Orissa & Ors Vs. Kalicharan Mohapatra
& Anr  INSC 517 (20 September 1995)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Mukherjee M.K. (J) B.P. Jeevan Reddy, J.
1996 AIR 684 1995 SCC (6) 105 JT 1995 (7) 167 1995 SCALE (5)506
appeal is preferred against the judgment of the Central Administrative Tribunal
(Cuttack Bench) allowing the Original Application filed by the respondent and
directing the appellants (respondents in the Original Application) to release
final pension and gratuity to the respondent within ninety days of the
respondent was a member of the Indian Police Service. He retired on December 31, 1990. About six months prior to his
retirement, a raid was conducted on his residential premises. On the basis of
the material recovered, a prosecution has been launched against him in the Special Court, Cuttack under Section 13(2) read with Section 13(1) of the
Prevention of Corruption Act for being in possession of assets disproportionate
to his known sources of income. [According to Section 13(1) of the said Act,
misconduct includes being in possession of assets disproportionate to his known
sources of income.] The case is still pending. In view of the pendency of the
said criminal case, the appellants withheld the gratuity amount and did not
also sanction the pension finally. A provisional pension equal to ninety
percent of his entitlement was, however, sanctioned. Aggrieved by the refusal
to release the gratuity amount and the refusal to sanction his pension finally,
the respondent approached the Tribunal.
appellants relied upon Rule 6 of the All India Services (Death-cum-Retirement
Benefits) Rules, 1958 in support of their action. The appellants' case was that
in view of the pendency of the said criminal case, they were justified in
withholding the gratuity amount and also in not sanctioning the pension
finally. The Tribunal has held that the said rule does not avail the appellants
inasmuch as the charge against the respondent is not one of causing pecuniary
loss to the Central or State Government by misconduct or negligence within the
meaning of Rule 6(1). We are of the opinion that the reading of the rule by the
Tribunal is unsustainable and incorrect. The rule reads thus:
Recovery from pension:- 6(1) The Central Government reserves to itself the
right of withholding or withdrawing a pension or any part of it, whether
permanently or for a specified period, and the right of ordering the recovery
from pension of the whole or part of any pecuniary loss caused to the Central
or a State Government, if the pensioner is found in a departmental or judicial
proceedings to have been guilty of grave misconduct or to have caused pecuniary
loss to the Central or a State Government by misconduct or negligence, during
his service, including service rendered or re-employment after retirement.
that no such order shall be passed without consulting the Union Public Service
Commission:-- Provided further that-- (a) such departmental proceeding, if
instituted while the pensioner was in service, whether before his retirement or
during his re-employment, shall, after the final retirement of the pensioner,
be deemed to be a proceeding under this sub-rule and shall be continued and concluded
by the authority by which it was commenced in the same manner as if the
pensioner had continued in service;
[Omitted as unnecessary] (c) [Omitted as unnecessary] Explanation.- For the
purpose of this rule:- (a) a departmental proceeding shall be deemed to be
instituted which the charges framed against the pensioner are issued to his or,
if he has been placed under suspension from an earlier date, on such date and
(b) a judicial proceeding shall be deemed to be instituted-- (i) in the case of
criminal proceedings, on the date on which a complaint is made or a
charge-sheet is submitted, to the criminal court; and (ii) in the case of civil
proceedings, on the date on which the plaint is presented or, as the case may
be, an application is made, to a civil court.
Where any departmental or judicial proceeding is instituted under sub-rule (1),
or where a departmental proceeding is continued under clause (a) of the proviso
thereto against an officer who has retired on attaining the age of compulsory
retirement or otherwise, he shall be sanctioned by the Government which
instituted such proceedings, during the period commencing from the date of his
retirement to the date on which, upon conclusion of such proceeding final
orders are passed, a provisional pension not exceeding the maximum pension
which would have been admissible on the basis of his qualifying service upto
the date of retirement, or if he was under suspension on the date of
retirement, upto the date immediately preceding the date on which he was placed
under suspension; but no gratuity or death- cum-retirement gratuity shall be
paid to him until the conclusion of such proceedings and the issue of final
that where disciplinary proceeding has been instituted against a member of the
Service before his retirement service under rule 10 of the All India Service
(Discipline and Appeal) Rules, 1969, for imposing any of the penalties
specified in clause (i), (ii) and (iv) of sub-rule 1 of rule 6 of the said
rules and continuing such proceeding under sub-rule (1) of this rule after his
retirement from service, the payment of gratuity or Death-cum- Retirement
gratuity shall not be withheld.
[Omitted as unnecessary]."
reading of sub-rule (1) of Rule 6 discloses the following features:
the pensioner is found in a departmental or judicial proceeding to have been
guilty of grave misconduct or
where a pensioner is found in a departmental or judicial proceeding to have
caused pecuniary loss to the Central or State Government by his misconduct or
negligence during his service (including the service rendered on re-employment
Central Government is entitled to withhold or withdraw pension or any part of
it whether permanently or for a specified period.
Central Government is also entitled to order recovery from pension of the whole
or part of any pecuniary loss caused to the Central or State Government.
Sub-rule (2) says that
a departmental or judicial proceeding is instituted under sub-section (1) or
a departmental proceeding is continued under clause (a) of the proviso to
such employee shall be sanctioned by the government which instituted such
proceedings a provisional pension not exceeding the maximum pension admissible
to him during the period of pendency of such proceeding,
no gratuity or death-cum-retirement gratuity shall be paid to him until the
conclusion of such proceedings and the issuance of final orders thereon.
thus clear from an analysis of sub-rules (1) and (2) that where a judicial
proceeding is pending against a pensioner for grave misconduct, the government
is entitled to withhold gratuity amount and/or death-cum-gratuity amount and is
also entitled to sanction provisional pension for the period of pendency of the
said proceedings. It is not necessary that a judicial proceeding should relate
to the charge of causing pecuniary loss to the Central or State Government by
misconduct or negligence during his service.
(1) of Rule 6 specifies two grounds upon which action thereunder can be taken.
One is where the pensioner is found guilty of grave misconduct and the other is
where he is found to have caused pecuniary loss to the Central and State
Government by misconduct and negligence during his service. Sub-rule (2)
provides for orders to be made during the pendency of such proceedings. It may
also be mentioned that neither the All India Service (Death-cum-Retirement)
Rules nor the Pensions Act, General Clauses Act or the Leave Rules [referred to
in Rule 2(2)] define the expression "misconduct". It would,
therefore, be reasonable and permissible to understand the said expression in
Rule 6 aforesaid in the manner defined in the Prevention of Corruption Act.
was, therefore, in error in holding that unless the charge expressly charges
the pensioner with causing pecuniary loss to Central or State Government by his
negligence or misconduct during his service, the action under sub-rule (2) of
Rule 6 cannot be taken.
appeal is accordingly allowed and the judgment of the Tribunal is set aside. No
order as to costs.