JOHN TELEN KOM v. The State of Manipur & Ors.

BEFORE HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner/s : Mr. N. Ibotombi, Sr. Advocate For the Respondent/s : Mr. H. Samarjit, GA Mr. Salam Samarjeet, Sr.PCCG Date of Hearing and Judgment & Order :

20.07.2022 JUDGMENT & ORDER (ORAL) Heard Mr. N. Ibotombi, learned senior counsel for the petitioner, Mr. H. Samarjit, the learned Government Advocate for the respondents 1 to 3 and Mr. Salam Samarjeet, learned Sr.PCCG for the 4th Respondent. [2] This writ petition has been filed seeking a writ of mandamus directing the respondents to release all pensionary benefit, including retirement gratuity, commutation etc. as well as leave encashment, group insurance in favour of the petitioner with interest at the rate of 9% per annum for the delay to the total amount of entitled pensionary benefits due to the petitioner. W.P.(C) No.358 of 2022 P a g e | 3 [3] The case of the petitioner is that even though the petitioner retired from service on 28.2.2015 A.N. on attaining the age of superannuation, the respondent authorities failed to release the retirement benefits to him. Further case of the petitioner is that despite furnishing relevant pension papers of the petitioner to the concerned authority for grant of pension and other retirement benefits, even after more than 7 years of his retirement, no pensionary benefit and other retirement benefits, except GFF and Group Insurance were paid to the petitioner without assigning any reason. Hence, the writ petition. [4] [5] No counter has been filed by the respondents. The learned counsel for the petitioner submitted that in terms of MCS (Pension) Rules, 1977, the petitioner is entitled to receive retirement pension, retirement gratuity etc. on attaining the age of superannuation. However, the respondent authorities denied the same, inasmuch as no pension and other retiral benefits have so far been paid to the petitioner despite lapse of more than six years. The action of respondent authorities are unjust, oppressive and also violative of Article 14 and 300A of the Constitution of India. [6] The learned counsel further submitted that one Ranjana Manohermayum, who was not paid gratuity and pension on her attaining the age of superannuation, has filed W.P.(C) No.1013 of 2018 before this Court W.P.(C) No.358 of 2022 P a g e | 4 and by the order dated 30.4.2019, the said writ petition was disposed of by directing the respondents for finalization of the pension papers within a period of three months. He submits that assailing the order dated 30.4.2019, the respondent authorities filed W.A.No.17 of 2020 and by the judgment dated

29.3.2022 the said appeal was dismissed. [7] The learned counsel urged that the petitioner is similarly situated person and, as such, the case of the petitioner is covered by the judgment dated 29.3.2022 passed in W.A.No.17 of 2020. Thus, a prayer is made to direct the respondents to prepare the PPO and to release the retirement benefits of the petitioner, including gratuity, commutation, leave encashment and any other entitlements. [8] Per contra, Mr. H. Samarjit, the learned Government Advocate for Respondent Nos.1 to 3 submitted that since the petitioner is an accused in the criminal trial, his pensionary benefits have been withheld. Further, as per Rule 9 of the Central Civil Services (Pension) Rules, 1972, the respondent authorities have right to withhold or withdraw pension. Therefore, the action of the respondent authorities in not releasing the pensionary benefits is not an arbitrary act and, thus, prayed for dismissal of the writ petition. W.P.(C) No.358 of 2022 P a g e | 5 [9] This Court considered the rival submissions and also perused the materials available on record. [10] The grievance of the petitioner is that the petitioner retired from service in the year 2015 on attaining the age of superannuation and he has not been paid the pensionay benefits till date on the ground that criminal trial case is pending against him. According to the petitioner, if the petitioner being denied pension and other legally entitled retirement benefits on the ground that he is an accused in the criminal trial case, then it will not only be a bad law, but it will be arbitrary, mala fide and illegal. [11] There is no dispute that while the petitioner was working as Assistant Financial Advisor in Public Works Department, he retired from service on 28.2.2015 AN on attaining the age of superannuation. By the letter dated

7.10.2019, the Chief Engineer, PWD submitted necessary documents for pension papers to the Joint Secretary (DP), Government of Manipur and thereafter, the Under Secretary (DP) vide letter dated 11.02.2020 forwarded the pension papers fourth respondent Accountant General authorization of provisional pension and other retirement benefits along with relevant documents. W.P.(C) No.358 of 2022 P a g e | 6 [12] It is pertinent to note that the process for preparation of pension papers of State Government employees is to be started two years before the date on which a Government servant is due to retire on superannuation and within the said two years, the three stages as given in Rule 59 have to be followed. Thereafter, the Head of Office shall have to complete Part I of Form 7 not later than 6 months of the date of retirement, as mandated by Rule 60. Rule 61 mandates that all requisite documents/papers have to be forwarded to the Accountant General not later than six months before the date of retirement. Unfortunately, none of these steps were taken up by the respondents in the case of the petitioner. Furthermore, in terms of the MCS (Pension) Rules, 1977, the employer ought to have settle the pension and gratuity etc. on attaining the age of superannuation. In the case on hand, the petitioner complained that despite lapse of more than six years from the date of retirement, no pension and other retiral benefits due to the petitioner have been given. [13] By placing reliance upon the order dated 30.4.2019 passed in W.P.No.1013 of 2018, affirmed in W.A.No.17 of 2019 dated 29.3.2022, Mr. N Ibotombi, learned senior counsel for the petitioner submitted that the writ petitioner therein was not paid the gratuity and pension on her attaining the age of superannuation on the ground that a vigilance case was pending against W.P.(C) No.358 of 2022 P a g e | 7 her. The learned Single Judge after considering the claim of the writ petitioner, disposed of the writ petition with a direction to the respondents for finalization of the pension papers and payment of gratuity and other pensionary benefits within a period of three months. Aggrieved by the order of the learned Single Judge, the Government of Manipur preferred W.A.No.17 of 2020. [14] By the judgment dated 29.3.2022, the Hon’ble Division Bench of this Court, disposed of the appeal holding that the action of the State authorities in resorting to withholding her pension and gratuity cannot be said to be lawful. According to the learned counsel for the petitioner, the petitioner is similarly situated person and therefore, order and judgment passed in W.A.No.17 of 2020 is squarely applies to the case of the petitioner and, accordingly, a direction may be issued to the respondents to release all pensionary benefits, including gratuity, commutation etc., apart from leave encashment. [15] A perusal of the order dated 30.4.2019 passed in W.P.(C) No.1013 of 2018, the learned Single Judge stated as under: “12. …..in the considered opinion of this Court, there was no impediment on the part of the State respondents to clear the gratuity as well as pay the pensoinary benefits to the W.P.(C) No.358 of 2022 P a g e | 8 petitioner. Subsequent events cannot be taken as a ground for withholding the gratuity and pensonary benefits of the petitioner.

13. In that view of the matter, the respondents 1 & 2 are directed to forthwith take immediate steps for finalizing the Pension Papers of the petitioner and thereafter, pay the Gratuity and pensionary benefits within a period of 3 (three months from the date of receipt of a copy of the order of this Court. ….” [16] Assailing the order dated 30.4.2019, the respondent State preferred W.A.No.17 of 2020. By the judgment dated 29.3.2022, the appeal was disposed of holding that the authorities have no power to withhold gratuity and pension even during the pendency of disciplinary/judicial proceedings in the event the Government servant is allowed to retire. Paragraph 22 of the said judgment is relevant and is quoted hereunder: “22. In the light of statutory scheme obtaining under the State’s Pension Rules and the case law set out supra, it is clear that the authorities have no power to withhold gratuity and pension even during pendency of the disciplinary/judicial proceedings in the event the government servant is allowed to retire as there is no provision in the rules extant akin to Rule W.P.(C) No.358 of 2022 P a g e | 9 43(c) of the Bihar Pension Rules or Rule 34.2 of the Conduct, Discipline and Appeal Rules. As per Rule 9, which is applicable presently, it is only after the conclusion of disciplinary/judicial proceedings and rendering of a finding of guilt therein against a Government servant tat the question of withholding his/her gratuity and pension would arise. As already noted supra, it cannot even be deemed at this state that any departmental or judicial proceedings have been instituted against respondent No.1. However serious the allegation of misconduct may be, without the sanction of law and a legal foundation for such punitive action, it is not open to the authorities to withhold the lawful benefits due and payable to a retired employee on the ground that he or she may, thereafter, be found guilty of causing pecuniary loss to the Government. Bereft of such legal sanction, the action of the authorities in withholding pension and gratuity cannot be countenanced.” [17] The decision rendered in W.A.No.17 of 2020 is squarely applies to the case on hand. Following the aforesaid decision, this Court is of the view that the petitioner is similarly situated person as that of the writ petitioner in W.A.No.17 of 2020. Thus, the action of the respondent authorities in the case of the petitioner in withholding his pension and gratuity is illegal. W.P.(C) No.358 of 2022 P a g e | 10 [18] The authorities have no power to withhold gratuity and pension even during pendency of disciplinary/judicial proceedings in the event of a Government servant allowed to retire. Only after the conclusion of disciplinary/judicial proceedings and rendering of a finding of guilt therein against a Government servant, the question of withholding the gratuity and pension would arise. In the case on hand, nothing has been produced by the respondent authorities to show that the guilt of the petitioner herein has been proved and he was convicted. Being an accused or a mere accused in the FIR or criminal trial case, as the case may be, is not quo non to be convicted and in criminal jurisprudence, as rightly argued by learned senior counsel for the petitioner, an accused person is presumed to be innocent until and he is proven guilty beyond all reasonable doubt. [19] As stated supra, the petitioner retired from service in the year 2015 on attaining the age of superannuation and despite lapse of more than six years, he has not been given pension, gratuity and other retiral benefits. Therefore, this is a fit case to direct the respondents to release pensionary benefits due to the petitioner. [20] In the result, the writ petition is allowed in terms of the judgment dated 29.3.2022 passed in W.A.No.17 of 2020. The respondents are directed W.P.(C) No.358 of 2022 P a g e | 11 to release all pensionary benefits, including gratuity, commutation, leave encashment, group insurance etc. within a period of three months from the date of receipt of a copy of this order. If the respondent authorities failed to comply with the direction aforesaid within the time stipulated, then the retiral benefits due to the petitioner will carry interest at the rate of 7.5% per annum from the date of filing of the writ petition. There will be no order as to costs. JUDGE FR/NFR -Larson W.P.(C) No.358 of 2022