ORDER

1. This petition is of year 2016 and pleadings are complete, therefore, with consent of learned counsel for the parties, it is heard finally

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner has not assailed any specific order, but sought a direction for the respondents to release his gratuity amount and also full pension with interest @8.5% per annum.

3. As per the facts of the case, the petitioner after attaining the age of superannuation, retired w.e.f. 31.12.2015 from the post of Assistant Sub-Inspector (A.S.I.) from the Police Department. When he was in service, a Lokayukt had registered a case against him and the said case was pending and during the pendency of the said case, the petitioner got retired from service and is being paid anticipatory pension @90% and also released the amount of gratuity to that extent only. The challan was filed on 5.2.2016 and the charges were framed by the Special Court on 19.2.2016.

4. The criminal case is still pending. The petitioner submits that as per rule 9 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 [hereinafter referred to as 'the Rules, 1976'], only the Governor can withhold the pension that too under the circumstance when the employee is held guilty.

5. But, here in this case, there was no charge against the petitioner at the time of retirement, therefore, he submits that withholding of pension and gratuity is illegal and contrary to the law laid-down by the Supreme Court in the case of Union of India v. K.V. Jankiraman reported in (1991) 4 SCC 109 and further reliance has been placed upon the order dated 10.3.2016 passed in W.P. No. 8514/2013 [Prahlad Amarchya v. Principal Secretary, State of M.P. and another] by the Indore Bench of this Court.

6. Per contra, learned Deputy Government Advocate for the respondents/State, relies upon the reply filed by them. As per the respondents, the provisions of rule 9(4) and rule 64 of the rules, 1976, clearly provide that when a Government servant is retired and against whom, any departmental or judicial proceedings are instituted, a provisional pension and death-cumretirement gratuity as provided in rule 64, shall be sanctioned.

7. It is also submitted by the respondents that the case on which the petitioner is placing reliance, is not applicable in the present case because the said case is applicable in the matter of promotion, saying that if an employee is considered by the DPC and is facing any departmental or judicial proceeding, the recommendation of the DPC shall be kept in the seal cover. Accordingly, the respondents have claimed that the petition is without any substance and the contentions raised by learned counsel for the petitioner, are meritless, therefore, the petition should be dismissed.

8. The basic contention as raised by learned counsel for the petitioner is that on the date of retirement, there was no departmental or judicial proceedings pending against the petitioner, as he retired on 31.12.2015 but challan has been filed by the Lokayukt on 5.2.2016 and charges were framed by the Special Court on 19.2.2016, therefore, in view of the law laiddown by the Indore Bench in W.P. No. 8514/2013, he is entitled to get 100% pension and gratuity because on the date of retirement, there was no judicial proceeding pending against him.

9. The Indore Bench in the aforesaid order, has observed that as per rule 9(6)(b), judicial proceeding shall be deemed to be instituted in respect of a criminal case, on the date on which the cognizance has been taken and the Magistrate takes cognizance on the basis of that report, therefore, judicial proceedings cannot be said to be pending on the date of retirement.

10. However, from bare reading of the respective provision i.e. rule 9(6)(b) of the Rules, 1976, which is quoted hereinbelow:

"9. Right of governor to withhold or withdraw pension.

(6) For the purpose of this rule - (b) judicial proceedings shall be deemed to be instituted