1. Heard learned advocate Mr.Vaishnav appearing for the applicant and learned AGP Mr. Janak Raval for respondent-State.
2. The applicant has taken out present application seeking below mentioned relief/s:
"7(B).
Prayers made in the main Special Civil Application be granted and the respondent be further directed to release the amount of Rs.97,000/- retained by the respondents pursuant to the order dated 9/05/2008 of this Honourable Court.
7(C). Direct the respondents to forthwith finalise the pension case and pay final pension and not "provisional pension" and further the same be revised in accordance with the benefits accruing to the applicant in accordance with the 6th Pay Commission recommendations together with arrears w.e.f. 1/1/2006."
3. On earlier occasion while considering the petition, the Court passed order dated 09/05/2008 in Special Civil Application No.23658 of 2007. In the said order, the Court took into account the fact that on the eve of retirement of the petitioner i.e. on 30/06/2007, the petitioner received a cover containing blank paper which was later on claimed to be charge sheet forwarded by the respondents. The Court has recorded that the said cover contained only blank paper and the petitioner was not served with the charge sheet. Learned Single Judge also took into consideration that even if the contentions of the respondents that the petitioner is served with the charge sheet were to be accepted then also the petitioner should be paid other retiral benefits after retaining sum of Rs.97,000/-. In The said order dated 09/05/2008, the Court also made below mentioned observations:
"6. Shri Vaishnav, leaned advocate for the petitioner further relies on the decision of this Court reported in 2001 (2) GLH 680 in para 22 whereby this Court thought it fit that attempts should be made by the Government to initiate inquiry against the Government servant without awaiting till the last date of his service and after considering the facts and circumstances of the case, the learned Single Judge was of the opinion that in a given case such action can be construed as victimisation.
6.1. Shri Vaishnav, learned advocate further submits that pension is a right akin to the right to property and a legal right and not a bounty or charity of a master to an employee.
7. Learned AGP Ms. Asmita Patel appearing for the respondent authority submits that provisional pension of the petitioner is fixed and two years have not lapsed from the date of retirement, therefore, balance amount of the gratuity also cannot be released.
8. Prima facie this Court is of the opinion that bare perusal of the charge sheet reveal vague allegations against the petitioner which relate to a period of 1996-1997 where the petitioner had engaged labourers to perform the duty of disliting of Canal and expenditure for Rs.79,000/- and odd. For the above work, the petitioner in the capacity of Work Assistant alone cannot be blamed particularly, when 128 employees whose explanation were sought for were permitted to be retired and their dues were also released and the petitioner is being discriminated solely on the ground of serving of a cover containing blank papers which were subsequently termed as a charge sheet.
9. In the above circumstances, I find it just and proper to issue Rule and direct the respondents to release the amount of pension and gratuity including the commuted pension and other benefits of leave in balance by permitting the respondents to keep balance of Rs.97,000/- out of retiral dues."
4. Since the said order, until now, the departmental proceedings have not commenced. It is the case of the petitioner that until now even Inquiry Officer has not been appointed.
5. The said facts are not disputed by learned AGP.
6. He has submitted, on the basis of oral instruction received by him today from the concerned officers that within 20 days' time, the Inquiry Officer will be appointed.
7. As of today, the fact remains that even after the respondent's claim to the effect that in January, 2007, the petitioner was served with charge sheet is to be believed then also, the fact emerges that with reference to the charge sheet allegedly issued in June, 2007 and even after completion of about five years i.e. in May, 2012, the Inquiry Officer has not been appointed and the proceedings have not commenced.
8. In view of the details recorded by learned Single Judge in the said order dated 09/05/2008, it appears that the charge sought to be leveled against the petitioner relates to period of 1996-97.
9. Thus, in connection with the charges related to year 1996-97, the charge sheet was served in June, 2007 and thereafter, until now Inquiry Officer has also not been appointed.
10. In this background, the petitioner has come forward with present application seeking above quoted reliefs.
11. In support of the application, the applicant has averred in para-4 to 6 of present petition that:
"4. The Applicant states that it was the stand of the Respondents in the reply filed in the main Petition that the amount of gratuity cannot be paid as two years have not passed from retirement and as the departmental inquiry is pending. On this count, this Honourable Court passed the order to the effect that an amount of Rs.97,000 be kept in balance.
5. The applicant states that now even after more than 4 years from the date of retirement and date of issue of the charge sheet i.e. 29/06/2007, neither has an Inquiry Officer been appointed nor any action taken, and therefore it is apparent that the observations made by this Honourable Court, prima facie, stand confirmed. The Applicant states that the applicant is not being paid revised pensionary benefits as per 6th Pay Commission and has also not been paid difference of revision from 1/1/2006 to 30/06/2007 under the pretext that the petition is pending. The Applicant is also still being paid provisional pension.
6. The Applicant states that the Applicant is constrained to approach this Honourable Court as:
It was the case of the respondents that the amount of Rs.97,000/- as retained cannot be paid till two years from the date of retirement as the inquiry is pending, four years after the date of retirement, even an inquiry officer has not been appointed. Hence the amount retained of Rs 97,000/- ought to be paid to the applicant.
Pension case of the applicant be directed to be finalized in accordance with the prayers in the main Petition.
Pensionary benefits as per 6th Pay Commission, though due to the applicant as revised together with arrears of revision of pay with effect from 1/1/2006 till the date of retirement i.e. 30/06/2007 ought to be paid."
11. The Court directed the office to issue notice vide order dated 25/04/2012 making the notice returnable on 30/04/2012. Learned advocate Mr.Raval, AGP has appeared and submitted that some more time to file reply is required. However, the above factual aspects are not disputed. All that he claims is that since departmental proceedings are contemplated against the petitioner the amount has not been paid. Is is also claimed that by virtue of order dated 09/05/2008, the respondent is directed to retain a sum of Rs.97,000/-. It is pertinent to note that even after the said order, though almost four years have passed, the respondent has not even appointed an Inquiry Officer.
12. In such circumstances, it would not be proper to permit the respondents to continue to withhold the amount towards gratuity.
13. In this context reference is required to be made to Rule-145 of Gujarat Civil Services (Pension) Rules, 2002 which, reads thus:
"145. Provisional payment of pension and gratuity where charge sheet is issued or judicial proceedings are instituted in respect of the Government employee against whom the departmental inquiry is pending :
(1) In case of a Government employee against whom the Departmental Inquiry is initiated or prosecution is granted (i.e. charge-sheet is issued or FIR is filed, as the case may be) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e. the order of the competent authority on the report of the inquiry officer is not issued or the judgment of trial court is not delivered, as the case may be), the Pension Sanctioning Authority shall sanction provisional payment of full amount of pension as determined under sub-rule (3) of rule 142. No provisional payment of death-cum-retirement gratuity shall be sanctioned.
(2) In case of a Government employee against whom the Departmental Inquiry is initiated or prosecution is granted (i.e. charge sheet is issued or FIR is filed, as the case may be) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e. the order of the competent authority on the report of the inquiry officer's not issued or the judgement of trial court is not delivered, as the case may be), and two years have lapsed since the date of retirement, the Pension Sanctioning Authority shall sanction the provisional payment of pension and death-cum-retirement gratuity as under:-
(i) 100 per cent of pension as determined under sub-rule (3) of rule 142 if the same is not sanctioned under sub-rule (1).
(ii) 100 per cent of gratuity as determined under sub-rule (3) of rule 142 subject to withholding of after 10 per cent or fifteen thousand rupees which ever is less."
14. The respondents are entitled to withhold 10% or 15,000/- whichever is less in the event any proceedings are pending. Under the circumstances, the order dated 09/05/2008 is modified and below mentioned order is passed:
14.1. The respondents are permitted to take appropriate decision in accordance with Rule 145 of Gujarat Civil Services (Pension) Rules, 2002 and after retaining the amount as permitted by the rule, the respondent shall pay the balance amount of gratuity out of Rs.97,000/- which have been permitted to be withhold to the petitioner within two weeks from service of certified copy of present order.
14.2. It is clarified that for the inordinate delay caused by the respondents in making payment for amount of gratuity, the petitioner is entitled to be paid the interest for the interim period, however, any order is not passed at this stage so far as interest is concerned and appropriate orders shall be passed at the time of hearing of the petition.
14.3. So far as the petitioner's grievance about request for provisional pension is concerned, the respondents are directed to take necessary action and complete the formalities in accordance with above mentioned rules.
14.4. Such formalities shall be completed within a period of four weeks from receipt of certified copy of present order. In addition to the service of the order in regular course by registry, the petitioner is permitted to serve copy of present order directly to the concerned respondents authorities who shall, in turn, take necessary steps within time limit mentioned herein above.
15. With the aforesaid clarification, the Civil Application stands disposed of.
(K.M.THAKER, J.) (ila) Top