Dasrathi Sahu vs State of Chhattisgarh and another

Satish K. Agnihotri, J.—By this petition, the petitioner seeks quashing of the impugned letter dated 8-12-2009 (Annexure P-1) and further, a direction to the respondent authorities to release the complete gratuity amount with interest and to fix the final pensionary amount of the petitioner. The facts, in nutshell, as projected by the petitioner is that the petitioner was initially appointed with the respondent No. 2 on 2-12-1967 on the post of Clerk. Thereafter, he was promoted as Secretary and thereafter to the post of Assistant Director. Subsequently, he retired from service on 31-12-2005. After retirement, the petitioner has not been paid his gratuity amount of Rs. 2,19,830/- and his pension has also not been fixed. The petitioner is only getting interim pension.

Shri Pradhan, learned Counsel appearing for the petitioner submits that the petitioner has been issued no-dues-certificate but without any rhyme or reason, his gratuity amount has been withheld only on the ground that complaint is pending against him. Whereas, in fact, the complaint has not yet been registered or any cognizance has been taken which is evident from the order sheets (Annexure P-16). Shri Pradhan next contends that even otherwise, the petitioner has retired way back 31-12-2005 and the alleged complaint was filed on 23-5-2008.

On the other hand, Shri Thakur, learned Counsel appearing for the respondent No. 2 submits that the gratuity amount of the petitioner has been withheld on account of the pendency of judicial proceedings against the petitioner in the Court of Judicial Magistrate First Class, Saraipali for embezzlement of Rs. 10,18,290/- (Annexure R-4). He further submits that the provisions of Chhattisgarh Civil Services (Pension) Rules, 1976 (for short ''the Rules, 1976'') is applicable to the employees of the respondent-Board. Shri Thakur next contends that Rule 64 of the Rules, 1976, provides for withholding of gratuity until the conclusion of the departmental or judicial proceedings and passing of the final order thereon.

Heard learned Counsel appearing for the parties, perused the pleadings and documents appended thereto.

There is no dispute that no Departmental Enquiry is pending. After retirement of the petitioner on 31-12-2005, a purported complaint was filed on 23-5-2008 (Annexure R-4), the same is at the stage of recording of evidence. No summons/notice has been issued till date and as such, it cannot be held that a judicial proceeding is pending. On the last date of hearing, i.e., 11-11-2010, a copy of the application was supplied and before that, examination of complainant''s witnesses was not over. Under Rule 64 of the Rules, 1976, gratuity and pension can be withheld when there is a Departmental Enquiry or judicial proceedings, till conclusion of the proceeding and issue of final order.

Rule 64 of the Rules, 1976 read as under:--

Provisional pension where departmental or judicial proceeding may be pending.-- (1) (a) In respect of Government servants refer to in sub-rule (4) of Rule 9 the Head of Office shall authorize the payment of provisional pension not exceeding the maximum pension and 50% gratuity taking into consideration the gravity of charges levelled against such Government servant, which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant 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.

(b) The provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority.

(c) Provisional gratuity shall be drawn on establishment pay bill and paid to 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 benefit sanctioned to such Government servant upon conclusion of such proceedings, but no recovery shall 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.

''Pending judicial proceeding'' is defined in Advanced Law Lexicon, P. Ramanath Aiyar, 3rd Edition 2005, as under:--

Pending judicial proceeding.-- A judicial proceeding is said to be pending--

(A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise;

(B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898, or any other law--

(i) where it relates to the commission of an offence, when the charge-sheet or challan is filed, or when the Court issues summons or warrant, as the case may be against the accused, and

(ii) in any other case, when the Court takes cognizance of the matter to which the proceeding relates, and in the case of a civil or criminal proceeding. [Contempt of Courts Act (70 of 1971), Section 3 Explanation (a)].

In the case on hand, the Court has not taken cognizance as no summons/notice/warrant has been issued on the basis of complaint. Thus, filing of the complaint cannot be held that a judicial proceeding is pending. Thus, the pensionary benefits and gratuity cannot be withheld under the provisions of Rule 64 of the Rules, 1976, as aforestated.

The word ''complaint'' has been defined u/s 2(d) of the Code of Criminal Procedure, 1973, which reads as under:--

''Complaint'' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Cognizance of the offence would be taken only after having examined the complaint, a summon/warrant is issued. The Supreme Court, in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and Others, held as under:--

The expression "cognizance" has not been defined in the code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of and when used with reference to a Court or a Judge, it connotes "to take notice of judicially". It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

''Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can-be said to have taken cognizance.

Chapter XV (Sections 200-203) relates to "Complaints to Magistrates" and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry u/s 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry u/s 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused.

Thus, in the case on hand, it cannot be held that a judicial proceeding was pending against the petitioner as no action has been taken on the complaint made before the Magistrate, as no summons or warrant has been issued till date.

In view of the foregoing, when the petitioner became entitled to pensionary benefit and gratuity after the date of retirement in January, 2006 itself, there was no reason to wait till May, 2008 when the alleged complaint was filed and on the said complaint, no cognizance has been taken by issuing summons/notice or warrant as required under the provisions of law. Thus, the action of the respondent authorities by withholding the gratuity and retiral benefits, is unsustainable in law.

For the reasons mentioned hereinabove, the letter dated 8-12-2009 (Annexure P-1) is quashed. The respondent No. 2 is directed to release all the retiral dues including gratuity with interest, as admissible under the provisions of law, within a period of six weeks from today. The petition is allowed. There shall be no order as to costs.