High Court · 2012

Heard Mr. B Goswami, learned counsel for the petitioner. Also heard Ms B Dutta, learned State counsel appearing for all the respondents. The petitioner retired from service on attaining the age of superannuation, on 3 0.09.2009. At the time of his retirement, he was serving as Junior Administrativ e Assistant in the Assam Secretariat under the Home (A) Department, though his p arent department was the Secretariat Administration Department. While the petiti oner was in service, he was arrested on 15.09.2008, in connection with CID PS Ca se No. 03/2008 registered under Section 120(B)/420/468/477(A) IPC read of Sectio n 13(I)(d)/15 of the Prevention of Corruption Act, 1988. In view of his arrest, the petitioner was placed under suspension vide the order, dated 10-11-2008, wit h effect from the date of his arrest. The petitioner was subsequently released o n bail on 14.11.2008. However, no departmental proceeding was initiated against the petitioner; but in spite of that the petitioner was not reinstated in servic e and he retired from service on attaining the age of superannuation on 30.11.20 09 while he was still under suspension. According to the petitioner, he had move d the authorities on a number of occasions for his reinstatement in service but without any effect. Because of his non-reinstatement, he has not been paid his s alary from the date of his suspension till his retirement as well as his retirem ent dues after his superannuation. Being aggrieved, the petitioner has filed the present writ petition seeking quashing of his suspension order and for a direct ion to the respondents to grant regular pay and allowances for the period when h e was under suspension till his retirement and thereafter to grant him all his p ensionery dues. The respondent No.1 has filed an affidavit stating that the petitioner was place d under suspension for his arrest in the CID PS Case No. 03/2008. He has stated that the petitioner could not be considered for reinstatement in service because of the pendency of the criminal case. The said respondent has, however, stated that a co-accused of the above criminal case Sri Anil Kr. Baruah was subjected t o a departmental proceeding whereafter a penalty of reduction to a lower rank wa s imposed on him. Sri Anil Kr. Baruah was subsequently reinstated in service. The petitioner has filed a rejoinder affidavit in reply to the contentions advan ced by the respondent No.1 in his counter affidavit. He has stated therein that no departmental proceeding was drawn up against him and, therefore, the action o f the authorities in not reinstating him was wholly without justification. Mr. Goswami, learned counsel for the petitioner submits that Sri Anil Kr. Baruah has in the meanwhile also retired from service; but he has been paid his pensio nery benefits. Another accused of CID PS Case No.3/2008, Sri Gagan Pator, who wa s arrested like the petitioner in the above noted case, has also retired from se rvice and he has been paid his pensionery dues. He submits that even the Directo r of Police (Communication) Sri P.M.Dastidar, who is an accused in the CID PS Ca se No.3/2008, has in the meanwhile retired and on his retirement he has also bee n paid his pensionery benefit. He further submits that the petitioner cannot be denied his pensionery dues only because of the fact that he is an accused in the said criminal case, more so when no charge-sheet has been submitted in the case . Learned counsel for the petitioner also refers to the provision of FR 54B and submits that the respondents should have reinstated him in service by paying his back wages. Ms B Dutta, learned State counsel submits that the petitioner has failed to furn ish all the relevant pension papers for which the Department could not finalise the pension proposal of the petitioner. Replying to the above, Mr. Goswami, learned counsel for the petitioner submits t hat without finalisation of the matter in terms of FR 54B the petitioner cannot submit his pension papers and, therefore, the Government should first finalise t he matter. FR 54B of the Fundamental Rules and Subsidiary Rules deals with a situation wher e a Government servant under suspension is reinstated or would have been so rein stated but for his retirement on superannuation while under suspension. As per t he material portion of the aforesaid provision, when a Government servant, who h as been suspended and has retired on superannuation while still under suspension , the authority competent to order re-instatement shall consider and make a spec ific order regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with the date of his retirement on superann uation, and as to whether the said period should be treated as a period spent on duty. The relevant portion of Rule 54B is extracted here under:- (cid:28)(1) when a Government servant who has been suspended is re-instated or would ha ve been so re-instated but for his retirement on superannuation while under susp ension, the authority competent to order re-instatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the Government servant for th e period of suspension ending with reinstatement or the date of his retirement o n superannuation, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (cid:29) Again, under the Rule 21 of the Assam Services (Pension) Rules, 1969, the Govern or of Assam has the right to withhold or withdraw a pension or any part of it fr om the pension of a retired Government employee if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence duri ng the period of his service, provided that such departmental proceeding, if ins tituted while the Government servant was in service, shall, after his retirement , be deemed to be a proceeding under the pension Rules. In the Explanation to th e said Rule, it has been explained that a departmental proceeding shall be deeme d to be instituted from the date on which the statement of charge is issued to t he Government servant and a judicial proceeding shall be deemed to be instituted , in the case of a criminal proceeding, on the date on which the Magistrate take s cognizance of the complaint or the report of the police officer. This Court in the case of Harinath vs State of Assam and ors reported (2007) 3 G LR 648, on consideration of Rule 21 of the Assam Services (Pension) Rules, 1969, in a some what similar situation, directed the respondents therein to release t he pensionary and other dues of the petitioner. In the instant case, no charge-sheet has been issued to the petitioner by the re spondents. Charge- Sheet has also not been submitted in the criminal proceeding arising out of CID PS Cases No.3/2008, Therefore, in terms of the explanation to Rule 21 of the Pension Rules, neither any departmental proceeding nor any judic ial proceeding has been instituted against the petitioner. Considering the above, there is no justification on the part of the respondents in withholding the pensionary and other retiral dues of the petitioner. The resp ondents have also not controverted the contention of the petitioner that other a ccused persons of the same case i.e., CID P.S. Case No.3/2008as named above have been granted their pensionary and other dues, while denying those of the writ p etitioner. The Courts have held time and again that pension is a valuable right and property of an employee and that there should be no delay in releasing the s ame. It is not a bounty which can be disbursed as per the convenience of the emp loyer. In view of the above, the respondent No. 1 is directed to pass an order in terms of FR 54B regarding the pay and allowances of the petitioner for the period of suspension till the date of his retirement on superannuation.. The said decision will be taken within a period of six weeks from today. Once the said decision i s taken, the same should be immediately communicated to the petitioner. On recei pt of the said order, the petitioner shall submit his pension papers within four weeks thereafter and on receipt of the same, the pensionary dues and other ret iral dues of the petitioner will be finalised by the respondents within a period of eight weeks from the date of receipt of the pension papers from the petition er. In the meanwhile, the provisional pension, which has been sanctioned, should be released to the petitioner. Writ petition accordingly stands allowed.