Point of Law: Service matter - Pension to State Employees - A criminal appeal cannot be taken out from definition of “judicial proceeding” and thereby, if one is acquitted but appeal thereupon is pending, he/she would be governed by Regulation 351-AA and thereby, entitled to provisional pension.

JUDGMENT :

Munishwar Nath Bhandari, J.

1. The State has preferred this appeal to challenge the judgment dated 16.03.2021 passed by learned Single Judge whereby the writ petition to seek full pension and gratuity apart from other retiral benefit was allowed.

2. The non-appellant/petitioner was appointed on the post of Constable on 27.12.1979. He was promoted to higher posts from time to time and thereupon retired on attaining the age of superannuation on 31.03.2020. Prior to retirement, an FIR was lodged against him for offence under Sections 307, 332, 353, 427 Indian Penal Code and Section 5 of Explosive Act. Apart from the aforesaid, a complaint was also registered by one Umesh Chand Mishra alleging commission of offence under Section 302 Indian Penal Code apart from other offences and thereby, another FIR was registered with investigation by CBCID. The charge-sheets in the cases were filed by the police, however, after the trial, non-appellant/petitioner was acquitted in both the cases. The State Government preferred an appeal against the order of acquittal and was registered bearing no. 3374 of 2013. The State appeal was admitted by this Court on 24.10.2013.

3. The department did not initiate departmental proceedings in reference to the commission of crime but non-appellant/petitioner was placed under suspension by the order dated 24.07.1996. The suspension was withdrawn on 26.12.1996.

4. The non-appellant/petitioner having retired on 31.03.2020, filed a writ petition to seek full pension and other retiral benefits when several representations sent by him could not get favourable result. The claim of full pension and other retiral benefit was not only in reference to rule but on the ground of parity because other co-employees were extended benefit of full pension despite pendency of the State appeal against the order of acquittal in their cases also. Learned Single Judge allowed the petition with a direction to the respondents to extend benefit of all retiral benefits within six weeks otherwise to extend benefit of 12% interest on delayed payment.

5. Learned Standing Counsel submits that as per Civil Service Regulations Relating to Pension to State Employees, one was made entitled to provisional pension if any departmental or judicial proceedings or enquiry by the Administrative Tribunal is pending. Learned Single Judge ignored Regulation 351-AA while allowing the writ petition. Pendency of the appeal against the order of acquittal is judicial proceeding. In view of the above, judgment of learned Single Judge is in ignorance of the Regulations as well as judgment by this Court. The prayer is, accordingly, to set aside the judgment of learned Single Judge and allow the appeal.

6. Per contra, learned counsel for the respondents submits that pendency of the criminal appeal does not fall in the definition of “judicial proceeding”. Learned Single Judge thus, allowed the writ petition by referring to the judgment of this Court wherein it was held that pendency of the criminal appeal should not be a bar to grant of retiral benefits. The prayer is, accordingly, to dismiss the appeal.

7. We have considered the rival submissions of the parties and perused the record.

8. It is a case where non-appellant/petitioner was made entitled to the provisional pension during pendency of the appeal against the order of acquittal. The facts disclosed earlier show two FIRs against the non-appellant/petitioner but after the trial, he was acquitted. The State Government preferred a criminal appeal and is pending in the Court.

9. The only question before us is as to whether pending criminal appeal would fall in the definition of “judicial proceeding” so as to attract Regulations 351-AA and 919-A(3). For ready reference, both the provisions are quoted hereunder :

“351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Adminis