No. 1182/2022 and the judgments relied upon by the applicant.

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15. The facts which merge from the pleadings and the material placed on record are not materially in dispute. The applicant has attained the age of superannuation and

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has accordingly retired from service on 31,05.2023. It is

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also not the case of the respondents that any departmental proceedings were pending against the applicant at the time of his retirement. No charge sheet in any departmental

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inquiry is shown to have been served upon him. The only circumstance relied upon by the respondents for withholding his retiral benefits is the pendency of an FIR No. 23/2022, U/S 7 PC Act 1988, P/S ACB Baramulla ,

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which, as stated, is still under investigation.

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16. The short questions which, therefore, arises for consideration is –

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(i) Whether, mere pendency of an FIR No. 23/2022 and investigation thereunder, in the absence of pendencyof

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any judicial proceedings by way of institution of criminal proceedings before a competent Court or pendency of any

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departmental proceedings against the applicant at the time of retirement, furnishes a lawful basis for withholding of the retiral benefits of the applicant by the respondents?

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(ii) Whether, in the facts and circumstances of the case, the applicant is entitled to release of his admissible retiral benefits?

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(iii) Whether, the applicant is entitled to a direction regarding determination of the period of his suspension in accordance with applicable rules?

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17. At the outset, the objection that the present proceedings are barred by reason of the earlier O.A. No. 1182/2022 does not merit acceptance. The earlier Original Application was instituted while the applicant was still in service and the grievance therein related to the continuation of his suspension. The order dated 08.05.2023 directed review of the suspension in accordance with the Government instructions appended to Rule 31 vide SRO 616 dated 20.09.1978.

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18. The applicant thereafter retired from service on 31.05.2023. The present proceedings concern the subsequent and distinct grievance relating to non-release of retiral benefits upon his superannuation. The issue of

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release of pension, gratuity and other retiral benefits had neither arisen for final adjudication in the earlier proceedings nor been decided therein. The earlier Original Application, therefore, cannot operate as a bar to consideration of the present claim.

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19. The principal question, therefore, is whether the pendency of FIR No. 23/2022, without institution of departmental proceedings or judicial proceedings of the nature contemplated under Article 168-A and Article 168-D of the Jammu and Kashmir Civil Service Regulations 1956, constitutes sufficient authority for withholding the applicant's retiral benefits.

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20. The issue is required to be examined in the light of the statutory scheme governing pension and gratuity. Pensionary and retirement benefits are not matters resting merely upon executive grace or administrative discretion. Where the applicable service or pension regulations prescribe the circumstances in which pension or gratuity

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may be withheld or reduced or withheld provisionally, the

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authority of the Government has to be traced to those provisions. An administrative decision cannot enlarge the circumstances in which an employee's earned retiral benefits may be withheld.

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21. It is equally, well settled that the pensionary and retirement benefits of a government servant are not matter of bounty or grace. They constitute statutory entitlements earned by the employee by virtue of his qualifying service and can be withheld only in accordance with the statutory provisions governing the service. The right to such benefits is also protected as a right to property under Article 300- A of the Constitution and cannot be deprived except by authority of law. In this regard, the observations of the Hon'ble Supreme Court in State of Jharkhand

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&Ors. v. Jitendra Kumar Srivastava &An r. (supra) assumes significance. The Hon'ble Supreme Court while considering the nature of the right to pension in the context of Article 300-A has held that pension constitutes property and , therefore, cannot be withheld except by

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authority of law.

22. Articles 168-A and 168-D of the Jammu and Kashmir

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Civil Service Regulations and Rule 37(2)(v) of the Jammu and Kashmir Civil Services (Leave) Rules, 1979 regulate, inter alia, the consequences of pending judicial or departmental proceedings in relation to pensionary

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benefits, gratuity and the cash equivalent of earned leave.

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23. Article 168-A of the Jammu and Kashmir Civil Service

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Regulations reads as under:

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" 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—

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(a) such departmental proceedings, if not instituted while the officer was on duty—

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(i) shall not be instituted save with the sanction of Government;

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(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;

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(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

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(iv) shall be conducted by such authority and in such places as the Government may direct;

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(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

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(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."

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24. Article 168-D of the Jammu and Kashmir Civil Service

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Regulations provides as under:

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"168-D. (1) Where any departmental or judicial proceeding is instituted under Article 168-A or where departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be sanctioned by the authority competent to sanction pension, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the officer, 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-cumretirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.

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(2) Payment of provisional pension made under clause (1) shall be adjusted against the final retirement benefits

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sanctioned to such officer upon conclusion of the aforesaid proceedings, but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or where the pension is reduced or withheld either permanently or for a specified period.

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Note: The grant of provisional pension under this Article shall not prejudice the operation of Articles 233 and 234 when final pension is sanctioned upon conclusion of the proceedings.

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Government Instruction No. 1

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(i) The payment of provisional pension is mandatory. Even where departmental proceedings instituted against a Government servant are for a major penalty and ultimately no pension may become payable on conclusion of the proceedings, provisional pension cannot be denied till the proceedings are concluded.

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(ii) Provisional pension paid under these rules shall remain provisional so long as the departmental/judicial proceedings are not finalized.

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(iii) The pension sanctioning authority has no discretion to sanction less than the maximum pension otherwise admissible. In all such cases, hundred percent pension which would have been admissible had the Government servant retired in the normal course shall be authorized, whereas Death-cum-Retirement Gratuity shall remain withheld till conclusion of the proceedings.

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Government Instruction No. 2

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Where a retired Government servant in receipt of provisional pension dies before the conclusion of the departmental/judicial proceedings instituted against him, he shall be treated as if exonerated of all charges, and Deathcum-Retirement Gratuity, arrears of pay, leave salary,

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enhanced pension or any other consequential benefit shall be released in full in the same manner as if no departmental or judicial proceedings had been instituted against him."

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25. Likewise, Rule 37(2)(v) of the Jammu and Kashmir Civil

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Services (Leave) Rules, 1979 lays down as under:

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" The authority competent to grant leave may withhold the whole or part of the 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 the view of such authority, there is a possibility of some money becoming recoverable from him on conclusion of the proceedings. On the conclusion of such proceedings, he shall become eligible to the amount so withheld after adjustment of Government dues, if any."

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26. A conjoint reading of the Article 168-A and Article 168 – Dread with Rule 37 (2) (v), makes it clear that withholding of pension , gratuity or other retiral benefits is

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permissible only when judicial or departmental proceedings are instituted and pending in accordance with the prescribed statutory conditions. Further, for invoking

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Rule 37 (2) (v) the competent authority must be satisfied,

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on the basis of the pending proceedings, that a recoverable

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Government due is likely to arise upon their conclusion. Therefore, a careful reading of these provisions makes it abundantly clear that they do not confer unfettered power to withhold the benefits .The exercise of such power is conditional upon the existence of “departmental or instituted in the manner judicial proceedings” contemplated under these provisions .

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27. This position stands authoritatively recognized in the

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judgment in Ghulam Mohi-ud-Din Lone (supra). The question before the Hon'ble Division Bench concerned wasas tothe effect of pendency of an FIR on the release of retiral benefits of a Government employee, particularly in thecontext of the scope and applicability of the relevant provisions of the Jammu and Kashmir Civil Service Regulations. The principle emerging from the said decision is that mere pendency of an FIR under investigation cannot, by itself, be treated as equivalent to

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institution of departmental or judicial proceedings so as to attract the statutory consequences contemplated under the

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pension rules.

28. The said principle is attracted with greater force in the present case because the respondents themselves have not placed on record any material demonstrating that a departmental proceeding had been instituted against the applicant before his retirement. On the contrary, it is significant that the respondents themselves, in their reply, have categoricallystated that no charge-sheet, draft articles of charge or other relevant documents had been received for initiating consequential departmental proceedings against the applicant.

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29. Equally, no material has been brought on record to establish that a charge sheet/ challan in the FIR had been presented before the competent criminal Court so as to constitute institution of judicial proceedings within the meaning of the applicable statutory provisions.It is noteworthy that the respondents themselves have pleaded in their response that they had sought the status of the FIR

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from the Anti-Corruption Bureau but had not received the

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requisite response. Thus, the material placed before this Tribunal does not establish that, as on the date of the applicant's retirement on 31.05.2023, any criminal proceeding had been instituted before the competent Court. Consequently, in absence of presentation of challan/ charge-sheet before the competent criminal Court, the pendency of the FIR and investigation thereunder, by itself, cannot be treated as institution of ‘judicial proceedings’ for the purpose of withholding the applicant’s retiral benefits under the applicable This distinction assumes statutory provisions. significance where the service regulations themselves prescribe the circumstances and the conditions subject to

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which pensionary or retiral benefits may be withheld.

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30. The respondents' reliance upon the pendency of the criminal case, therefore, cannot by itself furnish a lawful basis for indefinite withholding of the applicant's retiral benefits. The mere fact that allegations were under

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investigation does not dispense with the statutory requirements governing withholding of pension and gratuity.

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31. The said constitutional principle reinforces the conclusion

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that the respondents must demonstrate the existence of lawful authority for withholding the applicant's retiral benefits. Mere administrative apprehension arising out of

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a pending investigation cannot substitute such authority.

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An administrative decision cannot enlarge the circumstances in which an employee’s earned retiral benefits may be lawfully be withheld beyond what is contemplated by the applicable regulations. In this regard,

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the judgment in Dev Prakash Tewari (supra) is relevant for the broader proposition that the power of the employer

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to affect retiral benefits must be traceable to the statutory

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rules governing the employee. The Hon'ble Supreme Court considered the consequences of continuation of

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disciplinary proceedings after retirement in the absence of enabling statutory provisions.

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32. The respondents have also referred to the fact that the applicant's service record cannot be regarded as unblemished merely because an FIR was pending against him. This contention, however, does not answer the statutory question arising in the present case. The Tribunal is not called upon to adjudicate upon the allegations contained in the FIR or to express any opinion regarding

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the guilt or innocence of the applicant. The limited question is whether the existence of the FIR and investigation, without more, authorized withholding of retiral benefits under the applicable service regulations.

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33. On the material available on record, the answer is in the

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negative .

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34. The applicant's claim for release of retiral benefits must,

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however, be confined to those benefits which are otherwise admissible to him under the applicable rules. Any amount already released, including provisional pension, shall naturally be duly accounted for and adjusted while calculating the balance payable.

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35. As regards gratuity, pension, GPF, leave salary/leave encashment and other retiral dues, the respondents are required to examine the admissibility of each component under the applicable service rules. They cannot withhold such benefits merely by relying upon the pendency of FIR No. 23/2022, in the absence of the statutory circumstances which permit such withholding.

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36. The next issue concerns the treatment of the period of suspension from 01.08.2022 to 31.05.2023. The applicant seeks a direction that the said period be treated as period spent on duty. The record establishes that this Tribunal had already considered the question of continuation of suspension in O.A. No. 1182/2022 and, vide order dated 08.05.2023, directed the competent authority to review the suspension in the light of the Government instructions appended to Rule 31 vide SRO 616 dated 20.09.1978 and to pass a speaking order.

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37. The record placed before us does not disclose that any speaking order determining the treatment of the

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suspension period in terms of the aforesaid direction has been produced. The applicant's grievance in this regard, therefore, cannot be brushed aside.

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38. At the same time, the Tribunal would not be justified in directing, merely on the basis of the material presently before us, that the entire period of suspension shall automatically be treated as duty. The treatment of the suspension period involves consideration of the applicable

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service rules and the circumstances in which the was ordered and continued. That suspension determination is required to be undertaken by the competent authority.

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39. The competent authority shall accordingly consider the entire period from 01.08.2022 to 31.05.2023 and determine its treatment for the purpose of pay, service, pension and other consequential benefits, strictly in accordance with the applicable rules and the Government instructions governing suspension, while keeping in view

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the order dated 08.05.2023 passed by this Tribunal in

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O.A. No. 1182/2022.

40. Such determination shall not be kept pending merely because FIR No. 23/2022 remains under investigation.

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The competent authority shall pass a reasoned and speaking order and communicate the same to the applicant.

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41. As regards interest, the applicant has claimed interest at the rate of 9% per annum compounded annually. Having regard to the nature of the claim and the overall facts and circumstances of the case available on record, interest rate of 6% per annum,simple, interest on the admissible retiral benefits which have remained unpaid meet the ends of justice. The respondents cannot be permitted to retain amounts lawfully due to the applicant indefinitely without consequence.

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42. Such interest shall be calculated from the date on which the respective amounts became payable until the date of actual payment,subject to adjustment of any amount already paid.

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43. The respondents are directed to release to the applicant all admissible retiral benefits, including pensionary benefits, gratuity, GPF, leave salary/leave encashment and other retiral dues, which are otherwise payable to him under the applicable rules, after adjustment of the amounts already released, including provisional pension, if applicable. The respondents shall not withhold such benefits merely on the ground of pendency of FIR No. 23/2022, unless withholding is otherwise authorized by the applicable statutory provisions.

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44. If, on scrutiny, any particular component of the retirement benefits is found to be lawfully withholding under any specific statutory provision, the respondent shall record the precise statutory basis for such withholding in the order passed pursuant to these directions. Mere reference to the pendency of an FIR shall not constitute sufficient justification.

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45. The respondents shall complete the aforesaid exercise and

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release the admissible retiral benefits to the applicant

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within a period of eight weeks from the date of receipt of

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a copy of this order.

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46. It is made clear that nothing contained in this order shall

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be construed as an expression of opinion on the merits of FIR No. 23/2022 or upon the culpability or otherwise of

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the applicant in the criminal proceedings/investigation.

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47. For the foregoing reasons, the Original Application is,

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accordingly, allowed in the above terms .

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48. There shall be no order as to costs.

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The Registry shall consign the record to the Record Room

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after due compliance.
(JUSTICE RITU TAGORE)
Member(Judl.)

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15-09-2026 DEVENDRA TRIPATHI

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Ravinder Singh v. Public Work Department (R&B)

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Ravinder Singh v. Public Work Department (R&B)

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