Ghulam Mohd Dar vs Union Territory Of J&K & Ors.

JUSTICE RITU TAGORE, MEMBER [JUDL.]

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, calling in question Office Order No. 150 of 2023 dated 11.08.2023 issued by respondent No. 2, whereby his claim for release of leave salary has been rejected. The applicant seeks quashing of the said order and a consequential direction to the respondents to release the leave salary payable to him, along with the arrears and interest, in accordance with law.

The brief facts necessary for adjudication of the controversy are that the applicant served in the Health and Medical Education Department and ultimately retired from Government service on superannuation with effect from 30.09.2017. The Pension Payment Order issued by the Office of the Accountant General, J&K, records the applicant as having retired on 30.09.2017 from the post of Senior Assistant. The pension authorization also records the pensionary benefits sanctioned in his favour.

The applicant's grievance is confined to the non-release of the amount payable to him towards leave salary/cash equivalent of earned leave. According to the applicant, despite his retirement and the release of his pensionary benefits, the amount payable towards leave salary remained unpaid. He submitted representations to the respondents seeking release of the said amount. In one such representation, the applicant specifically stated that he had retired from active service in 2017 and sought Central Administrative Tribunal^{release of the salary for the leave period in terms of the} Seventh Pay Commission.

The record further discloses that the applicant had earlier approached this Tribunal in O.A. No. 1172/2022 seeking consideration/release of his leave salary. The said matter was considered by the Tribunal on 15.12.2022, pursuant to which the respondents were directed to consider the release of the applicant's leave salary in accordance with law and to pass a reasoned and speaking order within the stipulated period. The respondents thereafter issued the impugned Office Order No. 150 of 2023 dated 11.08.2023. The order itself expressly refers to the aforesaid proceedings and the direction issued by this Tribunal.

In the impugned order dated 11.08.2023, the respondents recorded that the applicant had been involved in the alleged forgery of Government creation orders and certain fake transfer orders issued from the office of the Chief Medical Officer, Bandipora, during the period when the Central Administrative Tribunal^{applicant was posted there. It was further stated that the} matter had allegedly caused loss to the Government exchequer and was being investigated by the Crime Branch Kashmir. On that basis, the respondents concluded that the applicant's claim for release of leave salary could not be entertained at that stage for want of the outcome of the criminal case pending against him.

The respondents have defended the impugned order by stating that the applicant was one of the accused in FIR No. 07/2013 registered under Sections 420, 467, 468, 471 and 120-B RPC read with Section 5(2) of the Prevention of Corruption Act in relation to alleged illegal and fraudulent appointments in the Health Department, District Bandipora. It is further stated that investigation by the Economic Offences Wing/Crime Branch has since been concluded and the challan has been presented before the competent Court, where the criminal proceedings are pending. The respondents contend that the pendency of such criminal proceedings constituted material available Central Administrative Tribunal^{before the competent authority while considering the} applicant's claim for release of leave salary.

It is further the stand of the respondents that, although no departmental proceedings are presently pending against the applicant, the pendency of criminal proceedings involving allegations of fraud, forgery and corruption justified the rejection of his claim. According to the respondents, the impugned order was passed after due consideration of the relevant material and does not suffer from any illegality or procedural infirmity.

During the pendency of the present proceedings, learned counsel appearing for the applicant placed on record a copy of Session Challan No. 37/2026 dated 11.03.2026, stated to have been presented before the competent criminal Court. The document is in Urdu; however, the English translation appended thereto reads that the date of return of the said challan under Sections 420, 468, 471 and 120-B RPC is 11.03.2026. Learned counsel relied upon the aforesaid document to demonstrate the criminal Central Administrative Tribunal^{proceedings have subsequently reached the stage of filing} of the charge sheet. The production of the document, merely establishes that the charge sheet has been presented and does not, by itself, establish that charges have been framed against the applicant by the competent criminal Court or otherwise establish the present stage of criminal proceedings.

I have heard learned counsel for the parties at length and carefully perused the pleadings, the documents placed on record, the impugned order, the earlier order passed by this Tribunal and the judgments relied upon by the parties.

The short question which arises for consideration is whether, in the facts and circumstances of the present case, the respondents were legally justified in withholding the applicant's leave salary merely on the ground that an FIR had been registered against him and the investigation was pending at the time of his retirement and whether the subsequent presentation of the challan in 2026 can retrospectively validate such withholding?

Central Administrative Tribunal^{11.Before adverting to the merits of the challenge raised in} the present Original Application, it would be appropriate to notice the relevant statutory provisions, which have a material bearing on the controversy involved herein.

Articles 168-A and 168-D of the Jammu and Kashmir 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 benefits, gratuity and the cash equivalent of earned leave.

Article 168-A of the Jammu and Kashmir Civil Service Regulations reads as under:

Article 168-D of the Jammu and Kashmir Civil Service Regulations provides as under:

Likewise, Rule 37(2)(v) of the Jammu and Kashmir Civil Services (Leave) Rules, 1979 lays down as under:

A conjoint reading of the Article 168-A and Article 168 -D makes it clear that the Government is entitled to order recovery from the pension of an employee of any amount representing losses found, in judicial or departmental proceedings, to have been caused to the Government by the negligence or fraud of such employee during his service. The rule further provides that if such proceedings are not instituted against the officer while he is in service or duty, such proceedings shall not be instituted without the sanction of the Government and shall be instituted within a year from the date he was last on duty and the proceedings must not pertain to an event which took place not more than one year before the date on which the officer was last on duty. Further, in terms of Article 168-D, the retired employee shall be entitled only to provisional pension during the pendency of such proceedings and no gratuity shall be paid until conclusion of the proceedings and issuance of final orders. It is, therefore, evident from the aforesaid provisions, that for denying pension or gratuity to an employee, it has to be established by the employer that either ‘departmental’ or ‘judicial’ proceedings are pending against the officer and it is only then, the employer can order payment of provisional pension and withholding of gratuity till the Central Administrative Tribunal^{time proceedings are concluded and final orders in this} regard are passed. Rule 37 (2) (v) empowers the competent authority to withhold the cash equivalent of earned leave where disciplinary or criminal proceedings are pending against a Government servant at the time of retirement and there exists a possibility of recovery of Government dues upon conclusion of such proceedings.

A careful reading of Articles 168-A and 168-D of the Jammu and Kashmir Civil Service Regulations makes it abundantly clear that the power to sanction provisional pension and withhold gratuity is not an independent or unbridled power. The exercise of such power is conditional upon the existence of “departmental or judicial proceedings” instituted in the manner contemplated under Article 168-A of the Regulations. In other words, Article 168-D does not operate in isolation but is attracted only when the statutory conditions prescribed under Article 168-A stand fulfilled. Unless such conditions exist, the embargo contemplated under Central Administrative Tribunal^{Article 168-D cannot legally be invoked.}

The controversy involved in the present case is not whether the Government possesses power to withhold retiral benefits. Such power undoubtedly exists. The real controversy is whether the statutory conditions precedent for exercise of such power stood satisfied on the date when the impugned order dated 11.08.2023 came to be passed. Therefore, the validity of the impugned action has to be examined strictly in the light of the conditions prescribed under Articles 168-A and 168-D of the Civil Service Regulations.

The legal position concerning the applicability of Articles 168-A and 168-D of the Jammu and Kashmir Civil Service Regulations, 1956 and Rule 37(2)(v) of the Jammu and Kashmir Civil Services (Leave) Rules, 1979 stands authoritatively settled by the judgment of the Hon'ble High Court in Ghulam Mohi-ud-Din Lone v. State of J&K & Ors., LPA No. 220/2019, decided on 11.12.2020.The factual matrix of the said case bears a Central Administrative Tribunal^{close resemblance to those obtaining in the present case.} In that case also, an FIR had been registered against the employee while he was in service, the FIR remained under investigation when he attained superannuation. The respondents, relying upon the pendency of FIR/ investigation had withheld his post-retiral benefits, including leave salary.

The question before the Hon’ble High Court, therefore, was whether mere registration and pendency of an FIR/investigation could justify withholding such benefits under the aforesaid statutory provisions.The Hon’ble Division Bench observed that, for appreciating the import of the relevant provisions, namely Articles 168-A and 168-D of the CSR and Rule 37(2)(v) of the Leave Rules, it was necessary to determine the meaning and scope of the expression ‘judicial proceedings’ and ‘departmental proceedings’as CSR does not define ‘judicial proceedings’. The Court further held that expression ‘judicial proceedings’ as distinct from ‘criminal Central Administrative Tribunal^{proceedings’ would encompass proceedings arising under} both civil and criminal law. In the context of criminal proceedings, such proceedings may be regarded as instituted when the criminal process is set in motion before a competent Court, including upon presentation of a complaint or a police report/charge-sheet, as the case may be.

The Hon'ble High Court held that, mere registration of an FIR and investigation by the investigating agency, however, do not amount to institution of judicial proceedings as such proceedings commence before a court competent to adjudicate upon and render a definitive judgment on the issues involved. The Court further noticed that, in the case before it, the challan had been presented only during the pendency of the appeal.

Applying the above said principle, the court held that on the date of appellant’s retirement on superannuation, the FIR was still under investigation and no charge- sheet had been presented before the competent court. Consequently, Central Administrative Tribunal^{no judicial proceedings, within the meaning of Articles} 168-A and 168-D of the CSR, could be said to have been instituted or pending against the appellant on the date of his retirement. The Hon’ble Court also noted that no departmental /disciplinary proceedings had been initiated against the employee and held that in the circumstances the respondents were not justified in withholding the employee’s post- retirement benefit except to the extent permissible under the applicable rules.

The aforesaid judgment further considered Rule 37(2)(v) of the Jammu and Kashmir Civil Services (Leave) Rules, 1979, which permits withholding of the whole or part of the cash equivalent of earned leave where a Government servant retires while under suspension or while disciplinary or criminal proceedings are pending against him, provided the competent authority is of the view that there is a possibility of some money becoming recoverable from him on conclusion of the proceedings. The Hon'ble High Court held that the rule was not Central Administrative Tribunal^{attracted where there were no disciplinary or criminal} proceedings pending on the date of retirement and where the competent authority had not recorded any satisfaction regarding the possibility of recovery of money from the employee.

The ratio of the said judgment squarely governs the controversy before me. The facts emerging from pleadings and the material placed on record are, to a substantial extent, not in dispute. It is an admitted position that applicant retired on 30.09.2017. The respondents' own case, as reflected in the impugned order, indicates that, prior to his retirement, the applicant’s case for release of his leave salary was forwarded by the concerned department. However, the amount was not released on the ground of his alleged involvement in cases relating to illegal and fraudulent appointments and transferorders made in the Health Department, District Bandipora.

In the reply filed before this Tribunal, the respondents have pleaded that the applicant is one of the accused in Central Administrative Tribunal^{FIR No 07/2013 registered under Sections 420, 467, 468,} 471 and 120-B RPC read with section 5(2) Of Prevention of Corruption Act. It is, however, not discernible either from the impugned order or from the reply that, as on the date of the applicant’s retirement, any challan or charge-sheet had been presented before competent criminal Court in respect of allegations in question except that the matter was, at that stage, under investigation by the Crime Branch.

On the other hand, the material subsequently placed on record by the applicant includes a document indicating the return date of the Session Challan No. 37/2026 as 11.03.2026, which appears to have been filed almost nine years after the applicant's retirement. The said document, however, does not by itself establish whether 11.03.2026 was the date of first presentation of the challan or merely a subsequent date fixed/recorded in relation to the proceedings.

It is also an admitted position that no departmental Central Administrative Tribunal^{proceedings were initiated against the applicant on the} basis of allegations referred to in the impugned order. The applicant has further categorically pleaded that certain retiral benefits have already been released to him, while remaining amount (gratuity fund) continues to remain unpaid. These assertions have not been specifically disputed by the respondents. Thus, the material available on record, discloses that non release of the amount in question was linked by the respondents to the criminal allegations against the applicant, although neither the impugned order nor the reply filed by the respondents indicates that any challan had been presented before the competent criminal Court as on the date of the applicant’s retirement. The pleadings of the respondents regarding presentation of challan are also not accompanied by any specific date or supporting material establishing when such presentation was made.

The distinction between registration/investigation of an FIR and institution of ‘judicial proceedings’ is therefore material. On the date of the applicant's retirement, there is Central Administrative Tribunal^{nothing on record to demonstrate that a complaint or} charge-sheet had been presented before the competent criminal Court so as to attract Articles 168-A and 168-D of the CSR. The subsequent presentation of a challan/ charge–sheet before the competent criminal court in 2026, though undoubtedly a relevant subsequent development cannot retrospectively convert the legal character of the proceedings as they stood on the date of the applicant’s retirement. An investigation pending in an FIR cannot, by reason of subsequent filing of a charge sheet, be deemed to have constituted or been converted into judicial proceedings as on an anterior date. The material consideration, therefore, is the status of criminal proceedings on the date of retirement, and not the subsequent development of filing of the challan.

There is another aspect which assumes significance. Article 168-A(c) of the CSR specifically provides that judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with sub-Central Administrative Tribunal^{clauses (ii) and (iii) of clause (a). The provision thus} places statutory conditions upon the institution of such post-retirement judicial proceedings insofar as they are sought to be relied upon for action under Article 168-A. The Division Bench in Ghulam Mohi-ud-Din Lone(supra) specifically explained that the statutory scheme of Articles 168-A and 168-D has to be satisfied before pensionary benefits can be withheld.

In the present case, the allegations admittedly relate to events forming part of the FIR registered in the year 2013, whereas the applicant retired in September, 2017 and the challan was presented only in March, 2026. The respondents have not placed on record any material demonstrating compliance with the statutory conditions contained in Article 168-A which would permit withholding of the applicant's post-retiral benefits on the basis of such subsequently instituted proceedings.

The respondents have also not recorded in the impugned order any satisfaction that, within the meaning of Rule Central Administrative Tribunal^{37(2)(v) of the Leave Rules, there was a possibility of} some money becoming recoverable from the applicant on conclusion of the criminal proceedings. The impugned order proceeds essentially on the existence of the FIR/investigation and the alleged involvement of the applicant in the offences. That, by itself, does not satisfy the requirements of the said Rule.

The principle that pensionary benefits cannot be withheld except in accordance with statutory authority is also well settled. In State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr., (2013) 12 SCC 210. The Hon’ble Supreme Court held that pension is a valuable right constituting ‘property’ within the meaning of Article 300-A of the Constitution and that pension, gratuity and even leave encashment cannot be withheld in the absence of statutory authority. The Court further held that, in the absence of statutory authority, such benefits cannot be withheld merely on the basis of executive instructions. The judgment also specifically considered the question of Central Administrative Tribunal^{withholding leave encashment during pendency of} criminal/departmental proceedings.

The said principle has particular relevance in the present case because the applicant's pensionary authorization was issued by the Accountant General and his pensionary benefits were duly sanctioned, while the respondents continued to withhold the amount payable towards leave salary. The respondents have not demonstrated that the statutory conditions prescribed under Rule 37(2)(v) were satisfied so as to authorize withholding of the leave salary merely on the ground that an FIR was under investigation.

The judgment in Dev Prakash Tewari v. U.P. Cooperative Institutional Service Board, (2014) 7 SCC 260, also relied upon in the material placed before me, reiterates the principle that the employer must possess statutory authority to continue proceedings or to effect reduction from retiral benefits after superannuation. In the absence of such authority, retiral benefits cannot be curtailed merely on the basis of an alleged misconduct. Central Administrative Tribunal^{The factual setting of that judgment is different, but the} principle regarding the necessity of statutory authority remains relevant.

The respondents have relied upon the seriousness of the allegations contained in the criminal case. There can be no doubt that allegations of fraud, forgery or corruption are serious. However, seriousness of the allegations cannot by itself confer a power upon the administrative authority which the applicable statutory rules do not confer. The question before me is not whether the allegations against the applicant require adjudication by the competent criminal Court; they plainly do. The question is whether such allegations, at the stage and in the circumstances obtaining on the date of retirement, authorized withholding of the leave salary. On the applicable statutory framework and the binding precedent noticed above, the answer must be in the negative.

The subsequent presentation of the challan although a significant development, cannot be given retrospective Central Administrative Tribunal^{effect so as to constitute institution of criminal} proceedings as on the date of applicant’s retirement and, therefore, does not alter the position obtaining on that day. At the most, it establishes the presentation of a challan on that date; it does not establish that charges have been framed by the competent criminal Court. More importantly, such action as may otherwise be permissible in accordance with law, subject to satisfaction of the statutory conditions under Article 168-A and Article 168-D.

I am also unable to accept the submission that the pendency of the criminal case, by itself, would justify withholding of leave salary indefinitely until conclusion of the criminal trial. The Division Bench in Ghulam Mohi-ud-Din Lone(supra) specifically considered the interaction between Article 168-D and Rule 37(2)(v) and held that leave salary could not be denied where the statutory conditions for invoking those provisions were not satisfied.

Central Administrative Tribunal^{38.I am conscious that the respondents have referred to the} criminal proceedings as involving allegations relating to Government creation orders and fake transfer orders and have asserted that the matter resulted in loss to the Government exchequer. Those allegations are matters for adjudication in the criminal proceedings. Nothing stated in the present order shall be understood as an expression of opinion upon the guilt or innocence of the applicant or upon the merits of the criminal case.

The present adjudication is confined to the legality of the withholding of the applicant's leave salary. On that issue, the impugned Office Order No. 150 of 2023 dated 11.08.2023 cannot be sustained. The order proceeds on the premise that the pendency of the investigation/criminal case was sufficient to deny the applicant's claim, without demonstrating that the statutory requirements of Articles 168-A and 168-D of the CSR or Rule 37(2)(v) of the Leave Rules were satisfied.

It is also relevant that the respondents were directed by Central Administrative Tribunal^{this Tribunal in the earlier proceedings to consider the} applicant's claim and pass a reasoned and speaking order. A speaking order is required not merely to record the existence of an FIR but to disclose the statutory basis on which an accrued retiral benefit is being withheld. The impugned order does not undertake that exercise.

In view of the foregoing discussion, and particularly in view of the ratio laid down by the Hon'ble High Court in Ghulam Mohi-ud-Din Lone(supra), I am of the considered view that the applicant could not have been denied the leave salary merely on the ground that an FIR was under investigation against him at the time of his retirement and without recording the requisite satisfaction contemplated by Rule 37(2)(v) regarding the possibility of recovery of Government dues.

Accordingly, the impugned Office Order No. 150 of 2023 dated 11.08.2023, whereby the claim of the applicant for release of leave salary has been declined, is hereby quashed and set aside, the same having been Central Administrative Tribunal^{passed at a point of time when no departmental} proceedings had been instituted against the applicant and no judicial proceedings within the meaning of applicable provisions of J&K CSR, had been instituted pursuant to the criminal case.

The subsequent presentation of charge- sheet before the competent criminal court, though a relevant subsequent development, cannot validate the impugned order retrospectively. However, the respondents shall be at liberty to take such action, if any, as may be independently permissible in law on the basis of the subsequent institution of judicial proceedings, provided all statutory requirements under Article 168-A and other applicable provisions are satisfied. The present order shall not be construed as validating the impugned order retrospectively.

Consequently, the respondents are directed to process and release in favour of the applicant the admissible amount of leave salary/cash equivalent of earned leave, including the Central Administrative Tribunal^{arrears payable to him, in accordance with the applicable} rules and pay revision applicable to him at the time such amount became due, within a period of 06 weeks from the date of receipt of a certified copy of this order. In the event of failure to comply with the aforesaid direction within the stipulated period, the unpaid admissible amount shall carry interest at the rate of 6% per annum from the expiry of the aforesaid period of six weeks until the date of actual payment. Any amount, if already paid to the applicant towards the leave salary, shall be duly adjusted while calculating the amount payable.

It is, however, made clear that such release shall be without prejudice to the rights of the respondents, in accordance with law , to take appropriate action in respect of any loss, if any caused to the Government by reason of negligence or fraud attributable to the applicant , if the pending criminal proceedings culminate in a finding of guilt and the consequences thereof otherwise attract the provisions of Article 168-A of J& K Civil Service Central Administrative Tribunal^Regulations.

In the event the respondents propose to recover any amount from the applicant on the aforesaid ground, No recovery shall be effected merely on the basis of the conviction, unless the statutory requirements for recovery under Article 168-A are independently satisfied, including determination of the loss, if any, caused to the Government and the applicant's liability therefor in accordance with law. The competent authority shall first determine, in accordance with the applicable statutory rules and procedure , whether any loss in fact been caused to the Government, the quantum thereof, and the applicants liability therefor .

Before taking any such recovery action, the applicant shall be served with a notice setting out the alleged loss, the basis and the quantum of the proposed recovery and the grounds on which the proposed action is sought to be taken , and shall be afforded a reasonable opportunity to submit his objections . Upon consideration of the material Central Administrative Tribunal^{on record and the objections submitted by the applicant,} the competent authority shall pass a reasoned and speaking order in accordance with law. Any such exercise undertaken by the respondents pursuant to the liberty granted herein shall be independent of the impugned order and shall not be construed as treating the impugned order as having been validated by the subsequent filing of the charge-sheet.

Further, it is made clear that nothing contained in the present order shall prejudice the criminal proceedings pending before the competent Court, nor shall this Tribunal express any opinion regarding the merits of the allegations against the applicant. The competent criminal Court shall adjudicate the criminal case independently in accordance with law.

All other contentions raised by the parties, insofar as they are not specifically dealt with herein, stand disposed of in the aforesaid terms.

The Original Application is allowed and stands Central Administrative Tribunal^{disposed of in the aforesaid terms.}

There shall be no order as to costs.

Registry shall consign the record to the Record Room after due compliance.