High Court
Case Details
WP(C) 3113/2008 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mr. P. Kataki, learned counsel for the petitioner. Also he ard Mr. B. Gogoi, learned Standing Counsel, Finance Department, Mr. C. Baruah, l earned Standing Counsel, Accountant General and Mr. A. Chetry, learned Standing Counsel, Pension and Public Grievances Department, Government of Assam. 2. By way of this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to pay him full pensiona ry benefits w.e.f. the date of his retirement. 3. Case of the petitioner is that he was serving as Treasury Office r under the Finance Department, Government of Assam. While serving as Treasury O fficer, Nagaon, petitioner was placed under suspension vide Government notificat ion dated 17.07.1993. Thereafter, show cause notice under Rule 9 of the Assam Se rvices (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitu tion of India was issued to the petitioner by the disciplinary authority on 09.1 2.1993 on the following charges:- (cid:28)1. ed withdrawal of Govt. money in excess of L.O.C. to the tune of Rs.47,99,557/- a s detailed in the Statement of Allegations, against the bills presented by the o fficer-in-charge of ICDP, Nagaon under the head (cid:28)2403-A.H. & Vety. etc. (cid:29) causing thereby colossal loss on the Public Exchequer and upsetting budgetary provision in respect of the head of account as cited above during the period from May, 19 That while you were the Treasury Officer of Nagaon Treasury, you permitt 91 to October, 1992. You, are, therefore, charged with committing financial irregularities in violati on of instructions issued by Govt. regarding L.O.C. from time to time and conniv ance with the Drawing and Disbursing Officer to misappropriate the Government mo ney. 2. That while you were Treasury Officer of Nagaon Treasury you passed bills presented by Officer-in-charge, ICDP, Nagaon on the strength of forged L.O.C. t o the tune of Rs.40,41,000/- as detailed in the Statement of Allegations. You are, therefore, charged with passing fraudulent and fictitious bills and neg ligence of duty leading to loss of huge public money. 3. That while you were Treasury Officer of Nagaon Treasury, you did not tak e any steps to get the L.O.C. Register of ICDP, Nagaon properly maintained by yo ur office as detailed in the Statement of Allegations. You are, therefore, charged with dereliction of duty. 4. That on 31.03.1993 while you were Treasury Officer of Nagaon Treasury yo u permitted withdrawal of Govt. money to the tune of Rs.6,63,486/- without L.O.C . as detailed in the statement of Allegations during March, 1992 under the head (cid:28)2403-A.H. & Vety. Deptt. etc. Decentalised Planning. (cid:29) There were clear instructions of Govt. of Assam in the Finance Department from t ime to time to all the Treasury Officers among others, one of which, for example , was No. BB.95/89/78, dt. 16.5.90 that no bill should be passed for payment wit hout valid L.O.C. But while allowing payment of the above amount you ignored the Govt. instructions/orders/directions resulting in unauthorized permission for w ithdrawal of an amount of Rs.6,63,486/- from the Treasury and thereby upsetting budgetary provision in respect of the head of account as cited above. You are. therefore, charged with violation of the Govt. instructions so far as L .O.C. is concerned as well as allowing unauthorized withdrawal of Govt. money fr om Treasury resulting financial loss to Government. (cid:29) 4. Petitioner submitted his written statement on 08.03.1994 denying the charges levelled against him. 5. It appears that the disciplinary proceeding was not proceeded fu rther and instead, the Government invoked power under FR 56 (b) to retire the pe titioner from service with immediate effect in public interest. 3 months gross s alary was paid to the petitioner in lieu of notice of 3 months as provided under FR 56 (b) vide order dated 11.04.1994. 6. Thereafter, Government of Assam vide order dated 31.05.1995 gran ted provisional pension to the petitioner @ Rs. 1180/- p.m. plus relief and medi cal allowances with effect from 12.07.1994 after taking into account the 3 month s salary period from 11.04.1994. Provisional pension was granted as per Rule 22 of the Assam Services (Pension) Rules, 1969. 7. By communication dated 17.06.1999, Finance Establishment (B) Dep artment, Government of Assam informed the Accountant General that petitioner had been allowed to draw his provisional pension in the revised rate w.e.f. 01.01.1 996 till conclusion of the judicial proceeding instituted against him. 8. It may be mentioned that the judicial proceeding referred to in the communication dated 17.06.1999 is the two criminal cases pending in the Cour t of Special Judge, CBI, Guwahati where the petitioner is one of the accused. 9. Petitioner submitted a representation dated 02.09.2000 before th e Pension and Public Grievances Department for release of his provisional pensio n in the revised rate as per Government communication dated 17.06.1999. 10. Grievance of the petitioner is that he is still drawing only pro visional pension under Rule 22 of the Assam Services (Pension) Rules, 1969 (Pens ion Rules) and not regular pension. According to the petitioner, cause of action in respect of the two criminal cases pending against him relates to the period from May, 1991 to October, 1992 as is reflected in the show cause notice dated 0 9.12.1993. Cognizance in the criminal cases were taken after 4 years. Therefore, as per provision of Rule 21 (c) read with Explanation (b) (i) of the Pension Ru les, no judicial proceeding would be deemed to be pending against the petitioner which would enable the Government to withhold payment of his regular pension. 11. Respondent No. 1 has filed affidavit. Stand taken in the affidav it is that the petitioner during his tenure as Treasury Officer, Nagaon from Apr il, 1991 to October, 1992 was allegedly found responsible for fraudulently passi ng bills for a total amount of Rs. 47,01,025/- in excess of Letter of Credit (LO C). Accordingly, petitioner was placed under suspension on 17.07.1993. Subsequen tly, petitioner was compulsorily retired w.e.f. 11.04.1994. Criminal proceedings were also initiated wherein petitioner was also named as accused. Government ac corded sanction under Section 197 of the Code of Criminal Procedure on 17.12.199 6 for prosecution of the petitioner. However, in view of the provisions containe d in Rule 22 of the Pension Rules, provisional pension has been sanctioned and g ranted to the petitioner. Petitioner’s pension matter has not been finalized bec ause of non-conclusion of the criminal cases.
Legal Reasoning
A careful reading of the above Explanation (b) (i) would indicat 22. e that a judicial proceeding in the case of a criminal proceeding shall be deeme d to be instituted on the date when the Court takes cognizance of the offence al leged. This Court in the case of Madan Mohan Baruah-Vs-State of Assam and Ors re ported in (2006) 2 GLR 736, while examining the aforesaid provision, held that s uch a criminal proceeding may be deemed to have been instituted on the date when the Court takes cognizance of the offence alleged. In the present case, the rep orts of the police officer in the form of charge sheets were made on 02.01.1997 (charge sheet No. 1/1997) and 25.04.1997 (charge sheet No. 3/1997). On the basis thereof, the Criminal Court took cognizance on 03.01.1997 and 25.04.1997 respec tively. Thus, for the offence charged relatable to May, 1991 and the yea 23. r 1992, the charge sheets were submitted on 02.01.1997 and 25.04.1997, on the ba sis of which cognizance were taken on 03.01.1997 and 25.04.1997, which is clearl y beyond 4 (four) years from the date of the event in respect of which cognizanc e has been taken by the Criminal Court. That being the position, there is no jud icial proceeding within the meaning of Rule 21 (c) Explanation (b) (i) of the Pe nsion Rules pending against the petitioner. Therefore, the respondents would not be justified in withholding regular pension and other retirement dues of the pe titioner. 24. Accordingly, respondent No. 1 is directed to prepare the pension papers of the petitioner for payment of regular pension and other pensionary du es and submit the same to the office of respondent No. 2 within a period of 2 (t wo) months from the date of receipt of a certified copy of this order. Responden t No. 2 shall thereafter finalize the pension case of the petitioner within a pe riod of 2 (two) months from the date of receipt of the pension papers from the o ffice of respondent No. 1 25. 26. Writ petition is allowed. No cost.
Arguments
12. Mr. P. Kataki, learned counsel for the petitioner has referred t o Rule 21 of the Pension Rules and contends that the Government has right to wit hhold the pension of a retired Government employee if in a departmental or judic ial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service. But no such judicial proceeding, if not instit uted while an officer was in service, can be instituted in respect of a cause of action which arose or in respect of an event which took place more than 4 (four ) years before such institution. He submits that as per Explanation (b) (i) to t he said Rule, a judicial proceeding in the case of a criminal proceeding shall b e deemed to be instituted on the date on which a complaint or report of police o fficer on which the Magistrate takes cognizance is made. According to the learne d counsel, the cause of action in the present case is relatable to the period fr om May, 1991 to October, 1992. Cognizance was taken by the Criminal Court on 03. 01.1997 and 25.04.1997 which is beyond the period of 4 (four) years. In that vie w of the matter, it cannot be said that any judicial proceeding is pending again st the petitioner within the meaning of Rule 21 (c) Explanation (b) (i) of the P ension Rules. Therefore, the action of the respondents in withholding regular pe nsion of the petitioner is without justification and necessary direction may be issued to the respondents to pay full pension and other retirement dues to the p etitioner. Mr. B. Gogoi, learned Standing Counsel, Finance Department on th 13. e other hand submits that cause of action as mentioned in Clause (c) of Rule 21 of the Pension Rules would mean the date of filing of FIR which in this case was 22.07.1993. Since cognizance was taken on 03.01.1997 and 25.4.1997, it was well within the period of 4 (four) years and, therefore, it is evident that a judici al proceeding in the form of a criminal proceeding is pending against the petiti oner. Respondents are, therefore, justified in withholding payment of regular pe nsion to the petitioner. Mr. C. Baruah, learned counsel for the Accountant General and Mr 13. . A. Chetry, learned Standing Counsel, Pension and Public Grievances Department have adopted the stand taken by Mr. Gogoi. 14. Submissions made have been considered. 15. It is seen from the averments made in the writ petition, particu larly in paragraph-8 thereof, that FIR was lodged before the Anti Corruption Bur eau of the State Police on 22.07.1993 regarding illegal drawal of money from Nag aon Treasury, which was registered as ACB PS Case No. 7/1993. Subsequently, Gove rnment of Assam decided to hand over the case to the CBI. After completion of in vestigation, CBI submitted charge sheets, being charge sheet No. 1/1997 and char ge sheet No. 3/1997, wherein petitioner has been named as accused. Charge sheet No. 1/1997 has given rise to Special Case No. 17/2004 and charge sheet No. 3/199 7 has given rise to Special Case No. 67/2004, both pending in the Court of Speci al Judge, CBI, Guwahati. 16. This Court while hearing the matter on 13.03.2013 directed the l earned counsel for the petitioner to produce copies of the charge sheets and the orders of cognizance in the criminal cases. Today, when the matter is taken up for hearing, Mr. Kataki, learned counsel for the petitioner has placed before th e Court copies of two charge sheets, being charge sheet No. 1/1997 and charge sh eet No. 3/1997 and the orders of cognizance dated 03.01.1997 and 25.04.1997. 17. It is seen that Special Case No. 17/2004 has been registered in the Court of Special Judge, CBI, Guwahati in respect of the aforesaid charge she et No. 1/1997 wherein petitioner has been arrayed as accused No. 3. In this case , the Criminal Court had taken cognizance on 03.01.1997. In case of Special Case No. 67/2004 relating to charge sheet No. 3/1997, wherein petitioner is the accu sed No. 2, the date of taking cognizance is 25.04.1997. From a perusal of charge sheet No. 1/1997, it is seen that the offence against which petitioner has been charged relates to May, 1991 and from the charge sheet No. 3/1997, the period i n question is the year 1992. This two periods correspond to the period mentioned in the show cause notice dated 09.12.1993 wherein the charge against the petiti oner was for the period from May, 1991 to October, 1992. 18. In this case, though show-cause notice was issued, no department al proceeding as such was initiated against the petitioner and he was ultimately retired from service as an administrative measure, by exercising power under FR 56 (b). Therefore, in the present case, admittedly neither any departmental pro ceeding was initiated nor is pending against the petitioner. 19. The only proceedings that are pending against the petitioner are the two criminal cases, being Special Case Nos. 17/2004 and 67/2004 in the Cour t of Special Judge, CBI, Guwahati. 20. We may now refer to the provisions of Rule 21 of the Pension Rul es on which much emphasis has been placed by learned counsel for the petitioner. 21. Rule 21 provides that the Government of Assam has the power to w ithhold or withdraw a pension or any part of it, whether permanently or for a sp ecified period and also has the right of ordering recovery from pension the pecu niary loss caused to the Government, if in a departmental or judicial proceeding , the pensioner is found guilty of grave misconduct or negligence during the per iod of his service, including service rendered upon re-employment. As already no ticed, no departmental proceeding was initiated or is pending against the petiti oner. Therefore, there is no administrative finding of grave misconduct or negli gence recorded against the petitioner following a departmental proceeding. Only two criminal cases are pending against the petitioner. Clause (c) of Rule 21 pro vides that no such judicial proceeding, if not instituted while the officer was in service, shall be instituted in respect of a cause of action which arose or a n event which took place more than four years before such institution. As per Ex planation (b) (i) below the Rule, a judicial proceeding shall be deemed to be in stituted in the case of a criminal proceeding on the date on which the complaint or report of a police officer on which the Magistrate takes cognizance, is made .