JUDGMENT :

1. Heard Ms. D. Borgohain, learned counsel for the petitioner. Also heard Mr. K. Konwar, learned Additional Advocate General, Government of Assam assisted by Mr. P. Handique, learned counsel representing the P&RD Department, Assam, Mr. S. K. Medhi, learned Standing Counsel for the Accountant General (A&E), Assam and Mr. A. Chaliha, learned Standing Counsel for the Finance Department, Assam.

2. The issues:-

i. The question involved in the present writ petition is whether the term used “conclusion of a proceeding and final order passed” in Rule 22 (1) of the Assam Services (Pension) Rules, 1969 (herein after referred as Rules, 1969), in respect of a criminal proceeding shall mean conclusion of a proceeding when a person is convicted or whether such finality and conclusion of proceeding shall attain finality after determination of the appeal as provided under Section 393 of the Cr.P.C.

ii. The second question will be whether under Rule 21 of the Rules, 1969, the Governor is empowered to withheld the provisional pension permanently or for a specified period or a regular pension which has already been granted.

3. The facts:

The facts in the present case which is not in dispute can be summarized as follows:-

I. The husband of the present petitioner, who was a Government servant and serving as UDA and I/C Accountant of Dhemaji Zilla Parishad was arrested in connection with Dhemaji Police Station Case No. 156/2011 under Section 468/471/409 of the Indian Penal Code and under Section 7 of the P.C. Act, 1988 on 26.05.2011.

II. Subsequently the Commissioner, Panchayat & Rural Development Department by an order dated 30.05.2011 placed the petitioner under suspension w.e.f. 26.05.2011 (form the date of arrest). The order dated 30.05.2011 reveals that based on the report of the CEO, Dhemaji Zilla Parishad that financial irregularities to the tune of Rs. 1.88 crores of public fund was committed by the petitioner, the petitioner has been placed under Suspension. A departmental proceeding was also initiated.

III. The respondent authorities without completing disciplinary proceeding, kept him under suspension for more than 13 months and also did not release the arrears of salary, subsistence allowance which compel the petitioner had to file a writ petition being WP(C) No. 3675/2022 before this Court, which was disposed of under its order dated 12.09.2012, directing the respondent authorities to take a considered decision with regard to revocation of suspension, payment of subsistence allowance for the period of suspension and release of arrears of salary as claimed in the writ petition by the petitioner within a period of six weeks.

IV. Pursuant to such order dated 12.09.2012, the respondent authority under its letter dated 19.10.2012, re-instated the petitioner in service.

V. Subsequently, on 24.08.2017, a departmental proceeding was initiated by issuing show cause notice. Enquiry Officer was appointed and a day prior to the retirement of the petitioner on 29.11.2017, the petitioner was removed from service as punishment.

VI. Such decision was again challenged by filing a writ petition being WP(C) No. 470/2018, before this Court which was disposed of under its order dated 11.02.2019 by setting aside the order of removal and with a liberty to the employer to start de-novo proceeding.

VII. Alleging to non compliance of the order dated 11.02.2019 passed by this Court in WP(C) No. 470/2018, the petitioner filed a contempt petition being numbered as Cont.Case(C) No. 581/2019, which was disposed of under its order dated 11.08.2020, by issuing a direction to all the respondent contemnors to do the needful to ensure that the provisional pension is paid to the petitioner on or before 01.10.2020. While passing such order, this Court concluded that under Rule 22(1) of the Rules, 1969, the petitioner cannot be deprived of provisional pension.

VIII. While the contempt proceeding was pending, the petitioner was convicted in the criminal proceeding being Special