Rajasthan High Court - Jodhpur
Chula Ram Heerani vs State & Ors on 6 January, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 3509 / 2014
Chula Ram Heerani s/o Shri Kimat Ram, Aged about 61 years,
Resident of 78, Ramdev Road, Magni Ram Ji ka Chabutara, Near
Police Chowki, Pali (Raj.)
----Petitioner
Versus
1. The State of Rajasthan, through its Principal Secretary, Medical
& Health Department, Government of Rajasthan, Secretariat,
Jaipur.
2. The Additional Director (Admin.), Medical & Health Services,
Directorate, Rajasthan, Jaipur.
3. The Chief Medical & Health Officer, Pali.
----Respondent
_____________________________________________________
Mr. Deepak Nehra, For Petitioner(s) :
Mr. Anil Bissa, For Respondent(s) :
_____________________________________________________
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order 06/01/2017 Heard learned counsel for the parties.
2. The petitioner by way of this writ petition has prayed that the respondent department be directed to release the in-service benefits and retiral benefits including gratuity etc. It is the case of petitioner that he was initially suspended from the post of UDC on 10.3.1986 on account of criminal case registered against him under Sections 424,467,468, 471 and 120-B IPC as well as under
(2 of 8) [CW-3509/2014] the provisions of Prevention of Corruption Act 1988. The petitioner contested the case registered against him and was discharged vide judgment dated 04.5.2002 by the Special Judge, Sessions Court, Jodhpur. The petitioner in the meanwhile was reinstated in service vide order dated 29.7.1986.
3. His case is that he was reinstated and had been later on acquitted also but he was not granted benefit of promotion although persons junior to him were granted benefit of promotion to the post of Office Assistant against the vacancies of 2000-2001, 2001-2002 and 2002-2003. It is stated further that persons junior to him were also further promoted on the post of Office Superintendent against the vacancies of the year 2008-2009. The petitioner has further submitted in his petition that he was the senior most person amongst the persons those who were promoted on 02.3.1987 but several of his junior were given promotion from time to time on the post of Office Assistant as well as thereafter on the post of Office Superintendent, but he was left out without any rhyme or reason.
4. It is his further case that the petitioner was not even granted annual grade increments for the period nor his pay fixations were done under the Revised Pay Scales Rules from time to time. All this was denied to him only in the garb of the fact that a criminal revision had been filed by the State against discharge order before this Court, the same is stated to be pending.
5. The petitioner has thereafter retired but he has not been paid his pension and retiral benefits nor his pay fixations have (3 of 8) [CW-3509/2014] been made nor he has been given benefit of selection scale of 9,11 and 27 years. The payment for the period of suspension has not been released except the subsistence allowance. The petitioner has made several representations to the concerned authorities but of no avail and no action has been taken at their behest. He had therefore approached this Court in 2014 with the prayer that he should be given all the benefits of regularization of suspension benefit salary of suspension period, increments, regular promotion selection grades and retiral benefits including regular pension, commutation of pension and gratuity.
6. It is stated that no departmental inquiry was initiated against him and merely on account of pendency of criminal revision before the High Court, he could not have been denied the said benefits as criminal revision cannot be said to be continuation of criminal trial which has ended in discharge and thereby clean acquittal of the petitioner from the charge for which he was initially suspended.
7. It has further been argued that the petitioner having already retired in 2012 was entitled to receive gratuity and even under the Payment of Gratuity Act the petitioner's gratuity could not have been withhold on the premise that criminal revision is pending against the order of discharge since 2002.
8. After notice, the respondents have submitted their reply and have relied upon the judgment passed by this Court in Shersingh Vs. State of Raj. & Anr. in SBCWP No. 21223/2013 decided on (4 of 8) [CW-3509/2014] 10.1.2014 and also on the provisions containing under the Rule 90 (1) (c) of the Rajasthan Civil Services Pension Rules, 1996 (hereinafter referred to as the Rules of 1996). For ready reference Rule 90(1) (c) is quoted hereunder:-
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:
9. On the basis of aforesaid provision, it is stated that as criminal revision is pending, gratuity cannot be released. It is further stated at bar that pension payment order has already been prepared and has been issued to the petitioner on 30.10.2012.
10. Having gone through the record, at the outset it must be stated that the pension payment order which is being relied upon is a provisional pension order and final pension order has not been released till date.
11. A look at the provisional pension order also shows that the petitioner's pay has not been fixed under the Revised Pay-Scale Rules of 2008.
12. The learned counsel for the petitioner has relied upon the judgment passed by this court in SBCWP NO. 2460/2007 (Harbans Lal Vs. State of Raj. & Ors.) and order dated 4.4.2005 passed in DB Special Appeal No. 110/2005 (State of Raj. & Ors. Vs. Jogendra Singh) and order dated 08.2.2016 passed in SBCWP NO. 11990/2012 in order to submit that merely because the appeal is pending before the High Court the respondents cannot absolve themselves from releasing the benefits to the petitioner.
In case of Harbans Lal this Court held as under:-
(5 of 8) [CW-3509/2014] " By the judgment dated 14.9.2004 passed by the competent court the petitioner has already been acquitted from the charges for which he was tried. After acquittal no reason survives to detain benefits of the petitioner including consideration for grant of salary beyond the subsistence allowance already paid. It is well settled that the order passed by the trial court is final one till its alteration by the appellate court. In the instant matter though an appeal has been filed by the respondents giving challenge to the judgment dated 14.9.2004 but merely on the basis of the pendency of the appeal it cannot be said that acquittal of the petitioner at this stage is not final." In the case of Jogendra Singh, this Court has held as under:-
"In our view, simply because the appeal against the order of acquittal is pending before the appellate curt, the respondent cannot be deprived for the retiral benefits."
13. In the case of Bakhtawar Singh Vs. State of Raj. & Ors. decided on 08.2.2016 this court after concluding another judgment passed in SBCWP No. 10119/2010 Khuman Singh Vs. State of Rajasthan & Ors. has held as under:-
"Once, the petitioner stands acquitted, there is no ground to deny him his retiral benefits of gratuity and leave encasement. He would not be entitled to pension as he does not have qualifying service of ten years. The argument that benefits will be released from the date of acquittal is negated in view of the fact that the petitioner was acquitted and was denied retiral benefits for no fault of his. Note appended to Rule 89 of the Pension Rules also stipulates that in case a person is exonerated from judicial or departmental proceedings, the interest on delayed payment or retiral benefits will become payable from the date payment stands due."
14. So far as the submission of State counsel relating to the judgment rendered in Sher Singh is concerned SBCWP NO. 21223/l2013 the facts of the case were that the case was pending (6 of 8) [CW-3509/2014] against the petitioner under Section 302 IPC at the time when he retired. In view thereof a reliance upon Rule 90 (1) (c) the court proceeded to pass an order that :-
'The petitioners are facing trial for an offence under Section 302 IPC. Thus pending judicial proceedings, they are not granted gratuity and commuted pension, rather it is barred by rule 90 of the Rules of 1996 referred to above".
15. A look at the provisions under Section 90 (1) (c) would show that the release of gratuity depends upon conclusion of a departmental or judicial proceedings. Thus, if a person has been acquitted in judicial proceedings or exonerated in departmental proceedings, the gratuity shall be released. 16 The question however remain as to whether judicial proceedings can be said to be pending if a criminal revision has been filed in the high court against the order of discharge? Under Rule 7 of the Rajasthan Pension Rules, 1966 explanation thereto, it has been provided that the judicial proceedings shall be said to be instituted when a chargesheet is filed by the investigating agency before the competent court. As per Cr.P.C., 1973 the criminal case is said to be concluded at two stages. A- whether a person should be entitled to be treated as having been acquitted if he is either discharged or he is acquitted after conducting of trial. The discharge is provided under Section 227 of Cr.P.C. which reads as under:-
(7 of 8) [CW-3509/2014]
227. Discharge _ If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
17. Thus, the judicial proceedings stand concluded immediately when a person has been discharged. It is a well settled law that criminal revision filed before the High Court cannot be said to be a continuation of criminal trial or criminal proceedings against an individual within the meaning of Rule 7 of the Pension Rules of 1966, and, therefore, the embargo contained under Rule 90 (1)
(c) would be no more applicable once a person has been discharged of the criminal offence. Thus, merely because of pendency of criminal revision or for that matter any appeal against an discharge or acquittal as the case may be, a person cannot be denied regular service benefits.
18. The person who is rendering service with the State Government is entitled to draw increments for the year of service which he has already rendered. The same can be withhold or withdrawn either by way of an order passed giving punishment or where the person is under suspension. Since the petitioner was already reinstated after suspension there was no occasion to not to grant him increments after 1986 till he retired. There is no provision under the Pension Rules or under the Rajasthan State Service Appellate Authority for denying pay scales to a employee who is serving with the State Government. Admittedly, there is no (8 of 8) [CW-3509/2014] departmental inquiry pending against the petitioner nor the same was initiated. In the circumstances to deprive him from the entire salary and increments after reinstatement till the date of retirement is clearly illegal and unjustified and this court holds the said action to be a case of exploitation. The petitioner who has not retired would have thus entitled to get his entire pay fixations made under the pay scale Rules from time to time and also be entitled to get the benefit of selection scales as applicable under the Rules. Arrears of the same be now released in his favour and accordingly his pension be also revised and gratuity and commutation of pension be also accordingly released, any other pensionary benefits including earned leave etc. would also be revised and released. The said exercise must be now done within the period of three months from the date of certified copy of this order being served on the concerned authority. The petitioner would also be entitled to receive interest on all the arrears @9% per annum. The cost of the writ petition is quantified Rs. 50,000/- which must be deposited and recovered from the concerned erring officer who did not make pay fixation of the petitioner while he was in service.
19. The writ petition is accordingly allowed.
(SANJEEV PRAKASH SHARMA)J. ns.