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Judgment
Gopal Krishan Vyas, J.—In this writ petition filed by the petitioner, the petitioner has prayed for direction to the respondents to pay all service benefits on account of his retirement w.e.f. 31.8.2008 including pension, amount of gratuity, commutation, leave encashment with 12% interest and cost.
As per the facts of the cased, the petitioner was retired from service after attaining the age of superannuation from the post of Senior Assistant Branch Officer-II, National Insurance Company Ltd., Jodhpur on 31.8.2008. During his service tenure a criminal case under the Prevention of Corruption Act was registered against him, therefore, vide order dated 24.12.2001 he was placed under suspension. The 50% of the salary was paid to the petitioner as subsistence allowance and it was increased to 75% after completion of 6 months.
In the criminal case after full-fledged trial vide judgment dated 26.8.2008, the petitioner was acquitted from the charges leveled against him under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 by the Sessions Judge, Anti Corruption Cases, Udaipur.
After acquittal from the competent criminal trial court, the petitioner filed an application with the request that he may be permitted to join the duties, but no order was passed by the respondents to take him on duty. However, by a communication dated 28.7.2008 the petitioner was directed to supply the information mentioned therein. In pursuance to communication dated 18.7.2008, the petitioner filed necessary affidavit but no order for joining was passed by the respondents and before the petitioner could join duties he attained age of superannuation, therefore, vide order dated 31.8.2008, the petitioner was retired from service when he was under suspension.
The learned counsel for the petitioner submits that even though he was retired in the month of August, 2008 but his retiral benefits were not paid in spite of the fact that petitioner was acquitted from the charges levelled against him in criminal case registered against him under Prevention of Corruption Act. Number of representations were filed by the petitioner, but respondents did not release his retiral benefits, but petitioner learnt from reliable sources that leave to appeal has been filed against the judgment dated 26.8.2008 by the State, therefore the retiral benefits are withheld by the respondents.
The learned counsel for the petitioner argued that when petitioner has been acquitted from all the charges levelled against him after trial in a criminal case then there is no occasion or ground left with the respondents to deny all the retiral benefits, but the respondents are not releasing his retiral benefits only on the ground that the leave to appeal has been filed against the judgment of acquittal before this Court. It is submitted that the ground for not releasing the retiral benefits in not sustainable in law. According to the petitioner mere pendency of criminal appeal does not create any right to the respondents to deny retiral benefits after acquittal.
The learned counsel for the petitioner lastly argued that it is a case of illegal denial of retiral benefits after superannuation, therefore, the respondents may kindly be directed to release his retiral benefits forthwith. In support of his argument, learned counsel for the petitioner invited my attention towards the judgment of the Hon''ble Supreme Court delivered in the case of Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu (Dead) by L. Rs., AIR 1977 SC 1268 : (1977) 2 SCC 181 : (1977) 2 SCR 636 and submits that in that case the Hon''ble Supreme Court held that grant of certificate of fitness to appeal against the decree does not take away the finality of the judgment, therefore, the denial of retiral benefits to the petitioner solely on the ground of pendency of the criminal appeal against acquittal is against the principles of natural justice, therefore, direction may be issued to release all the retiral benefits.
Per contra, the learned counsel appearing for the respondents submits that as per the scheme issued by the Government of India there is provisions for grant of provisional pension in the event of pendency of criminal proceedings. The said provision is provided in para No. 45 of the scheme, therefore, the petitioner is not entitled for any retiral benefits till disposal of the appeal because pendency of appeal against the judgment of acquittal in criminal proceedings. In support of his contention, the learned counsel for the respondents invited my attention towards the judgment of the Delhi High Court delivered in the case of Lakhminder Singh Brar [WP (C) 13191/2009], decided on 16.9.2010 and submits that in the said judgment the Division Bench of the Delhi High Court dismissed the appeal filed by the petitioner against the order of Central Administrative Tribunal, Principal Bench, New Delhi passed in OA No. 991/2007 in which the tribunal held that till pendency of appeal against acquittal, the retiral benefits cannot be released and submits that the writ petition may be dismissed.
After hearing the learned counsel for the parties I have perused the entire writ petition and reply filed by the respondents, so also considered the condition No. 45 of the General Conditions of Chapter IX of the General Insurance Employees Pension Scheme, 1995, so also the judgment of the Hon''ble Supreme Court and Delhi High Court.
Admittedly, the petitioner was superannuated from service after attaining the age of superannuation on 31.8.2008. Thereafter, provisional pension was released and other benefits are not released while taking invoking the condition No. 45(2) of the General Insurance Employees Pension Scheme, 1995. It is true that appeal against the judgment of acquittal is pending but whether on that count retiral benefits can be withheld for that first of all I have perused the condition No. 45(2) of the Pension Scheme, 1995, which reads as under:-
"45. Provisional Pension : (1) An employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued, a provisional pension equal to the maximum pension which would have been admissible to him, would be allowed subject to adjustment against final retirement benefits sanctioned to him, upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld etc., either permanently or for a specified period.
(2) In such cases the gratuity shall not be paid to such an employee until the conclusion of the proceedings against him. The gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings. Any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable.
Explanation: In this chapter,
(a) The expression serious crime includes an crime involving an offences under the Official Secrets Act, 1923 (1923);
(b) The expression "grave misconduct" includes the communication or disclosure of any secret, official code or password or any sketch, plan, model, article, note, document or information such as is mentioned in section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office in the Corporation or the company concerned) so as to prejudicially affect the interest of the general public or the security of the State."
Upon perusal of the above provision it is nowhere expressly provided that even after acquittal the retiral benefits shall not be released if any appeal filed against the acquittal. The only word is used that in such cases the gratuity shall be paid on conclusion of proceedings subject to the decision of the proceedings. Meaning thereby, no such bar is imposed in the scheme for not releasing the retiral benefits before the decision in the appeal filed against the judgment of acquitted. The only word is until the conclusion or proceedings against him. In this connection, I have considered the judgment of the Hon''ble Supreme Court in the case of Narayan Prabhu Venkateswara Prabhu (supra) in which the Hon''ble Supreme Court in para No. 16 observed as under:-
"16. So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question Whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in section 11, has been heard and finally decided. That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal. The mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the un-amended Article 133(1)(c)in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question the correctness or finality of that decision even by means of an application for Special Leave to appeal."
After considering the entire facts of the case and the fact that the petitioner was acquitted from the criminal charges levelled against by the competent criminal court, the respondents cannot deny the retiral benefits to the petitioner because for the purpose of releasing retiral benefits there is no bar in the scheme. So also, proceedings against the employee come to an end after acquittal.
In view of the above, the instant writ petition is allowed and it is ordered that the petitioner shall be paid his all the retiral benefits including pension, amount of gratuity, commutation, leave encashment within a period of two months from the date of receiving the certified copy of this order failing which the petitioner will be entitled for 9% interest.