JUDGMENT S.S. Nijjar, J.
1. In this writ petition under Articles 226/227 of the Constitution of India, the petitioner seeks the issuance of a writ in the nature of Certiorari quashing the order dated 19.4.2004 (Annexure P-5) by which the respondents have withheld the gratuity of the petitioner and other pensionary benefits. The petitioner also seeks a direction to the respondents to release the retiral benefits alongwith interest at the rate of Rs. 180/- per annum from the date of his retirement till payment.
2. The petitioner joined the service of Punjab State Electricity Board (hereinafter referred to as "the Board") on 9.12.1966 as a Lower Division Clerk. On 11.11.1989, he was promoted as Cashier. He retired from service on 31.5.2003 on attaining the age of superannuation. The Board had partly released the pensionary benefits to the petitioner, but withheld the amount of gratuity. The petitioner claims that at the time of superannuation, no enquiry/charge-sheet was pending against him. The pension of the petitioner has been fixed at the rate of Rs. 4278/- + Dearness Relief fixed from time to time per month. The petitioner made a number of requests to the Board for release of the gratuity. Since the respondents failed to pass any order, he served a legal notice on the Board. When no response was received to the legal notice, the petitioner filed C.W.P. No. 19496 of 2003. The aforesaid writ petition was disposed of by this Court on 15.12.2003. A direction was issued to the Board to treat the legal notice as a representation and to take a decision on the same within four months from the date that a certified copy of the order is received by them. In compliance of the aforesaid order, the Board has passed the impugned order dated 19.4.2004 (Annexure P-5). It is stated that the petitioner had embezzled a sum of Rs. 3018/-, on the basis of which a criminal case has been registered against him. Therefore, the decision with regard to payment of gratuity will be taken after the decision of the court. It is this order which is challenged by the petitioner in the present writ petition.
3. It is further pleaded by the petitioner that he was issued charge-sheet No. 109 dated 19.3.1998 for the alleged embezzlement of Rs. 3018/- and temporary embezzlement of Rs. 8500/-. The FIR also relates to the same amount. The petitioner submitted reply to the charge-sheet. After taking into consideration the reply, the respondents have passed an order on 16.11.2000 by which the petitioner had been held guilty of temporary embezzlement of Rs. 8500/- as he did not place the same in the chest during the period 6.5.1997 to 16.5.1997. Taking a lenient view, the Board had stopped one increment of the petitioner without future effect. The amount of Rs. 3018/- alleged to have been embezzled by the petitioner has been deposited with the Board vide RO4 on 17.5.1999. The petitioner was also issued Charge-sheet No. 174 dated 4.10.1999 for alleged embezzlement which had been detected by special audit, due to non-posting/partial posting of RO4/stubs in the CCR books. For the aforesaid alleged misconduct, two increments of the petitioner were stopped without future effect vide order dated 26.8.2002.
The respondents have filed a written statement. It is pleaded that the gratuity of the petitioner has been withheld under Rule 2.2(c)(1) of the Punjab Civil Services Rules Chapter II (General Provision Relating to Grant of Pensions) (hereinafter referred to as "the Pension Rules"). The factual position as narrated by the petitioner is admitted. The respondents further stated that the retiral benefits of the petitioner have been released, except for the gratuity which has been withheld due to the pendency of the criminal case.
4. We have heard the learned Counsel for the parties at length and perused the paper-book.
5. Learned Counsel for the petitioner submits that on the date of superannuation, there was no departmental proceedings pending against the petitioner. The respondents have no jurisdiction to withhold the gratuity of the petitioner due to pendency of the criminal case. On the other hand, learned Counsel for the respondents submits that in view of the provisions contained in Rule 2.2(c)(I) of the Pension Rules, the gratuity cannot be released till the conclusion of the criminal case.
6. We have considered the submissions made by the learned Counsel for the parties.
7. From the perusal of the facts narrated above, it becomes evident that the petitioner had been issued charge-sheets for embezzling small amounts of money. It becomes evident that the petitioner has been departmentally punished for the alleged misconduct. Therefore, no further punishment could be imposed on the petitioner, as he cannot be punished twice for the same misconduct. In the case of Shiv Kumar Sharma v. Haryana State Electricity Board, Chandigarh and Ors. 1988(3) S.L.R. 524, it has been clearly held by the Supreme Court as follows:
6.We are unable to accept the above contention. The penalty was imposed on April 15, 1968 and, as a result of which, he was deprived of the monetary benefit of one increment for one year only. The penalty by way of stoppage of one increment for one year was without any future effect. In other words, the appellant's increment for one year was stopped and such stoppage of increment will have no effect whatsoever on his seniority. Accordingly, the Board acted illegally and most arbitrarily in placing the juniors of the appellant above him in the seniority list and/or confirming the appellant in the post with effect from December 1, 1969, that is, long after the date of confirmation of the said respondents Nos. 2 to 19. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. It is apparent that for the same act of misconduct, the appellant has been punished twice, that is, first by the stoppage of one increment for one year and second, by placing him below his juniors in the seniority list.
8. In our opinion, the aforesaid observations are fully applicable to the facts and circumstances of the present case. The petitioner had already been punished by order dated 16.11.2000. One increment of the petitioner was stopped without future effect. For the same misconduct, the respondents would have no jurisdiction to withhold the pensionary benefits of the petitioner.
9. We may further notice that with regard to embezzlement of Rs. 3018/-, a criminal case was also registered against him which is still pending. Except this criminal case, no departmental proceedings were pending against the petitioner on the date of his superannuation i.e. 31.5.2003. The only question for determination, therefore, is as to whether the gratuity of the petitioner could have been withheld on the basis of Rule 2.2(c)(1) of the Pension Rules? The aforesaid provision is as under:
(c)(1): Where any departmental or judicial proceeding is instituted under Clause (b) of Rule 2.2 or where a departmental proceeding is continued under Clause (i) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, 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 up to date immediately preceding to 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 of final orders thereon.
10. A bare perusal of the aforesaid provision shows that the petitioner would be entitled to provisional pension during the pendency of the judicial proceedings instituted under Clause (b) of Rule 2.2, but no gratuity or retirement gratuity shall be paid to him, until the conclusion of such proceedings. Rule 2.2 provides for recovery from pension in different circumstances. Under Rule 2.2(a), the Government can withhold or withdraw pension or any part of it, if the pensioner is convicted of serious crime or is guilty of grave misconduct. In case of conviction, action shall be taken in the light of the judgment of the court relating to such conviction. In case where the Government is satisfied that the pensioner is, prima facie, guilty of grave misconduct, a notice may be served on the pensioner specifying the action proposed to be taken against him and calling upon him to submit his explanation. No action is sought to be taken against the petitioner under Rule 2.2(a). It is Rule 2.2(c)(1) which is invoked by the Board. This Rule can only be invoked where any departmental or judicial proceeding is initiated under Clause (b) of Rule 2.2 or where a departmental proceeding is continued under Clause 1 of the Proviso thereto. It is, therefore, apposite to reproduce Rule 2.2(b) and Proviso (I) which is as under:
(b) The Government further reserve to themselves 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 a pension of the whole or of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:
(1) such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service.
11. A bare perusal of the aforesaid rule shows that it can be invoked if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his services. In the present case, the enquiry proceedings had already concluded against the petitioner and he had been punished by orders dated 16.11.2000 (Annexure P-6) and 26.8.2002 (Annexure P-9). Therefore, the petitioner is correct in his submission that no departmental proceedings were pending against him at the time of his superannuation on 31.5.2003. In our opinion, the respondents cannot invoke Rule 2.2(b) on the ground that the criminal case in F.I.R. No. 112 of 1999 is still pending against the petitioner. The sine quo non for invoking Rule 2.2(b) is that the pensioner has been found guilty in a departmental or judicial proceeding which had continued after the superannuation of the employee. This view of ours finds support from the judgment of the Supreme Court in the case of High Court of Punjab and Haryana v. Amrik Singh 1995(1) S.L.R. 236. In para 4 of the aforesaid judgment, it is observed as follows:
4. Rule 2(2) of the Pension Rules, Clause (b) clearly mentions thus:
2(2)(b) The Government further reserves to themselves the right to withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and right of ordering the recovery from the pension of the whole or part of any pecuniary loss caused to Government. If, in a departmental or judicial proceeding, the petitioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement.
A reading thereof clearly indicates that the disciplinary authority, consequent upon the result of the departmental or judicial proceedings, should record a finding whether the delinquent has committed grave misconduct or negligence during the period of his service including the service rendered upon re-employment after retirement. On recording such a positive finding, the competent authority has been empowered to withhold the pension in whole or in part or to recover the pecuniary loss, if any, caused to the Government. These orders are only consequential to the finding of the guilty of grave misconduct or negligence in the discharge of the duty during the period of his service including the service rendered upon re-employment after retirement.
12. As noted above, in the present case, the departmental proceedings were initiated when the petitioner was in service. Orders of punishment were also passed when the petitioner was in service. A minor punishment was imposed on the petitioner. Therefore, the Department has not recorded a finding that the petitioner is guilty of grave misconduct. However, on the same allegation, F.I.R. had been registered. The criminal proceedings are, therefore, continuing. Proceedings under Rule 2.2(b) of the Pension Rules can only be initiated on the conclusion of the criminal trial and the petitioner is found guilty of the charge under Section 408 I.P.C. The provision contained in Clause (c) cannot be read in isolation of the provisions contained in Clause 2.2(b) as contended by the learned Counsel for the respondents. The continuation of the criminal case cannot deprive the petitioner of the death-cum-retirement gratuity. As noticed earlier, the petitioner had already deposited a sum of Rs. 3018/- with the respondents on 17.5.1999 i.e. only four days after the FIR No. 112 was registered on 13.5.1999. Thereafter, he served the Board for four years till he retired on superannuation on 31.5.2003. Taking into consideration, the entire facts and circumstances of this case, we are of the opinion that the petitioner is entitled to receive the entire retiral benefits.
13. In view of the above, we allow the writ petition and quash the order dated 19.4.2004 (Annexure P-5). We also direct the respondents to release the entire retiral benefits of the petitioner. Let the retiral benefits be released to the petitioner within a period of three months of the receipt of a certified copy of this order. No costs.