Pension benefits cannot be withheld solely due to a pending FIR; charges must be framed for withholding such benefits.

Judgment

Mr. Harsimran Singh Sethi, J.

In the present petition, the grievance of the petitioner is that though the petitioner had already retired on attaining the age of superannuation on 31.01.2018, but, the pensionary benefits have not been given to him and that too without any valid justification.

2. Learned counsel for the petitioner argues that there is no impediment in the release of the pensionary benefits and, therefore, the respondents be directed to release the same along with interest.

3. Upon notice of motion, the respondents have filed the reply wherein, the respondents have mentioned in paragraph No.3 of the reply that there is criminal case registered against the petitioner under Section 409, 420, 467, 468, 471 & 120-B IPC as well as under Section 13(1) (d) of the Prevention of Corruption Act, 1988 bearing FIR No. 17 dated 20.08.2009, wherein the petitioner has been named as one of the accused. Therefore, once the criminal proceedings are pending against the petitioner, release of all the pensionary benefits is not admissible and some of the benefits have rightly been withheld by the Department.

4. Learned counsel for the petitioner rebut the contention of the respondents and submits that in the present case, with regard to the same FIR No. 17, granting the sanction to prosecute has already been denied by the respondent vide order dated 19.07.2021 (Annexure P-3) and hence, once there is no sanction to prosecute the petitioner, it cannot be said that any criminal proceedings are pending against the petitioner so as give jurisdiction to the Department to withhold the pensionary benefits.

5. I have heard learned counsel for the parties and have gone through the record with their able assistance.

6. From the facts which has been stated hereinbefore it is clear that there is an FIR No.17 dated 20.08.2009 registered against the petitioner which is pending wherein the petitioner was also named as one of the accused. The question which arises for adjudication is whether the pendency of the said FIR No.17 dated 20.08.2009 will give the jurisdiction to the respondents to withhold the pensionary benefits of the petitioner or not.

7. The question as to on which date it can be said that the criminal proceedings are pending against the employee has already been settled by the Supreme Court of India in Civil Appeal No. 4379 of 1990, Union of India and others Vs. K.V. Janakiraman and others wherein it has been held that it is only on the date when the charges are framed in pursuance to the FIR against the accused, the criminal proceedings can be treated to be pending and mere registration of FIR is not be treated as a pendency of the criminal proceedings. The relevant paragraph of the judgment is reproduced as follows:

16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary