2. The learned counsel for the applicant submitted that the applicant is due to retire on 29.02.2016. However he has been informed vide the impugned order dated 17.07.2015 (Annexure A-1) that in view of criminal case pending against him he shall not be paid gratuity on retirement, during pendency of departmental/judicial proceedings. It has further been informed that there is no provision of payment of commutation on provisional pension which shall be paid to him during pendency of judicial proceedings against him.
3. Learned counsel for the applicant submitted that this issue has been settled by Hon'ble Supreme Court, by their judgment in the matters of State of Jharkhand v. Jitendra Kumar Shrivastava, (2013) 12 SCC 210 wherein, it has been held that pension and gratuity are not bounty but property and such earned benefits cannot be taken away without complying with due process of law. Therefore, respondents cannot withhold gratuity and regular pension of the applicant during pendency of judicial proceedings, which pertain to a criminal case under Section 498(A) of Indian Penal Code, and thus in regard to a case in personal capacity of the applicant which has nothing to do with his official duties.
4. Heard the learned counsel for the parties and perused the pleadings of the respective parties and documents annexed therewith.
5. The provision of withholding of gratuity and payment of provisional pension is provided under Rule 69 of Central Civil services (Pension) rules, 1972 (hereinafter referred to as “CCS Rules”) which is reproduced as under:—
‘69. Provisional pension where departmental or judicial proceedings may be pending
1(a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officers during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority.
(c) No gratuity shall be paid to the Government Servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon;
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i)(ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.’
Thus there is specific provision under the CCS Rules to pay provisional pension in place of regular pension and withhold the gratuity and payment of regular pension until the final conclusion of the departmental or judicial proceedings. Thus, the applicant does not get any benefit by Jitendra Kumar Shrivastava (Supra), as there is specific provision in rules for withholding of gratuity and regular pension, as against absence of such rules in Bihar Pension Rules, 1950, the reason for which Hon'ble Supreme Court held that pension and gratuity cannot be taken away without complying with due process of law.
6. Since in case of CCS Rules the specific provision is there for withholding of gratuity as well as regular pension, I do not find any fault with the impugned order dated 17.07.2015 (Annexure A-1). Thus there is no justification for issuing a direction to release all retiral dues and regular pension to the applicant on his superannuation, when criminal case is still pending against him.
7. In view of it, the Original Application is dismissed with no order on costs.