JUDGMENT V.M. Sahai, J.
1. The question that arises for consideration in this petition is whether the pension, gratuity, etc. of the petitioner, a retired Assistant Account, of the Indian Institute of Technology (in brief TIT) could be withheld because a first information report was filed against him after his retirement.
2. The petitioner retired on 31.12.91. The respondents filed a F.I.R. on 12/13.1.92 against the petitioner and withheld his pension and gratuity, etc.. under Central Civil Services (Pension) Rules. 1972 (in brief Rules) applied to IIT by a resolution. Admittedly the FIR filed in 1992 has not resulted in any criminal proceeding against the petitioner. How far the F.I.R. was Justified and what were its contents need not be, gone into.
3. I have heard Miss Pratima Srivastava, holding brief of Shri N. K. Srivastava, learned counsel for the petitioner and Shri S. N. Verma, senior counsel assisted by Shri Sharad Verma, learned counsel for the respondents.
4. Miss. Pratima Srivastava urged that the respondents after the retirement of the petitioner illegally withheld the pension and gratuity of the petitioner who retired on 31.12.1991 on the basis of F.I.R. dated 12/13.1.1992 though no criminal case is pending against the petitioner. It was further urged that the petitioner is entitled for 18% interest from the date of his retirement. On the other hand, Sri S. N. Verma urged that under Rule 8 (1) (b) read with Rule 9 (4) of the rules the respondents were well within their rights to withhold the pension and gratuity of the petitioner as F.I.R. was lodged against the petitioner. The petitioner was being paid his provisional pension.
5. The pension of an employee to whom rules apply can be withheld under Rule 8 (1) (b) if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. It is not claimed by the respondent that the petitioner has been convicted as provided in the rule. The respondents however, have taken action against the petitioner under Rule 9 [4| of the rules which is extracted below :
"(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 59 shall be sanctioned."
6. Admittedly, no departmental proceedings were pending nor they have been instituted against the petitioner. The respondents have withheld the pension as they have instituted judicial proceedings against petitioner. When a judicial proceeding shall be deemed to be instituted is explained by sub-rule (6} of Rule 9. It Is extracted below :
"(6) For the purpose of this rule :
(a) a departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is Issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date ; and
(b) Judicial proceedings shall be deemed to be instituted :
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance Is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court"
7. The respondents have filed a F.I.R. in the police station. No investigation had taken place nor the Magistrate has taken cognizance -of it. In paragraph 16 of the writ petition, the petitioner has stated that no investigation against the petitioner proceeded in pursuance of the F.I.R. nor charge-sheet was submitted by the police against him and no criminal case was registered against the petitioner. The assertion of the petitioner has vagulely been replied by the respondents in the counter-affidavit that it was expected the investigation would soon be completed and charge-sheet will be submitted shortly. The petitioner, in the rejoinder-affidavit, has denied that any criminal case is pending against him. No supplementary counter-affidavit has been filed by the respondents nor they have produced any material to show that investigation has been completed or that the charge-sheet has been submitted. A criminal proceeding is initiated under Section 190 of the Criminal Procedure Code when the Magistrate takes cognizance of it. In State of West Bengal and another v. Mohd. Khalid and others, 1995 (1) SCC 684, the expression, taking congnizance In Section 190 was construed as under :
".....Then, the question is as to the meaning of taking cognizance. Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of-that offence or taking steps to see whether there is any basis for taking judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings ; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."
8. Since on material on record, no cognizance has been taken by the Magistrate, the filing of F.I.R. did not amount to institution of judicial proceedings under Rule 9 16). Therefore, the condition precedent for applicability of Rule 9 (4) was not present.
9. The delay in payment of pension and gratuity, etc., of the petitioner was due to administrative lapse on the part of the respondents, therefore, the petitioner is entitled for 12% interest per annum on the amount of pension and gratuity etc., with effect from the date it became due.
10. In the result, the writ petition succeeds and is allowed. The respondents are directed to calculate the entire post-retiral benefits of the petitioner due to him and on the amount so calculated the petitioner shall be entitled to 12% interest per annum with effect from 1.1.1992 till the payment is made to the petitioner. The aforesaid directions shall be complied with by the respondents within two months from the date a certified copy of this order is produced before the respondent No. 3.
11. There shall be no order as to costs.