Biresh Singh Baghel vs State Of M.P. & Ors.

9(6)(b) judicial proceedings shall be deemed to be instituted -

(i)in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

(ii)in the case of civil proceedings, on the date the plaint is presented in the Court.

64. Provisional pension where departmental or judicial proceeding

may be pending :-

(1)

(a) In respect of a Government servant referred to in sub-rule (4) of rule 9, the Head of office shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant, or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension;

(b)

The provisional pension shall be drawn on establishment pay bill and paid to the retired Government servant by the Head of office during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority;

(c)

No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon;

provided that where departmental proceedings have been instituted under rule 16 of the Madhya Pradesh Civil Services (Classification Control and Appeal) Rules, 1966, for imposing any of the penalties specified in clause (i), (ii) and (iv) of rule 10 of the said rules, the payment of provisional gratuity to the extent of 90% of the gratuities admissible under the rules shall also be authorized to be paid to the Government servant.

(2)

Provisional gratuity shall be drawn on establishment pay bill and paid to the retired Government servant by the Head of office after adjusting dues mentioned in sub-rule (2) of rule 60 under intimation to audit office. Payment of provisional pension/ gratuity made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings, but recovery shall not be made where the pension/gratuity finally sanctioned is less than the provisional pension/gratuity or the pension/gratuity is reduced or withheld either permanently or for a specified period.

Note: Grant of provisional pension under rule 64 is mandatory even if departmental or judicial proceedings is continued.". In view of same, Govt. Advocate appearing for State submitted that judicial proceedings are pending, therefore, as per Rule 64 of the Rules, 1976, only provisional pension is to be paid.

Provisional pension where department or judicial proceedings may be pending.

However, leaving apart heading of Rule 64, body of Rule 64 lays down that Rule 64 will be applicable in respect of government servants referred to in Sub-rule 4 of Rule 9. Sub-rule 4 of Rule 9 uses the words ''departmental or judicial proceedings are instituted" and not words "departmental or judicial proceedings are pending". Meaning of word "institution of proceedings" is defined in Rule 9(6). In case of departmental proceedings, same is said to be instituted on date on which statement of charges is issued to government servant or pensioner or on date when government servant is placed under suspension. In cases where FIRs are registered against government servant, criminal proceedings is said to have been instituted on date when Magistrate takes cognizance of police report or complaint. In happening of event under Rule 9(6), Rule 9(4) and Rule 64 of Rules of 1976 can be applied. In present case, cognizance of offence has not been taken on date of retirement of petitioner, therefore, no judicial proceedings were instituted against petitioner and resort to Rule 64 of Rules of 1976 could not be made by respondent authority.