Provisional pension until case attains finality: Gauhati High Court

 STAFF REPORTER

GUWAHATI: The Gauhati High Court recently ruled that a pensioner is entitled to a provisional pension until an appeal in a case attains finality and that a criminal appeal is a judicial proceeding, according to Rule 22(1) of the Assam Services (Pension) Rules, 1969.

The single-judge bench of Justice Arun Dev Choudhury noted that Rule 22 (1) of Rules, 1969 (later referred to as 1969 Rules) provides that when a proceeding, either departmental or judicial, was instituted under Rule 21 of the Rules, 1969 and it is continued, and in the meantime, the officer retires on attaining the age of compulsory retirement or otherwise, he is entitled to get the provisional pension.

It was noted that such provisional pension should not exceed the maximum pension that would have been admissible on the basis of his qualifying service from the date of retirement to the date on which such proceeding, either a judicial proceeding initiated under Rule 21 of the 1969 Rules or a continued departmental proceeding, is concluded and final orders are passed.

The HC bench was hearing a writ petition filed by a government servant, who served as Upper Division Assistant (UDA) and In-Charge Accountant of Dhemaji Zilla Parishad and was arrested in connection with offences u/s 468, 471, 409 of the IPC and Section 7 of the Prevention of Corruption Act. The case was later pursued by his wife after his death.

The respondents in the case kept the petitioner under suspension on allegations of financial irregularities to the tune of Rs. 1.88 crore for more than 13 months without the respondent authorities completing disciplinary proceedings against the petitioner or releasing arrears of salary and subsistence allowance.

The petitioner filed a writ petition before the HC, which was disposed of by giving a direction to the respondent authorities to take a considered decision with regard to revocation of suspension order, payment of subsistence allowance, and release of arrears of salary.

Following the order, the petitioner was reinstated by the respondent authorities. However, a day prior to his retirement, the petitioner was removed from service as punishment.

The petitioner then challenged the removal order, which was set aside. He further filed a contempt petition, wherein the court passed an order directing the respondent contemnors to ensure that provisional pension was paid, as the petitioner could not be deprived of provisional pension under Rule 22(1) of the 1969 Rules.

Even while the contempt proceeding was pending, the petitioner was convicted by the trial court in the case based on the FIR registered against him. However, the petitioner was granted a provisional pension until the date of his conviction.

The petitioner then filed an appeal against his conviction, which was admitted by the High Court. He also filed the instant writ petition, averring that he was entitled to family pension till final orders were passed in the case initiated after the FIR was lodged.

In a turn of events, the petitioner expired even as both the appeal and writ petition were pending, and his wife got herself impleaded in both the cases.

The counsel of the petitioner submitted that nobody could stop the provisional pension on conviction when an appeal is preferred and pending. He contended that Rule 22(1) of the 1969 Rules was enacted to protect the interests of pensioners against whom proceedings are pending during the period of service and no final order has been passed on the date of retirement.

The standing counsel for the state, on the other hand, submitted that when a person is convicted, determination is made and finality is achieved when related to the conviction of the person.

After considering the facts in the case, the bench observed that the judicial proceeding initiated against the now deceased petitioner during his service period shall attain finality on the determination of the criminal appeal (Crl. Appeal No. 399/2019).

The bench also concluded that the criminal proceedings against the petitioner arose out of Rule 21 of the 1969 Rules, and as the court was concerned with judicial proceedings, the respondents were directed to ensure that payment as determined should be released to the petitioner’s wife within four weeks.

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