Wp/14792/2022 Of B. B. Rajendra Prasad Commissioner Of Income Tax v. Union Of India Thr Secretary Ministry Of Finance Dept. And Ors

SANJAYKASHINATHNANOSKARDigitally signed bySANJAY KASHINATHNANOSKARDate: 2023.10.0717:25:24 +0530 skn 1 WP-14792.2022.edited.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE SIDE WRIT PETITION NO. 14792 OF 2022 B.B. Rajendra Prasad,Commissioner of Income Tax (Retd.)Aged- 60 Years,Add: B-902, 9[th] Floor,Azmeera Zion, Bhakti Park,Carnival I-Max, Mumbai- 400 037.…V/s.1. Union of India through Secretary,Ministry of Finance, Department of Revenue, North Block, Government ofIndia, New Delhi- 110 001. Petitioner. 2. Chairman, Central Board of Direct Taxes,Ministry of Finance, Department of Revenue, North Block, New Delhi- 110 001. 3. Principal Chief Commissioner of Income Tax (CCA), Gujrat, Aayakar Bhawan,P.B.No.211, Ashram Road,Ahmedabad- 380 009. 4. Chief Commissioner of Income Tax, Rajkot,Aayakar Bhavan, Race Course Road,Rajkot- 360 001.Aayakar Bhavan, Race Course Road,Rajkot- 360 001. 5. Commissioner of Income Tax (DR)Income Tax Appellate Tribunal,5[th] Floor, Amruta Estate,…M.G.Road, Rajkot- 360 001.Respondents. skn 2 WP-14792.2022.edited.doc Mr.Rajeev N. Kumar with Mr.Chagan Thakare and Mr.Amey Kanse for the Petitioner. Mr.R.R.Shetty with Mr.D.A.Dubey for the Respondent- UOI. CORAM :NITIN JAMDAR, ANDMANJUSHA DESHPANDE, JJ. DATE:26 September 2023. :JUDGMENT(Per Nitin Jamdar, J.) Rule. Rule made returnable forthwith. Respondentswaive service. Taken up for disposal. 2.The Petitioner has approached this Court by way of thiswrit petition challenging the judgment and order passed by theCentral Administrative Tribunal dated 5 August 2022 dismissing theOriginal Application No.81/2021 filed by the Petitioner. Thepetition concerns the retiral benefits of the Petitioner. 3.The Petitioner retired as a Commissioner of Income Tax.Respondent No.1 is the Union of India through the Ministry ofFinance; Respondent No.2 is the Central Board of Direct Taxes;Respondent Nos.3, 4 and 5 are Principal Chief Commissioner ofIncome Tax; Chief Commissioner of Income Tax; and Commissionerof Income Tax (DR), Income Tax Appellate Tribunal. skn 3 WP-14792.2022.edited.doc 4.The Petitioner belongs to the 1992 batch of IndianRevenue Service. He joined the service on 5 January 1993 asAssistant Commissioner of Income Tax. The Petitioner wasthereafter promoted to the Selection Grade post of JointCommissioner of Income Tax in October 2003. Thereafter, he waspromoted as Additional Commissioner of Income Tax to the cadre ofCommissioner of Income Tax in 2015. The Petitioner was posed invarious regions, such as Karnataka and Tamil Nadu, during hisservice. He was also posted as Commissioner of Income Tax(Appeals) in Mumbai. After that, he was posted as Commissioner ofIncome Tax (DR) Income Tax Appellate Tribunal, Mumbai. 5.A First Information Report (FIR) was registered by theCentral Bureau of Investigation (CBI), Anti Corruption Branch,Visakhapatnam vide RC 08(A)/2017 on 1 May 2017. It was allegedin the FIR that the Petitioner demanded illegal gratificationpunishable under sections 7 and 12 of the Prevention of CorruptionAct, 1988 and section 120B of the Indian Penal Code. ThePetitioner was arrested, and later released on bail. On 31 July 2017,another FIR bearing No.RC 12(A)/2017 under section 13(2), readwith section 13(1)(e) of the Prevention of Corruption Act, was filedon the allegation that the Petitioner has assets disproportionate to hisknown source of income. The Petitioner was placed undersuspension. The Petitioner filed an Original Application in theTribunal challenging the suspension. The Tribunal, by order dated skn 4 WP-14792.2022.edited.doc skn 4 WP-14792.2022.edited.doc 29 May 2018, quashed the order of suspension. The Petitioner wasreinstated, and he joined duty on 18 July 2018. In 2019, thePetitioner was posted as Commissioner of Income Tax (DR) IncomeTax Appellate Tribunal, Rajkot, where he was compulsorily retiredfrom service with effect from 11 June 2019. The action ofcompulsory retirement was taken under Rule 56(j) of theFundamental Rules. 6.The Petitioner submitted his claim papers for regularpension to the Respondents; however, he did not receive anyresponse for almost a year. The Petitioner received acommunication by email, including the order dated 15 June 2020.This order was effected from 12 June 2019. The said order reads asfollows: “In exercise of power conferred under Rule 69(1)(a) ofthe Pension Rules of CCS (Pension) Rules, 1972 and inpursuance of ZAO, CBDT, Rajkot’s letter No.Z0/RJT/BRR/2020/133 dated Date: 15/6/2020, provisionalpension @ Rs.91,350/- (Rupees ninety one thousand threehundred fifty only) and D.A. as admissible w.e.f. 12/06/2019 ishereby sanctioned to Shri B.B. Rajendra Prasad, Commissionerof income-tax (DR), ITAT, Rajkot compulsorily retired w.e.f.11/06/2019 (A.N.) This order shall be effective from 12/06/2019 and validduring the period commencing from the date of retirement upto and including the date of which after the conclusion ofdepartmental or judicial proceeding, final orders are passed bythe competent authority.” skn 5 WP-14792.2022.edited.doc This order was issued as per Rule 69(1)(a) of Central Civil Services(pension) Rules 1972. Being aggrieved by this communication, thePetitioner made a representation on 15 June 2020 and 30 June 2020against the order granting a provisional pension. Since they did notfructify in a favourable order, the Petitioner filed OriginalApplication No.81/2021 in the Central Administrative Tribunal. 7.In the Original Application, the Petitioner contended thatas per rules, compulsory retirement under section 56(j) of theFundamental Rules makes an officer eligible for all and fullretirement benefits, particularly when there is no proceedinginstituted against him on the date of retirement or on the date of theimpugned order of provisional pension and therefore, theRespondents have no justification not to authorize the regularretirement benefits of the Petitioner. According to the Petitioner,throughout his service career, the Petitioner had an excellentperformance, and he never received any adverse remarks. ThePetitioner contended there were no disciplinary proceedings/ judicialproceedings instituted against the Petitioner on the date thePetitioner was compulsorily retired under Rule 56(j) of theFundamental Rules and even till the date of the impugned order ofprovisional pension, i.e., 15 June 2020. In the Original Application,the Petitioner placed on record information regarding two FirstInformation Reports filed against the Petitioner on 1 May 2017 and skn 6 WP-14792.2022.edited.doc skn 6 WP-14792.2022.edited.doc 31 July 2017. Petitioner contended that both the FIRs were filed inMay 2017, and nothing was known about the action thereupon.The Petitioner asserted that no departmental enquiry was institutedagainst him on the date of his retirement and even till the date ofgrant of provisional pension on 15 June 2020. The Petitioneraccordingly prayed that the Petitioner is entitled to full pensionbenefits, that is, regular pension and all retiral benefits. ThePetitioner contended that invocation of section 69(1)(a) under theCCS (Pension) Rules, 1972 was incorrect. Accordingly, thePetitioner prayed that the order dated 15 June 2020 be revised toinclude all retiral benefits such as regular pension, commutation ofpension, leave encashment and gratuity. 8.The Respondents filed an affidavit-in-reply and opposedthe Original Application. The Respondents contended thatpensionary benefits cannot be granted to the Petitioner asdisciplinary and criminal proceedings were pending against him. Itwas contended that although the Petitioner retired on 10 June 2019,the departmental charge memorandum was issued against thePetitioner on 26 April 2021. It was contended that the Petitionerentered into a criminal conspiracy and demanded illegal gratificationin lieu of passing a favourable appellate order in favour of one Trustfor the assessment year 2013-14. He decided an appeal in favour ofthe Trust on the basis of inadmissible additional evidence, nullifyingthe tax demand. The CBI caught the Petitioner red-handed on 2 skn 7 WP-14792.2022.edited.doc May 2017 while receiving/accepting illegal gratification at hisresidence. The CBI has registered a case against the Petitioner, basedon search action conducted on 1 May 2017, for allegedly acceptingillegal gratification for passing favourable order in favour of a Trust.It was contended that subsequently, the CBI registered aDisproportionate Assets case on 31 July 2017 under Section 13(2)read with Section 13(1)(e) of the Prevention of Corruption Actagainst the Petitioner. It was submitted that the disciplinaryproceedings are pending for major penalty proceedings vide chargememo dated 23 June 2021. The Respondents submitted that thedisciplinary and criminal proceedings are still pending against thePetitioner and, thus, till the same do not culminate in the acquittal ordischarge of the claimed in the Original Application. The Petitioneris only entitled to the grant of provisional pension, which is beingpaid to him. The Respondents thus submitted that once an orderunder Rule 56(j) of the Fundamental Rules is passed against anemployee, he is entitled to his service and retiral benefits, but in caseany disciplinary proceedings or criminal case are pending, theemployee concerned is entitled to provisional pension only andfurther entitlement is decided on the closure of the proceedings andoutcome thereof. In the facts of the present case, the disciplinary aswell as criminal proceedings are pending against the Petitioner, andhe is thus entitled to provisional pension only, which is being paid tohim. Hence, the Respondents submitted that the OriginalApplication is liable to be dismissed. skn 8 WP-14792.2022.edited.doc skn 8 WP-14792.2022.edited.doc 9.The Tribunal referred to Rules 9(4) and (6) and Rule69(1)(b) of the CCS (Pension) Rules, 1972; Rule 4 of the CentralCivil Services (Commutation of Pension) Rules, 1981; and Rule39(3) of the Central Civil Services (Leave), 1972. The Tribunalheld that a combined reading of these Rules makes it clear that thedate of institution of criminal proceeding against the retiringgovernment servant is the determining factor of considering hiseligibility for pension, gratuity, commuted value of pension and leaveencashment on or soon after the date of his retirement fromgovernment service. The Tribunal noted Rule 9(6)(b)(i) of CCS(Pension) Rules and observed that the crucial position would be thedate on which the chargesheet is filed by CBI against the Petitioner,and the Magistrate took cognisance thereof. Having framed thisissue, the Tribunal observed that both the Petitioner and theRespondents have not placed in their pleadings the date the CBIfiled the chargesheet against the Petitioner and when the Magistratetook cognisance of it. The Tribunal also held that the parties hadnot filed copies of FIRs or chargesheet or the nature of the offence.After recording this, the Tribunal discussed the decisions of theHon'ble Supreme Court as to when the departmental/ criminalprosecution can be considered as initiated against an employee.After that, the Tribunal concluded that in the present case, when thePetitioner was retired under Rule 56(j) of the Fundamental Rules,the prosecution was pending against the Petitioner as the FIRs were skn 9 WP-14792.2022.edited.doc lodged. Then the Tribunal went to hold that the charges against thePetitioner were grave and departmental proceedings initiated againstthe Petitioner were pending, the terminal benefits cannot be releasedto the Petitioner and, accordingly, the Original Application wasdismissed. Being aggrieved by the said order, the Petitioner is beforeus. 10.We have heard Mr.Rajeev Kumar for the Petitioner andMr. R.R. Shetty for the Respondents. 11.The Petitioner has reiterated his stand that when theorder was passed against the Petitioner compulsorily retiring himunder Rule 56(j) of the Fundamental Rules, there was no criminal ordepartmental proceeding pending as contemplated in Rules 9(4) and9(6) of the CCS (Pension) Rules and therefore Rule 69 of the CCS(Pension) Rules, Rule 4 of the CCS (Commutation of Pension) Rulesand Rule 39(3) of the CCS (Leave) Rules could not have beeninvoked. The Respondents, as stated above, asserted that judicialand departmental proceedings were pending on the date when theorder under Rule 56(j) of the Fundamental Rules was passed againstthe Petitioner. This is, therefore, a narrow controversy before us. 12.Reply affidavit is filed by the Respondents in thispetition. It is stated therein that advance pay of 3 months has beendisbursed to the Petitioner on 11 June 2019. A salary of 11 days of skn 10 WP-14792.2022.edited.doc 12.Reply affidavit is filed by the Respondents in thispetition. It is stated therein that advance pay of 3 months has beendisbursed to the Petitioner on 11 June 2019. A salary of 11 days of skn 10 WP-14792.2022.edited.doc June 2019 of Rs.85,747/- has been approved and paid by the officeat Rajkot. Similarly, the General Provident Fund has been paid bythe office at Rajkot and also CGEGIS and leave encashment. Theprovisional pension of Rs.8,53,450/- and Rs.1,06,880/- has beenpaid. A reference is made to a communication dated 13 July 2020that a regular pension has not been approved as per Rule 69(1)(a) ofthe CCS (Pension) Rules for want of vigilance clearance. Thedeponent of this affidavit, who is Deputy Commissioner of IncomeTax (HQ), Service Litigation, has stated that his office had sentletters and reminders to the Director General, New Delhi(Vigilance); however, vigilance clearance has been withheld and,therefore, payment of gratuity and pension has not been made. Inthe reply, reference is made to the FIRs filed against the Petitioner on1 May 2017 and 31 July 2017. It is then stated that the statement ofarticles of charges framed against the Petitioner is as per the annexureto the memorandum dated 23 July 2021. It is stated that, therefore,since judicial and criminal proceedings were pending on the date ofcompulsory retirement of the Petitioner, the Petitioner is onlyentitled to the provisional pension. In the affidavit, reliance isplaced on the decision of the Hon’ble Supreme Court in the case ofUnion of India v. K.V. Janki Raman[1] in respect of starting of theprosecution and in the case of CBI v. Shashi Balasubramanian[2].Therefore, in the case of the Respondents, which is also a finding ofthe Tribunal that on the date of the compulsory retirement of the 1 (1991) 4 SCC 109 2 (2006) 13 SCC 252 skn 11 WP-14792.2022.edited.doc Petitioner, there were disciplinary and criminal proceedings pendingagainst the Petitioner and, therefore, regular pension and otherbenefits cannot be granted. 13.We have considered the submissions. It is not disputedbefore us that a Government servant who is compulsorily retired asper Rule 56(i) of the Fundamental Rules would otherwise beentitled to full pensionary benefits. However, it is argued by theRespondents that in the case of the Petitioner, Rule 69 of the CCS(Pension) Rules, Rule 4 of CCS (Commutation of Pension) Rulesand Rule 39(3) of the CCS (Leave) Rules are attracted in thePetitioner case. 14.The Tribunal, in the impugned order, has referred tovarious decisions of the Hon'ble Supreme Court and hassubstantially observed in favour of the Petitioner that in paragraph13 of the order from where we quote as under: “13.…..Therefore, in the present case when the applicantwas retired under FR 56(j), prosecution was pending as FIRshad been lodged. There is another reason for me to deny therelief to the applicant, i.e., as on date the departmentalproceedings are going on under Rule 9 of the CCS (Pension)Rules, which is admitted by both the parties, as such thequestion of granting full pension today, does not survive unlessthe said departmental proceedings reach a culmination. It is notin dispute that retirement under FR 56(j) makes an officereligible for all and full retirement benefits. These retirementbenefits would include regular pension, commutation ofpension, leave encashment for the earned leave balance on thedate of retirement and gratuity. The retiral benefits are matter skn 12 WP-14792.2022.edited.doc skn 12 WP-14792.2022.edited.doc of right to life under Article 21 of the Constitution. In a catenaof judgments by the Hon'ble Supreme Court and the Hon'bleHigh Courts enunciated that pension and other terminalbenefits are matter of right of the employee. Gratuity and leaveencashment are a part of the salary, which | is regulated at thetime of retirement. It is neither a charity nor a free gift by the--respondentemployer herein. That nongrant/ delaying grant ofretirement amounts to harassing the officers irrespective ofwhether an employee retired under FR 56(j) or by way ofsuperannuation and subjecting them to unjust and unfairtreatment, which could be treated as arbitrariness on behalf ofthe respondents and, therefore, Articles 21 and 14 of theConstitution of India are invocable against such arbitrariness,-more so when seen in juxtaposition to the longstanding careerand services rendered to Government of India. In D.S. Nakaraand Ors. Vs Union of India (1983) 1 SCC 305, the Hon'bleSupreme Court laid down a law that "the pensionary benefit isa matter of right of the employee and not a bounty by theGovernment". Under the circumstances, granting provisionalpension and withholding other terminal benefits earned by theemployee during the course of employment, ordinarily wouldbe violation of his right to equality and the right to lifeguaranteed by the Constitution, in addition to being violativeof service jurisprudence. …..” (Emphasis supplied) After this observation, the Tribunal non-suited the Petitioner on theground that an important point to consider is what the chargesagainst the Petitioner and that since the allegations are grave forwhich departmental proceedings are pending, the retiral dues,including regular pension, commutation of pension cannot bereleased to the Petitioner. After observing that pension and terminalbenefits are not bounties or charity or free gifts by the employer, theTribunal makes no reference to any statutory Rule as to why the skn 13 WP-14792.2022.edited.doc Petitioner has been denied the retiral benefits. The analysis of thestatutory provisions and facts on record would show that theapproach of the Tribunal is clearly erroneous 15.The Petitioner was compulsorily retired from service,invoking Rule 56(j) of the Fundamental Rules. Rule 56(j) readsthus: “F.R. 56: (j)Notwithstanding anything contained in this rule, theAppropriate Authority shall, if it is of the opinion that it is inthe public interest to do so, have the absolute right to retire anyGovernment servant by giving him notice of not less than threemonths in writing or three months' pay and allowances in lieuof such notice: (i) If he is in Group 'A' or Group 'B' service or post in asubstantive, quasi-permanent or temporary capacity andhad entered Government service before attaining the ageof 35 years, after he has attained the age of 50 years;substantive, quasi-permanent or temporary capacity andhad entered Government service before attaining the ageof 35 years, after he has attained the age of 50 years; (ii) in any other case after he has attained the age of fifty-fiveyears;years; …..…..…..…..…..” Therefore, under Rule 56(j), the appropriate authority, if it is in thepublic interest to do so, has the absolute right to retire anyGovernment servant by following formalities stipulated in the saidrule. The order impugned before the Tribunal was passed underRule 69 of CCS (Pension) Rules under which. Rule 69 reads thus: skn 14 WP-14792.2022.edited.doc “69.Provisional pension where departmental or judicialproceedings may be pending. (ii) in any other case after he has attained the age of fifty-fiveyears;years; …..…..…..…..…..” Therefore, under Rule 56(j), the appropriate authority, if it is in thepublic interest to do so, has the absolute right to retire anyGovernment servant by following formalities stipulated in the saidrule. The order impugned before the Tribunal was passed underRule 69 of CCS (Pension) Rules under which. Rule 69 reads thus: skn 14 WP-14792.2022.edited.doc “69.Provisional pension where departmental or judicialproceedings may be pending. (1)(a)In respect of a Government servant referredto in sub-rule (4) of Rule 9, the Accounts Officer shallauthorise the provisional pension equal to the maximumpension which would have been admissible on the basis ofqualifying service up to the date of retirement of theGovernment servant, or if he was under suspension on the dateof retirement up to the date immediately preceding the date onwhich he was placed under suspension. (b)The provisional pension shall be authorised by theAccounts Officer during the period commencing from the dateof retirement up to and including the date on which, after theconclusion of departmental or judicial proceedings, final ordersare passed by the competent authority. (c)No gratuity shall be paid to the Governmentservant until the conclusion of the departmental or judicialproceedings and issue of final orders thereon: Provided that where departmental proceedings havebeen instituted under Rule 16 of the Central Civil Services(Classification, Control and Appeal) Rules, 1965, for imposingany of the penalties specified in Clauses (i), (ii) and (iv) of Rule11 of the said rules, the payment of gratuity shall be authorisedto be paid to the Government servant. (2)Payment of provisional pension made undersub-rule (1) shall be adjusted against final retirementbenefits sanctioned to such Government servant uponconclusion of such proceedings but no recovery shall bemade where the pension finally sanctioned is less than theprovisional pension or the pension is reduced or withheldeither permanently or for a specified period.” Under this Rule, the regular pension cannot be authorised wheredepartmental or judicial proceedings are pending, and provisionalpension has to be authorised. Regarding the stage at which the skn 15 WP-14792.2022.edited.doc criminal and departmental proceedings can be considered pending,reference will be made to Rule 9 of the CCS (Pension) Rules. Underthis Rule, the pension can be withheld and withdrawn. The relevantpart of Rule 9 of CCS (Pension) Rules reads thus: “9. Right of President to withhold or withdraw pension. (1)The President reserves to himself the right ofwithholding a pension or gratuity, or both, either in full or inpart, or withdrawing a pension in full or in part, whetherpermanently or for a specified period, and of ordering recoveryfrom a pension or gratuity of the whole or part of anypecuniary loss caused to the Government, if, in anydepartmental or judicial proceedings, the pensioner is foundguilty of grave misconduct or negligence during the period ofservice, including service rendered upon re-employment afterretirement : …..…..…..…..…..….. (4)In the case of Government servant who has retired onattaining the age of superannuation or otherwise and againstwhom any departmental or judicial proceedings are institutedor where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall besanctioned. …..…..…..…..…..….. -(6)For the purpose of this rule, …..…..…..…..…..….. (4)In the case of Government servant who has retired onattaining the age of superannuation or otherwise and againstwhom any departmental or judicial proceedings are institutedor where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall besanctioned. …..…..…..…..…..….. -(6)For the purpose of this rule, (a)departmental proceedings shall be deemed to beinstituted on the date on which the statement of chargesis issued to the Government servant or pensioner, or ifthe Government servant has been placed undersuspension from an earlier date, on such date ; andinstituted on the date on which the statement of chargesis issued to the Government servant or pensioner, or ifthe Government servant has been placed undersuspension from an earlier date, on such date ; and (b)judicial proceedings shall be deemed to be instituted(i)in the case of criminal proceedings, on the date onwhich the complaint or report of a police officer, of(i)in the case of criminal proceedings, on the date onwhich the complaint or report of a police officer, of skn 16 WP-14792.2022.edited.doc which the Magistrate takes cognisance, is made, and Therefore, under sub-rule (4) of Rule 9 in case of a Governmentservant who has retired on attaining age of superannuation orotherwise and against whom any departmental or judicialproceedings are instituted or where departmental proceedings arecontinued under sub-rule (2), provisional pension as provided inRule 69 shall be sanctioned. Rule 9(6) states that for the purpose ofthis Rule in case of criminal proceeding, it shall be deemed to beinstituted on the date on which the complaint or report of the PoliceOfficer of which the Magistrate takes cognisance. As regardscommutation of pension, the same is governed by Rule 4 of CCS(Commutation) Rules and Rule 39(3) covers the grant of leaveencashment of cases where disciplinary or criminal cases are pendingagainst the Government servant who is retired from service. 16.Rule 69 and Rules 9(4) and 9(6) of the CCS (Pension)Rules will have to be read together. Rule 4 also makes a reference tothe pendency of departmental and judicial proceedings as referred toin Rule 9 of the CCS (Pension) Rules. 17.Rule 9 (6), which is already reproduced above, makes itvery clear as to departmental proceedings which are deemed to beinstituted on the date on which the statement of charge is issued to skn 17 WP-14792.2022.edited.doc the Government servant. Judicial proceedings are deemed to beinstituted in case of criminal proceedings on the date on which thecomplaint or report of the Police Officer of which the Magistratetakes cognisance is made. Two dates, therefore, would be relevant:first, the date on which the statement of charge is issued and second,the date on which the Magistrate has taken cognisance. 18.The Tribunal has referred to the fact that neither thePetitioner nor the Respondents have placed before it the date onwhich the Magistrate took cognisance. When the Petitioner hasmade the specific assertion that, as per Rule 9(6), no departmentalenquiry or criminal proceedings were pending against the Petitioneron the date of his compulsory retirement, it was for the Respondentsto counter the same by showing otherwise. It is now duringarguments, after we adjourned the petition for the learned counselfor Respondents to take instructions, that the learned counsel forRespondents Mr Shetty has informed the Court of the dates onwhich cognisance is taken. We proceed based on the statement madeby Mr Shetty. 18.The Tribunal has referred to the fact that neither thePetitioner nor the Respondents have placed before it the date onwhich the Magistrate took cognisance. When the Petitioner hasmade the specific assertion that, as per Rule 9(6), no departmentalenquiry or criminal proceedings were pending against the Petitioneron the date of his compulsory retirement, it was for the Respondentsto counter the same by showing otherwise. It is now duringarguments, after we adjourned the petition for the learned counselfor Respondents to take instructions, that the learned counsel forRespondents Mr Shetty has informed the Court of the dates onwhich cognisance is taken. We proceed based on the statement madeby Mr Shetty. 19.The admitted facts are that the FIR was lodged againstthe Petitioner in the first case on 1 May 2017 and in the second caseon 31 July 2017. The Petitioner was compulsorily retired by orderdated 10 June 2019 under clause (i) of Rule 56 of the FundamentalRules. It is stated by the learned counsel for the Respondents that theorder of compulsory retirement is dated 10 June 2019 whereas order skn 18 WP-14792.2022.edited.doc of provisional pension is dated 15 June 2020. The date ofcognisance in first case registered on 1 May 2017 is 20 January 2022whereas the date of cognisance in the second case registered on 31July 2017 is 1 July 2021. The major penalty chargesheet for thedepartmental inquiry was issued to the Petitioner on 26 April 2021.It has come on record that departmental proceedings were initiatedagainst the Petitioner as on 23 June 2021. 20.Therefore, as per Rule 9(6)(b)(i) of the CCS (Pension)Rules, the proceedings would have been deemed to be against thePetitioner when the Petitioner was compulsorily retired on 10 June2019 had the Magistrate taken cognisance of the chargesheet filed inrespect of these FIRs. Under Rule 9(6)(a), the departmentalproceedings should have been instituted by issuing a statement ofcharges as of 10 June 2019. The conclusion, therefore, is that on thedate when the Petitioner was compulsorily retired, i.e. 10 June 2019,under clause (i) of Rule 56 of the Fundamental Rules, neitherdepartmental proceedings nor criminal proceedings were pendingagainst the Petitioner. That being the position, the conditionsrequired to invoke Rule 69(1)(a) of the CCS (Pension) Rules eitheron the date of the order dated 15 June 2019 or on the date ofcompulsory retirement, i.e. 10 June 2019 were not present and,therefore, the order of provisional pension could not have beenpassed withholding the regular pension. skn 19 WP-14792.2022.edited.doc 21.On the date when the order was passed against thePetitioner under Rule 56(j) of the Fundamental Rules and thePetitioner was retired from service, there were no departmental orcriminal proceedings pending against him. No rule depriving thePetitioner in these circumstances has been referred by the Tribunalnor shown to us. Once the Tribunal concluded that departmental orcriminal proceedings were not demonstrated to be pending againstthe Petitioner on the date of his compulsory retirement, the Tribunalshould have set aside the Respondent's action and allowed theOriginal Application filed by the Petitioner. Regarding the course ofaction adopted by the Tribunal, we find no reference in the judicialpronouncements or the statutory rules, nor is it demonstrated beforeus by the Respondents. 22.In the case of V.P.Singh v. Government NCT, Delhi[3],an identical issue arose for consideration of the Division Bench ofDelhi High Court. The Petitioner therein had retired as Principal,and his retirement being such, commutation of pension gratuity wasnot released to him at the time of his retirement on the ground that acomplaint was filed against him by the son of a person working therewho had committed suicide. On the retirement of V.P. Singh, hewas neither facing a departmental proceeding nor any judicialproceeding pending against him. The challan was presented in theCourt much after V.P.Singh was retired. Till the decision of theDelhi High Court, the charge was not framed. The Tribunal had skn 20 WP-14792.2022.edited.doc negated the plea made by V.P. Singh and directed a 2/3rd pension tobe paid. The Division Bench of the Delhi High Court consideredRule 9 of CCS (Pension) Rules and noted that in view of thelanguage of Rule 9(6)(b), since no judicial proceedings were pendingand since no chargesheet was issued when the Petitioner wassuperannuated V.P.Singh was entitled to relief, and accordingly thepetition was allowed. We have not been shown any contrarydecision. 23.Therefore, the Tribunal has fallen in error in dismissingthe Original Application filed by the Petitioner In thesecircumstances, the Petitioner is entitled to succeed. The writpetition is allowed. The rule is made absolute in terms of prayerclauses (i), (ii) and (iii). The impugned order dated 15 June 2020passed by the Respondents is set aside. The Original Applicationfiled by the Petitioner is allowed. The consequential action be takenby the Respondents within four months from today. No costs. (MANJUSHA DESHPANDE, J.) (NITIN JAMDAR, J.)