IMPORTANT POINT
Pensionary benefits cannot be withheld without cognizance taken by the competent court; leave encashment requires a specific decision by the authority to withhold.

JUDGMENT :

C. HARI SHANKAR, J

1. The respondent was appointed to Grade-II of the Delhi Administration Subordinate Service[DASS] on 14 August 1986. He was thereafter promoted to Grade-I of the DASS and was appointed ad hoc to the DANICS[Delhi, Andaman & Nicobar Islands, Lakshadweep, Dadra & Nagar Haveli, Daman & Diu Civil Service] w.e.f.[with effect from] 28 February 1995 and 20 May 2015.

2. While in service, FIR No. 58/2006 was registered against the respondent by the Anti Corruption Bureau[“ACB” hereinafter], Delhi, under Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 120B of the Indian Penal Code, 1860.

3. The respondent was compulsorily retired under FR 56(j)[ (j) Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of less than three months in writing or three months’ pay and allowances in lieu of such notice:

(i) If he is, in Group ‘A’ or Group ‘B’ service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;

(ii) in any other case after he has attained the age of fifty-five years;] on 25 November 2019. It is not in dispute that the FIR was still pending before the competent Tribunal Court at the time of compulsory retirement of the respondent.

4. The ACB submitted a closure report on 2 December 2020 before the learned Special Judge (PC Act), ACB-II, Rouse Avenue Court. Vide order dated 18 December 2021, the learned Special Judge rejected the closure report and directed the matter to be investigated further by the ACB.

5. Consequent on his compulsory retirement, the respondent sought release of his pensionary benefits. The GPF and GEIGS[Government Employees’ Group Insurance Scheme] were released to the respondent and provisional pension was paid to him. However, final pension, gratuity, commuted pension and leave encashment had not been paid to the respondent. Repeated representations by the respondent having failed to elicit any favourable response from the petitioner, the respondent moved the Central Administrative Tribunal[“the Tribunal” hereinafter] by way of OA 506/2023, seeking release of the retiral benefits due to him.

6. The said OA stands disposed of by the Tribunal by way of the impugned order dated 18 January 2024.

7. Before the Tribunal, two issues arose. The first was with respect to withholding of the respondent’s pensionary benefits and the second was with respect to withholding of leave encashment due to the respondent.

8. Insofar as the withholding of pensionary benefits is concerned, the Tribunal observed that, by virtue of Rule 9(6)(b)(i) [(6) For the purpose of this rule, -

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(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;”] of Central Civil Services (Pension) Rules, 1972[“the Pension Rules” hereinafter], pension would be withheld only if cognizance have been taken by the competent criminal court in the proceedings against the official concerned. Inasmuch as no cognizance have been taken by the Special Court, the Tribunal directed release, to the respondent, of his pensionary benefits.

9. Apropos leave encashment, the Tribunal noted that withholding of leave encashment had to abide by Rule 39(3) [(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings agai