Punjab-Haryana High Court
Joginder Singh vs State Of Punjab And Others on 2 July, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No.12199 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.12199 of 2012
Date of decision:02.07.2012
Joginder Singh
......Petitioner
Vs.
State of Punjab and others
...Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. N.S. Sodhi, Advocate for the petitioner.
***
Tejinder Singh Dhindsa, J. (Oral)
The petitioner, who had been serving as Morter Mate in the Public Works Department, State of Punjab had retired from service on attaining the age of supperannuation on 31.05.2012. The precise grievance of the petitioner is that upon his retirement, his retiral benefits had not been released to him. A few facts require notice. On 29.07.1998, the petitioner had been placed under suspension in pursuance to a criminal complaint having been filed against him. There is also no dispute as regards the fact that the petitioner stands convicted by the Court of Additional Sessions Judge, Ferozepur. Against the order of conviction, the petitioner had preferred an appeal before this Court bearing CRA No.975-SB of 1999, which is pending adjudication and the sentence awarded to the petitioner had been ordered to be CWP No.12199 of 2012 -2- suspended. The petitioner was re-instated on 21.06.2005 in pursuance to him having submitted an affidavit (Annexure P-2), wherein he had been submitted that he be reinstated subject to the decision of the High Court in appeal.
Rule 2.2 (a) of the Punjab Civil Services Rules Vol.2, Chapter 2, which contains the general provision to grant of pension reads as under:
"2.2 (a) Recoveries from Pensions. Future good conduct is an implied condition of every grant of a pension. The Government, however, reserve to themselves the right of withholding or withdrawing a pension or any part of it the pensioner is convicted of serious crime or be guilty of grave misconduct.
In a case where a pensioner is convicted of a serious crime, action shall be taken in the light of the judgment of the court relating to such conviction.
In a case not covered by the preceding paragraph, if the Government considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order---
(i) Serve upon the pensioner a notice specifying the action proposed to be taken against him and the grounds on which it is proposed to be taken and calling upon him to submit, within sixteen days of the receipt of the notice or such further time not exceeding fifteen days, as may allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal ; and
(ii) Take into consideration the representation, if any, submitted by the pensioner under sub-clause (i) .CWP No.12199 of 2012 -3-
Where a part of pension is withheld or withdrawn the amount of such part of pension shall not ordinarily exceed one- third of the pension originally sanctioned nor shall the amount of pension left to the pensioner be ordinarily reduced to less than forty rupees per month, having regard to the consideration whether the amount of the pension left to the pensioner, in any case, would be adequate for his maintenance.
In a case where an order under clause (i) above is to be passed by the Government, the Public Service Commission shall be consulted before the final order is passed.
The decision of the Government on any question of withholding or withdrawing the whole or any part of pension under this rule shall be final and conclusive.
Explanation.- In this rule, the expression "serious crime" includes crime involving, an offence under the Official Secrets Act, 1923 ( 19 of 1923 ); and the expression "grave misconduct" includes the communication or disclosure of any secret, official code or pass-word or any sketch, plan, model, article, note, document or information such as is mentioned in section 5 of the Official Secrets Acts, 1923 ( 19 of 1923 ) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the state.
Note 1. A claim against the Government employee may become known and the question of making recovery may arise:-
(a) When the calculation of pension is being made and before the pension is actually sanctioned; or
(b) After the pension has been sanctioned.CWP No.12199 of 2012 -4-
The claim and the recovery may be of one or other of the following categories:-
(1) Recovery as a punitive measure in order to make good loss caused to Government as a result of negligence or fraud on the part of the person concerned while he was in service.
(2) Recovery of other Government dues such as over issues of pay, allowances or leave salary, or admitted and obvious dues such as house-rent , postal , Life Insurance premia, outstanding motor car, house building, traveling allowance or other advances.
(3) Recovery of non- Government dues.
In cases falling under ( a ) above , none of the recoveries mentioned in ( 1 ) to ( 3 ) above may be effected by a reduction of the pension about to be sanctioned except in the following circumstances:-
(i) Omitted ( ii ) when the pensioner by request made or consent given has agreed that the recovery may be made . If such request is not made or consent is not given by the pensioner , even sums admittedly due to Government such as house- rent , outstanding advances, etc., may not be recovered from pension. In such cases, however, the executive authorities concerned would have to consider whether they should not try to effect the recovery otherwise than from pension, for example, by going to a court of law, if necessary.
2. In cases falling under ( b ) above, none of the recoveries described in clauses ( I ) to (3) , may be effected by the deduction from a pension already sanctioned except at the request or with the express consent of the pensioner. Under rule 2.2 ( a ) , of this Volume, future good conduct is an implied condition of every grant of a pension and a CWP No.12199 of 2012 -5- pension can be withheld or withdrawn in whole or in part if the pensioner is convicted of serious crime or is gulity of grave misconduct. This, however, refers only to crime or misconduct occurring after the pensioner has retired from service, and the rule would not , therefore , cover a reduction of pension made for the purpose of retrieving loss caused to Government as a result of negligence or fraud on the part of the pensioner occurring before he had retired from service.
In cases where the pensioner does not agree to recovery being made even of sums admittedly due to Government, the concluding remarks under 1( ii ) above, will also be applicable.
Heads of offices should see that the last pay or leave salary prior to retirement shall not be paid until it is clear that a retiring Government employee has no outstanding dues Government. Sometimes, it may not be practicable to ascertain in time all the outstanding dues, while sometimes dues may exceed the amount of last pay or leave salary. In such case, it is the duty of the heads of offices ( in consultation with Treasury officers and Accountant General, Punjab. In the case of Gazetted officers), to bring promptly to the notice of the Accountant- General, Punjab, all the outstanding amounts by a separate communication, stating in detail the nature of recovery and why it has not been possible to effect it, from last pay or leave salary. The outstanding amounts should also be clearly and completely noted in the last pay certificates in sufficient detail with reference to the previous correspondence with the Accountant-General, Punjab , and if the recovery is to be effected from pension, it should be clearly recorded on the last pay certificate itself that the request or express consent CWP No.12199 of 2012 -6- of the pensioner in writing to the recovery from his pension has been obtained."
Clearly in terms of Rule 2.2 (a) reproduced hereinabove, it is open for the government to withhold or even withdraw the pension or any part, if the pensioner is convicted of serious crime or has been held guilty of grave misconduct.
A co-ordinate Bench of this Court in Gurbaksh Singh Vs. State of Punjab 2005 (3) SCT 573 had considered a similar claim and had held in the following terms:
"Insofar the aforesaid two queries are concerned, the stance adopted by respondents in the written statement is that the action taken by the respondents in depriving the petitioner or retiral benefitws emerges from Rule2.2(a) of the Punjab Civil Services Rules, Volume II. It reveals that the Government has a right to withhold or withdraw the payment of pension to an individual who is convicted of a serious crime of is guilty of grave misconduct. In the aforesaid circumstances, the employer has the authority to deprive the petitioner of his retiral benefits even after he had attained the age of superannuation on 31.01.1993. The fact that the petitioner was convicted on 31.10.1992 and further that the aforesaid order of conviction was operational till 12.10.1998, has not been disputed by the learned counsel for the petitioner. It is, therefore, apparent that the action of depriving the petitioner of his pensionary benefits after his having attained the age of superannuation on 31.01.1993 could not have been assailed till the petitioner's acquittal on 12.10.1998. In view of the above, it is natural to conclude that the non-release of retiral benefits till the actual acquittal of the petitioner on 12.10.1998, can not be stated to be justified."
CWP No.12199 of 2012 -7-Accordingly, in the light of the fact that the petitioner stands convicted at the hands of Competent Court and even though, an appeal against the same is pending adjudication before this Court, the claim of the petitioner as raised in the present petition can not be granted to him at this stage. Suffice it to observe that the claim of the petitioner for retiral benefits would be taken up for consideration by the Competent Authority in point of time, when the petitioner is acquitted, if at all.
Petition accordingly, dismissed.
July 02, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE