1. Heard learned counsel for the parties. As the controversy is in narrow compass, learned counsel for the petitioner has urged that there should be final disposal of the matter, to which learned counsel appearing for the respondents could not object. Hence, Rule. Service of Rule on behalf of State is waived by Mr. Rahul Dave, learned Assistant Government Pleader. Rule is fixed forthwith, with the consent of the learned counsel for the parties.
2. The petitioner by way of filing this petition under Article 226 of the Constitution of India has approached this Court with following prayers :
1. Your Lordships may be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or direction quashing and setting aside the impugned orders dated 25.10.2011 and 09.01.2012 passed by the respondents no.3 and 2 respectively as being illegal, arbitrary, violative of constitutional guarantee enshrined under the Constitution of India.
2. Declare that the petitioner is entitled to get full amount of gratuity and commuted amount of pension/regular pension as if the petitioner has retired on superannuation w.e.f. 31.10.2011 in normal course, without the disqualification as mentioned in the impugned order.
3. Direct the respondents to pay the entire amount of gratuity and commuted amount of pension due and payable to the petitioner as if the petitioner has retired on superannuation w.e.f. 31.10.2011 in normal course.
4. Pending admission hearing and till final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to pay the remaining amount of gratuity and commuted amount of pension after withholding 10% of the same, in the interest of justice.
5. Your Lordships may be pleased to grant such other and further relief as may be deemed fit, just, proper and necessary in the interest of justice together with costs.
3. The petitioner in this petition has essentially challenged the orders dated 09.01.2012 and 25.10.2011 where under the petitioner is denied the benefit of regular pension as well as gratuity on account of pendency of the application made in criminal case bearing no. 05 of 2010 pending in the Court of CBI at Ahmedabad. The application which has been held against the petitioner for denying him the aforesaid benefit which is reproduced at Annexure ‘B’ in the compilation (Ex.206) filed by accused no.12 who filed the application for proceedings and initiating action for committing contempt of court, as despite thereof Supreme Court’s directions with regard to handcuffing of accused persons, the accused was handcuffed, and in such circumstances, the application was made on 04.05.2011. In this application, the petitioner who has been named as one of the contemner is shown at serial no.1 who happened to be retired at his attaining the age of superannuation on 31.10.2011 and accordingly his pension papers and pension should have been processed. However on 25.10.2011, an order came to be passed by Commandant saying that the petitioner’s pension would not be processed on regular basis on account of the pendency of the proceedings under criminal case no. 05/2010 pending in CBI Court. The respondent authority passed an order on 09.01.2012 permitting pension only on provisional basis in the light of the pendency of that application. Hence, the petition.
4. The respondents have appeared and filed reply and held out only the pendency of the application and submitted that as and when CBI case is disposed of, necessary steps would be taken. Otherwise, since the case of the petitioner, in view of the provision of Rule 145 (2), as two years period is not elapsed from the date of the retirement and the case is pending, therefore, there was no action for giving gratuity or regular pension to the petitioner.
5. The Court is of the considered view that petition is required to be allowed for the following reasons namely the Rule, which is subject of the service and denying the regular pension to the petitioner is required to be set out. Rule 145 (2) is as follows :
“(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. order of the competent authority on the report of the Inquiry Officer’s not issued and the judgment 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 deathcumretirement 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 subrule (1).
(ii) 100 per cent of gratuity as determined under sub rule (3) of rule 142 subject withholding of after 10 per cent or fifteen thousand rupees which ever is less.”
5. Thus, plain reading of the aforesaid Rule, would show that the eventuality in which pension is to be sanctioned on provisional basis and gratuity is clearly spelt, namely filing of FIR and/or issuance of chargehseet. In the instant case, the mere application at the instance of accused in respect of initiation of contempt proceedings in light of the allegations made in the application cannot be held out against the petitioner for denying the pension and pendency of application would not be in any way amounting to show that there exists any criminal case or the proceedings which would permit the authority to invoke Rule 145 of the Rules. On this basis, when the entire controversy is viewed, then it would be absolutely clear that authorities were not justified in invoking the Rule 145 as there is nothing else against the petitioner so as to invoke Rule 145. Hence, the petition is allowed. The orders dated 25.10.2011 and 09.01.2012 are quashed and set aside. The authority is directed to process the pension and gratuity qua the petitioner if there is nothing against the petitioner except the application made by the accused no. 12 in criminal case no. 05 of 2010. The same should be processed within 45 days from the date of receipt of this order and payment be made thereafter. Rule is made absolute. No costs.
(S.R.BRAHMBHATT, J.) AS