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time of his retirement i.e., 31.08.2016 the following FIRs/criminal cases were pending against him.

It is admitted fact that at the time of his retirement

only FIR No.100/10 Under section 498A/406/34 IPC

Police Station Neb Sarai, charge has been framed

against the applicant and in respect of rest of the FIRs,

no charges were framed against the applicant on the

date of his superannuation. Because of the pendency

of the Criminal cases against the applicant, the

respondents vide order dated 14.9.2016 sanctioned

only provisional pension under rule 69 of the

CCS(Pension) Rules. Similarly, because of the

pendency of the Criminal Cases, his leave encashment

under rule 39 (3) was withheld vide order dated

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25.10.2016. On 25.05.2017, the applicant made representation seeking release of his regular pension and other retirement benefits on the date of his superannuation alongwith the interest on the entire period of delay in granting the retirement benefits. The respondent did not take timely action on the representation of the applicant and he has filed OA No. 2184/2017. The Hon"ble Tribunal vide its order dated 11.12.2018 directed the respondents to decide the representation of the applicant. Vide order dated 10.1.2019, the respondents rejected the representation of the applicant. Being aggrieved, the applicant has come to this Tribunal in the present Original Application, seeking the following relief:-

"8.1 To quash and set aside the order dated 10.1.2019 whereby rejecting the claim of applicant of releasing retiral benefits and interest on the delayed payment has been rejected.

8.2 To quash & set-aside the order dated order dated 14.09.2016 whereby only provisional pension under Rule 69 of CCS Pension Rules is being granted to the applicant on the date of retirement i.e 31.08.2016 due to pendency of judicial proceeding against the applicant and order 25.10.2016 whereby the pensionary benefits including leave encasement under Rule 39(3) is being denied to the applicant under rule 9 of CCS (Pension) Rules and to further direct the respondents to release the regular pension and retrial benefits to the applicant fourthwith and further the applicant be granted the 12 % cumulative interest cumulative on the delayed

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retrial benefits i.e. from the date of superannuation i.e. 31.08.2016 to the date of actual payment."

3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

4. The applicant in his OA as well as through arguments by the learned counsel on his behalf have taken the following grounds for seeking the aforementioned relief:-

(i) The respondents have not applied their mind to the interpretation of Rule 9 (1) of the CCS (Pension) Rules, 1972 read with rule 69 of the said rules. There is no application of mind before passing the impugned order dated 10.1.2019 and the respondents have completely misinterpreted the provisions under the aforementioned rules. The applicant was not involved in grave misconduct because of which the provision of rule 9 could be exercised against the applicant.

(ii) Withholding the payment of leave encashment under rule 39 (3) of the CCS (Leave) Rules 1972 was completely against the established law. Because withholding of leave encashment should be resorted to

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only in those cases where there is a likelihood of money becoming due from the applicant on account of embezzlement of government fund or loss of public money. As the criminal cases pending against the applicant does not involve any proceeding regarding embezzlement of government fund or loss of public money, the respondents should not have withheld the payment of leave encashment under rule 39 (3) of the CCS (Leave) Rules, 1972.

(iii). As there is no delay on the part of the applicant regarding processing of his retirement and the papers regarding his retirement benefits, the delay is purely on account of administrative reasons. In view of this, the applicant is entitled to claim interest on the delayed payment of his retirement benefits. (iv). That the applicant rendered unblemished service to the respondents for nearly 30 years. He had a fundamental and statutory right for getting regular pension and the retirement benefits and there is no proven grave misconduct after the conclusion of any disciplinary proceeding and criminal proceeding. Similarly, there is no likelihood proven misconduct during his service period on account of his conduct as

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public servant. The criminal cases on account of matrimonial dispute between the son and the daughter-in-law of the applicant and are nothing to do with the conduct of the applicant as civil servant or as a government employee during his service period in relation to his discharging of his duties as such.

5. The learned counsel for the applicant has cited the following judicial pronouncements in support of the claim of the applicant.

(i). Retired Sub-Inspector Yad Ram No.D/1653.

vs. Dy. Commissioner of Police ( OA No. 870/2004 decided on 29.11.2004 by the Tribunal at PB.

(ii). The judgment of the Apex Court in the case of

S.K. Dua. Vs. State of Haryana & Anr. ( 2008) (3)

SCC 44.

(iii). The judgment dated 07.12.2015 of Delhi High Court in WPC No. 9767 of 2015 in Ram Kishan vs. Union of India & Ors.

(iv). The order dated 28.3.2016 of the Tribunal in OA No. 3029/2013 in Bhram Dutt Yadav vs. GNCTD.

(v). The order dated 20.09.2011 of the Tribunal in OA No.1611/2011 in Brijendra Singh Vs. U.O.I.

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(vi) The order dated 4.1.2006 of the Tribunal in OA No.1605/2005 in Mam Chand vs. U.O.I.

6. The learned counsel for the applicant has stated that in Yad Ram vs. Dy.Commissioner of Police in OA No.870/2004, this Tribunal has decided a similar case in which FIR No. 304 of 1999 under section 498A/406 of IPC was discussed. In para 6 of the said order the phrase "misconduct" has been interpreted by the Hon"ble Supreme Court. The relevant portion of the said order reads as under:-

6. On the question of what constitutes 'grave misconduct' under Rule 9 of the CCS (Pension) Rules, references have been made to the decisions of the Hon "Hon"ble Supreme Court in Union of India and Others vs. B. Dev ((1998) 7 SCC 691), in which, among other things, it has been held that definition of "grave misconduct" in Explanation (b) to Rule 8 is not exhaustive. However, it has been further observed by the Hon'ble Apex Court in the said order that it is not correct to say that failure to follow these rules cannot be a grave misconduct, The gravity of misconduct would depend upon the nature of conduct. It was further held by the Hon ble Court that it was wrong on the part of that _____ to have held the respondents in the said Civil Appeal as decided on August 14, 1998 of guilty of „ grave misconduct' because the charge was framed

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against him under Rules 3 (1)(ii) and (iii) of the CCS (Conduct) Rules, 1964. It has been further held in the said order as under:-

"it would not be correct to say that a government servant who is charged with not maintaining devotion to duty or with conduct unbecoming of a government servant cannot be held guilty of grave misconduct. The gravity of the misconduct would depend upon the nature of the conduct. The Tribunal has wrongly held that because the enquiry was initiated under Rules 3(1) (ii) and (iii) of the CCS Conduct Rules, the respondent cannot be held guilty of grave misconduct."

7. Despite the criminal proceeding under IPC Section 498(A) pending against the applicant Shri Yad Ram, this Tribunal vide its aforementioned order allowed the payment of all pensionary benefits including gratuity, commuted pension, leave encashment and full pension to the applicant.

8. The learned counsel for the applicant further cited the order dated 4.1.2006 in OA No. 1605/2005 in case of Mam Chand vs. U.O.I; wherein a detailed analysis of grave misconduct was also carried out. In the said order the principles enunciated by the Hon"ble Supreme Court in case of State of Orissa and Others

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vs. Kalicharan Mohpatra and another (1995) 6 SCC 105 have also been elaborated. In Mam Chand (supra) case, various criminal proceedings under sections of IPC 323, 341 and 323, 325 read with section 34 of IPC were pending against the applicant. Despite that, the Tribunal allowed payment of all retirement benefits including the regular pension, gratuity, commuted pension to the applicant with 6% interest for delayed payment of the said benefits.

9. The learned counsel for the applicant further cited the judgment of the Apex Court in S.K.Dua vs. State of Haryana & ors. 2008 (3) SCS 44 regarding payment of interest on delayed payment of retirement benefits. In this judgment it was held that

"In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well- founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the

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Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of bounty is, in our opinion, well-founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."

Based on the order of this Tribunal in OA No. 1605/2005 in Mam Chand vs. Union of India & Ors.(supra) the counsel for the applicant stated that though there was criminal proceedings pending against the applicant under Section 498(A) of the IPC, in similar cases the Tribunal has passed the orders to release all the retirement benefits to the applicant therein. The applicant had cited one judgment of the Delhi High Court and two other orders of this Tribunal, he did not press for those judgments /orders during the course of the arguments. He relied upon the Hon"ble Supreme Court judgment in S.K.Dua vs. State of Haryana & anrs.(supra) for claiming interest on the delayed payment of retirement benefits.

10. The learned counsel for the applicant further stated that rule 39 (3) of the CCS (Leave) Rules, 1972 clearly states that leave encashment cannot be

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withheld unless the competent authority satisfied that there is likelihood involved some money becoming due on account of the embezzlement of government fund or lose of public money and the same has been part of the criminal proceedings pending against the government employee. And in the instant case, the criminal proceedings are related to the matrimonial case and there is no scope of any recovery of amount on account of the embezzlement of government fund or lose of public money.

11. The learned counsel for the respondents relied upon the counter affidavit filed by the respondents. He stated that in all the cited cases criminal cases pending against the applicant at the time of his retirement which relates to matrimonial disputes which are grave in a nature. Though the charges were not framed against the applicant at the time of his retirement, and now in almost all cases the charges have been framed. There is no miscarriage of justice as principle of natural justice has been followed while dealing with the representation of the applicant pleading for releasing of his retirement benefits. The order dated 10.01.2019 denying the release of his retirement benefits to the applicant is based on

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pending criminal cases against the applicant. As per clause 9 (1) and (4) of the CCS (Pension) Rules, read with clause 69 of the CCS (Pension) Rules, 1972, only provisional pensionary benefits would be given to an employee against whom judicial proceedings are instituted at the time of his retirement. In the instant case, the applicant has already been given provisional pension vide order dated 14.09.2016 despite the fact that the criminal proceedings were pending against the applicant. He further cited rule 39 (3) of the CCS (Leave) Rules 1972, which allowed the competent authority to withheld the whole or part of the cash equivalent to earned leave in case of government servant against whom criminal proceedings are pending at the time of retirement. The rules position have been cited by the respondents in the order dated 10.1.2019 while denying the other retirement benefits to the applicant. Hence, the applicant has no legal case in the present OA.

12. I have gone through the records of the case and heard the arguments of both sides carefully. In the instance case, there are two main issues which need to be thrashed out:-

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(i) Whether there is a grave misconduct which can be imputed because of criminal proceedings against the applicant in respect of FIR No. 100/10 under section 490 (A) /406- 34/IPC Police Station Neb Sarai. The other FIRs have not attained at the stage of " judicial proceedings" because the judicial proceedings are not instituted as per clause 6 (b)(i) of the CCS ( Pension) Rules, 1972.

(ii) Whether the mere pendency of criminal proceedings in respect of the FIR no. 100/10 Police Station Neb Sarai would have debarred the applicant to get his leave encashment under rule 39 (3) of CCS ( Leave) Rules, 1972.

13. As regards to the pendency of the criminal proceedings and inference regarding grave misconduct, the sub rule 1 of Rule 9, sub rule 4 of Rule 9, Rule 69 and Rule 8 has to be read jointly alongwith section 3 of CCS (Conduct) Rules, 1972, which defines excepted conduct of a Government Servant all the time. Section 3 of the CCS ( Conduct ) Rules, 1972 states that it is obligatory on the part of the government servant to maintain absolute integrity, maintain devotion to duty and do nothing that is unbecoming of Government

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Servant all the time while in Government Service. The sub rule(5) (b) of Rule 8 of CCS ( Pension ) Rules, 1972 explains as to what constitutes grave misconduct it states :

"(b). the expression 'grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923), (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State."

14. The issue regarding grave misconduct has been deliberated in Mam Chand vs. UOI (Supra) in OA No. 1605/2005 by this Tribunal. The Tribunal particularly held that;

"The misconduct for which criminal proceedings were initiated against him had close nexus with his conduct as a Government servant. The Hon'ble Supreme Court held that "where, a judicial proceeding is pending against a pensioner for 'grave misconduct the Government is entitled to withheld the gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceeding. In other words where the judicial proceedings were not for 'grave misconduct' neither gratuity could be withheld nor could provisional pension be sanctioned. As a result before decision to withhold gratuity amount or sanctioning the provisional pension authorities per force are duty bound to apply their mind to consider whether the proceeding departmental judicial proceedings may

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end in the pensioner being held guilty of grave misconduct and negligence during the period of his government service to enable the President of India' to exercise one or the other power as provided in Rule 9 of Pension Rules. It will be impossible for the authorities to routinely issue provisional pension and withhold gratuity of a pensioner on a mere pendency of a judicial or departmental proceeding on the date of retirement."

15. Taking the analogy of Yad Ram vs. Dy. Commissioner of Police (supra) case in OA No. 870/2004, the Tribunal in OA No. 1605/2005 concluded that though the criminal proceedings under various sections of IPC like 323/506/34; 341/323/34 of IPC were pending against the applicant therein, the Tribunal ordered to pay the payment of all retirement benefits and direct the respondents to issue the regular pension to the applicant. Particularly in the case of Yad Ram Vs. DCP (supra) exactly similar case was pending under section 498 (A)/ 406 of IPC and the Tribunal granted all the pensionary benefits including the regular pension to the applicant.

16. In the instant case, the criminal proceedings against the applicant were pending at the time of his retirement relates to FIR No.100/10 under section 498 (A)/406/ 34. This Tribunal has already taken the view that during the pendency of criminal proceedings

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under the above sections did not constitute grave misconduct by the Government Servant. I have no reason to differ with rationale drawn in the said order in the case of Yad Ram vs. DCP (supra) case. In view of this, the applicant is entitled to get all retirement benefits including the regular pension.

17. As regards to the payment of leave encashment dues of the applicant, I do agree with the contention of the respondents that Rule 39 (3) of the CCS ( Leave ) Rules, 1972 does not prohibit the payment of leave encashment in case of mere pendency of judicial proceedings unless the judicial proceedings involve recovery of public money due to embezzlement or recovery of loss due to the negligence of a government servant. Mere pendency of criminal proceedings without sufficient satisfaction of the competent authority that there is likelihood of recovery of money on account of embezzlement of government fund or loss of public exchequer, there is no bar to payment of leave encashment. In view of this, I am of the considered view that the applicant is entitled for payment of leave encashment at the time of his retirement. As the retirement benefits will be at considerable delay and such delay is not due to the

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actions by the applicant, he is entitled for getting the interest on such delayed payment. There are several Hon"ble Supreme Court judgments which has established the law that for such delayed payment the employer shall pay the interest to the government servant at the appropriate rates.

18. In view of the above, the following orders are issued:-

(i) The respondents are directed to release all the pensionary benefits, namely, gratuity, commuted pension, leave encashment and full pension to the applicant forthwith.

(ii) The respondent are directed to pay interest at applicable GPF rates to the applicant for the delayed payment of gratuity and leave encashment for the period from the date of his retirement till to the payment of such dues.

19. In view of this, the OA is allowed in the above terms. There shall be no order as to costs. All pending MAs are also disposed of accordingly.

(Dr. Chhabilendra Roul)

Member (A) /mk /