In the recent case of Gurmail Singh vs Punjab Water Supply and Sewerage, the high court of Punjab and Haryana have stated the position with respect to continuation of disciplinary proceedings after the retirement of an employee.
In the present writ petition the grievance of the petitioner is that the petitioner has already retired on attaining the age of superannuation on 30.04.2008, but his pensionary benefits, in respect of the service which the petitioner has rendered with the respondent, have been withheld only due to the pendency of an FIR No. 36 dated 06.06.2003.
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The facts leading to the filing of the present writ petition are that while working as a Sub Divisional Officer with the respondent-Board, an FIR No. 36 dated 06.06.2003 was registered against the petitioner by the Vigilance Bureau, Punjab for offences under Sections 420, 409, 467, 468, 471, 477 and 120-B of the Indian Penal Code as well as under Section 13 (1) read with Section 13(2) of Prevention of Corruption Act, 1988. Immediately upon the registration of the said FIR the petitioner was suspended but was later on reinstated on 30.10.2003 pending the criminal proceedings.
Read the judgment here.
The position in CWP No. 1464 of 2017 similar and hence the writ petitions were combined. It is an admitted case that the sanction to prosecute the petitioner, which was granted by the respondent-Department, was challenged by the petitioner by filing CWP No. 618 of 2015, wherein, the operation of the sanction to prosecute has already been stayed and therefore, no proceedings have been undertaken in respect of the FIR registered against the petitioner in CWP No. 1464 of 2017. Nothing has been placed on record by learned counsel for the respondents to show that at any given point of time, prior to the retirement of the petitioner, any Challan was presented before the Competent Court of law so as to initiate criminal proceedings against the petitioner. Therefore in the absence of any material, the learned counsel for the petitioner had argued that at the time of retirement of the petitioner in CWP No. 1464 of 2017, only an FIR was pending and there was no Challan presented against the petitioner so as to treat pending FIR as criminal proceedings pending against the petitioner so as to give jurisdiction to the respondents to withhold the pensionary benefits of the petitioner.
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Thus the issue before this Court in the present writ petition is whether the action of the respondents in withholding the gratuity of the petitioner keeping in view of the pendency of the FIR No. 36 dated 06.06.2003 is justified or not?
First question which needs to be decided is whether on the date of the retirement of the petitioner i.e. 30.04.2008 whether any criminal proceedings were pending against the petitioner so as to give the jurisdiction to the respondent-State to withhold the pensionary benefits i.e. gratuity of the petitioner.
It is an admitted case that the FIR No. 36 dated 06.06.2003 was pending against the petitioner at the time of retirement, but the Challan in the said FIR was presented against the petitioner in the year 2013, which is clear from the reply filed by respondent No.2. That being so, on the day when the petitioner retired after attaining the age of superannuation on 30.04.2008 only the FIR 4 of 12 CWP No. 21524 of 2012(O&M) and No. 36 dated 06.06.2003 was pending, which was being investigated. The question that can mere pendency of an FIR on the date of retirement give jurisdiction to the respondents to withhold the retiral benefits on the ground that the criminal proceedings are pending is to be decided in the present writ petition
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In the landmark supreme court case of Union of India Vs. K.V. Jankiraman[1]the question of law was as to when a proceedings are deemed to be pending against an employee in respect of the departmental inquiry as well as in respect of the criminal proceedings so as to give jurisdiction to the department to withhold the benefits. Thus the Supreme court held that it is only in case a charge-sheet is served upon a delinquent employee during the departmental proceedings, the departmental inquiry is stated to be pending against an employee, which will give right to the respondents to take an action against the employee in accordance with law. Similarly, where a Challan has been presented against a person in the criminal proceedings, the criminal proceedings are to be treated as pending against the said person so as to give jurisdiction to the employer to take action against an employee.
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It was held that The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any chargememo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Thus “consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannotbe withheld merely on the ground of pendency of a disciplinary or criminal proceeding against an official”
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In the present casetherfore, it is admitted by the respondent that only an FIR No. 36 dated 06.06.2003 was pending against the petitioner at the time of his retirement, which was under investigation and the Challan was presented only on 25.06.2013 which was after the retirement of the petitioner. As no Challan was presented against the petitioner in FIR No. 36 dated 06.06.2003 upto the date of his retirement, it cannot be said that any criminal proceedings were pending against the petitioner on the date of his retirement so as to give jurisdiction to the respondent/State to withhold the gratuity of the petitioner.
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In the case of Atam Bodh Sharma Vs. State of Haryanaand Others it was held that mere pendency of an FIR without there being any Challan presented in the said FIR on the date of the retirement, there is no jurisdiction with the department to withhold the pensionary benefits of an employee. This Court relied upon the judgment in K.V. Jankiraman’s case(supra) to direct the respondents to release the pensionary benefits of an employee, which were being withheld only due to the pendency of an FIR.
In Para 4 of the aforesaid judgment, it is observed as follows:
“4. Rule 2(2) of the Pension Rules, Clause (b) clearly mentions thus:
“2(2)(b) the Government further reserves to themselves the right to withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and right of ordering the recovery from the pension of the whole or part of any pecuniary loss caused to Government. If, in a departmental or judicial proceeding, the petitioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re- employment after retirement.
A reading thereof clearly indicates that the disciplinary authority, consequent upon the result of the departmental or judicial proceedings, should record a finding whether the delinquent has committed grave misconduct or negligence during the period of his service including the service rendered upon re- employment after retirement.
In the present case also there is no conclusion of the trial. Even the challan has not been presented. Therefore, the respondents merely on the basis of registration of the FIR on 21.08.2003, are not within their rights to withhold the pension or pensionary benefits of the petitioner. Therefore, the impugned order dated 15/22.2.2006 (P-7) is liable to be set aside.”
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Thus in the present case, only the FIR was pending against the petitioner and no Challan had been presented against the petitioner and upto the date of his retirement. The respondents have not been able to show any Rule or Regulation which gives the jurisdiction to the respondent/State to withhold the retiral benefits merely upon the registration of an FIR. The jurisdiction with the respondents is only to withhold the benefits in case of the pendency of the criminal proceedings and the criminal proceedings can only be deemed to be pending on the date when a Challan is presented against the accused. Hence, in the case of the petitioner withholding of their benefits by the respondents was beyond their jurisdiction.
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Allowing the appeal, the Bench quashed the disciplinary proceedings and directed the respondent to pay arrears of salary and allowances payable to the appellant and also to pay him his post-retirement benefits.
For case specific advice, please contact best Service Matter expert lawyers advocates taking cases relating to disciplinary proceedings after retirement in Punjab Haryana High Court Chandigarh.
This post is written by Rachita Yedhula.
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[1]1991(3) SCT 317
