1. Heard Ms. D. Borgohain, learned counsel for the petitioner. Also heard Mr. K. Konwar, learned Additional Advocate General, Government of
Assam assisted by Mr. P. Handique, learned counsel representing the P&RD Department, Assam, Mr. S. K. Medhi, learned Standing Counsel for the
Accountant General (A&E), Assam and Mr. A. Chaliha, learned Standing Counsel for the Finance Department, Assam.
2. The issues:-
i. The question involved in the present writ petition is whether the term used “conclusion of a proceeding and final order passed†in Rule 22 (1) of
the Assam Services (Pension) Rules, 1969 (herein after referred as Rules, 1969), in respect of a criminal proceeding shall mean conclusion of a
proceeding when a person is convicted or whether such finality and conclusion of proceeding shall attain finality after determination of the appeal as
provided under Section 393 of the Cr.P.C.
ii. The second question will be whether under Rule 21 of the Rules, 1969, the Governor is empowered to withheld the provisional pensionpermanently
or for a specified period or a regular pension which has already been granted.
3. The facts:
The facts in the present case which is not in dispute can be summarized as follows:-
I. The husband of the present petitioner, who was a Government servant and serving as UDA and I/C Accountant of Dhemaji Zilla Parishad was
arrested in connection with Dhemaji Police Station Case No. 156/2011 under Section 468/471/409 of the Indian Penal Code and under Section 7 of the
P.C. Act, 1988 on 26.05.2011.
II. Subsequently the Commissioner, Panchayat & Rural Development Department by an order dated 30.05.2011 placed the petitioner under
suspension w.e.f. 26.05.2011 (form the date of arrest). The order dated 30.05.2011 reveals that based on the report of the CEO, Dhemaji Zilla
Parishad that financial irregularities to the tune of Rs. 1.88 crores of public fund was committed by the petitioner, the petitioner has been placed under
Suspension. A departmental proceeding was also initiated.
III. The respondent authorities without completing disciplinary proceeding, kept him under suspension for more than 13 months and also did not release
the arrears of salary, subsistence allowance which compel the petitioner had to file a writ petition being WP(C) No. 3675/2022 before this Court,
which was disposed of under its order dated 12.09.2012, directing the respondent authorities to take a considered decision with regard to revocation of
suspension, payment of subsistence allowance for the period of suspension and release of arrears of salary as claimed in the writ petition by the
petitioner within a period of six weeks.
IV. Pursuant to such order dated 12.09.2012, the respondent authority under its letter dated 19.10.2012, re-instated the petitioner in service.
V. Subsequently, on 24.08.2017, a departmental proceeding was initiated by issuing show cause notice. Enquiry Officer was appointed and a day prior
to the retirement of the petitioner on 29.11.2017, the petitioner was removed from service as punishment.
VI. Such decision was again challenged by filing a writ petition being WP(C) No. 470/2018, before this Court which was disposed of under its order
dated 11.02.2019 by setting aside the order of removal and with a liberty to the employer to start de-novo proceeding.
VII. Alleging to non compliance of the order dated 11.02.2019 passed by this Court in WP(C) No. 470/2018, the petitioner filed a contempt petition
being numbered as Cont.Case(C) No. 581/2019, which was disposed of under its order dated 11.08.2020, by issuing a direction to all the respondent
contemnors to do the needful to ensure that the provisional pension is paid to the petitioner on or before 01.10.2020. While passing such order, this
Court concluded that under Rule 22(1) of the Rules, 1969, the petitioner cannot be deprived of provisional pension.
VIII. While the contempt proceeding was pending, the petitioner was convicted in the criminal proceeding being Special Case No. 8/2015, by the
learned Special Judge, Assam, Guwahati under its order dated 19.10.2019,which was initiated on the basis of FIR dated 26.05.2011 as discussed
hereinabove.
IX. Thereafter, by an order dated 18.09.2020, the petitioner was granted provisional pension with effect from 01.12.2017 till the date of his conviction
dated 19.10.2019.
X. In the meantime, the petitioner challenged his conviction in Criminal Appeal No. 399/2019, before this Court. This Court admitted such appeal on
24.10.2019 and, on an application being filed which was registered as I.A.(Crl)/415/2020, allowed the petitioner to go on bail under its order dated
15.09.2020.
XI. In the meantime, the petitioner filed the present writ petition  assailing the order dated 18.09.2020 with a prayer that the petitioner  is entitled
for grant of family pension under Rule 22 of the Rules,  1969 till the judicial proceeding which was initiated through lodging of  FIR dated
26.05.2011 is finalised.
XII. While both the appeal and writ petition were pending, the  petitioner expired on 13.10.2021. His wife (petitioner herein)
got  impleaded in both the cases i.e. the Criminal Appeal No. 399/2019 as  well as in the present writ petition.
4. Arguments of the learned counsel for the petitioner: -
I.Ms. Borgohain, learned counsel for the petitioner argues that the deceased husband of the present petitioner was deprived of the provisional family
pension inasmuch as there is no power to stop provisional pension on conviction when an appeal is preferred and pending.
II. Referring to Rule 22 of the Rules, 1969, learned counsel submits that Rule 22(1) is enacted to protect the interest of those pensioner against whom
a proceeding is pending during his period of service and no final order has been passed on the date of retirement. According to her, in the case in
hand, in terms of Section 393 of Code of Criminal Procedure, 1973, the proceeding initiated against the deceased employee shall continue till it attains
finality in an appeal or a Special Leave Petition before the Hon’ble Apex Court.
III. It is the contention of Ms. Borgohain, learned counsel that the Rule 21 of the Rules, 1969 empowers the Governor to withhold or withdraw
permanently or for a specific period of time regular pension when a pensioner is found guilty of misconduct or negligence committed during the period
of his service and such Rule shall be applicable when the proceeding attains finality and regular pension has been granted.
IV. Relying on the definition of the judicial proceeding as defined under Section 2(i) and Section 393 of the Code of Criminal Procedure, 1973, Ms.Â
Borgohain, learned counsel submits that when an appeal is pending, it cannot be said that the proceeding has attained finality. In
support of her contention, Ms. Borgohain, learned counsel relies on the judgment of a Coordinate Bench rendered on 12.02.2015 in WP(C) No.
1782/2014 (Samsul Haque â€"Vs- State of Assam & 6 ors). Ms. Borgohain, learned counsel further relies on the decision of the Hon’ble Apex
Court in the case of U. J. S. Chopra -Vs- State of Bombay reported in AIR 1955 SC 633.
V. Ms. Borgohain, learned counsel for the petitioner also argues that the intention of the legislature is very clear while framing the Rule 20 and Rule
22 of the Rules, 1969 inasmuch as in Rule 20 of the Rules, 1969 the word “conviction†has been used whereas in Rule 22 of the Rules, 1969, is
structured in a way giving finality of the proceeding, not specifically conviction. Therefore, from the aforesaid, it is clear that it was the intention of the
legislature to provide relief to a pensioner at least the provisional pension till the proceeding initiated against him attains finality.
5. Argument of Mr. K. Konwar, learned Additional Advocate General, Assam for the State respondents/department: -
I. when a person is convicted, the determination is made and finality is achieved so far the same relates to the conviction of the person. A mere
pendency of an appeal, even if, the sentence is stayed, the conviction shall remain. Therefore, so far relating to the conviction, it is a finality of the
judicial proceeding. In support of such contention, Mr. Konwar, relies on a decision of Madhya Pradesh High Court in Writ Appeal No. 1245/2012
(Raj Karan Singh -Vs-State of Madhya Pradesh), whereby dealing with a pari materia provision, it was held that provisional pension was to meet out
the contingencies, so that the employee may get provisional pension till the finality of the proceeding but as soon as the proceeding are concluded by
the criminal court convicting a retired employee he would not be entitled for further pension until and unless, his conviction is stayed or set aside by the
higher authority.
II. Relying on the constitution Bench decision of the Hon’ble Apex Court in the case of The State of Uttar Pradesh â€"Vs-Mohammad Nooh
reported in 1958 AIR SC 86, Mr. Konwar, argues that there is nothing in Indian Law to warrant the suggestion that decree or order of the Court or
Tribunal of the First instance becomes final only on the termination of all proceeding by way of appeal or revision. According to Mr. Konwar, the
impugned order dated 18.09.2020 is a valid order as the conviction of the deceased dated 19.10.2019 passed by the court of first instance is still
holding the field as the same was neither stayed or suspended or modified.
III. Relying on the judgment of the Hon’ble Apex court in the case of K. C. Sareen â€"Vs- CBI, Chandigarh reported in (2001) 6 SCC 584, Mr.
Konwar, submits that when a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law,
judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court.
IV. Relying on the judgment of the Hon’ble Apex Court rendered in Union of India and Ors â€"Vs- Shri Ramesh Kumar reported in 1997 Supp.3
SCR, Mr. Konwar argues that on the suspension of execution of sentence under Section 389 Cr.P.C., an accused avoids undergoing sentence pending
criminal appeal however, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government
servant on a misconduct which lead to his conviction by the court of law, does not loose its efficacy merely because appellate Court has suspended
the execution of sentence.
V. Relying on the judgment of Delhi High Court in the case of P.C.Misra, Danics/Joint Director (Retd.) â€"Vs- Union of India and Ors passed in
WP(C)/12470/2018, Mr, Konwar, argues that while dealing with a pari materia provision of Rule 69 (1) of CCS Pension Rules 1969, the Delhi High
Court held that finality shall mean the finality of the judgment and conviction passed by the Court of first instance and therefore, the pensioner shall not
be entitled for pension.
6. Determination and Decision of this Court:
This Court has given thoughtful considerations to the arguments advanced by the learned counsel for the parties. Also perused the materials available
on record.
I. Rule 20 of the Rules, 1969 provides that the Governor of Assam reserves a right to withhold or withdraw a pension or any part of it, if the pensioner
is convicted of serious crime or is guilty of grave misconduct. The explanation to the said Rule, provides that such power is exercisable in a case when
the crime or misconduct is committed after the pensioner has retired from service with a further clarification that such Rule shall not be applicable in
respect of crime or misconduct committed before the retirement from service. The explanation further refers that for the purpose of crime or
misconduct committed during the period of service, Rule 21 of the Rules, 1969 shall be applicable.
II. Rule 21, of the Rules, 1969 further provides that the Governor shall have a right to withhold or withdraw a pension or any part of it either
permanently or for a specific period and is also having the right to order recovery from the pension to meet any pecuniary loss caused to the
government when in a department or a judicial proceeding, the petitioner is found guilty of grave misconduct etc.
III. The explanation ‘B’ to the Rules, 1969 provides that a judicial proceeding is deemed to be instituted under Rule 21 of the Rules, 1969, in
case of a criminal proceeding, from the date on which complaint or report of police officer is made or on a date when the Magistrate takes cognizance
of such offence.
IV. From the aforesaid, it is clear that when a pensioner is found guilty of grave misconduct or negligence during the period of his service and in the
meantime he has retired and getting pension, the Governor of Assam can withhold or withdraw the pension in whole or in part thereof either
permanently or for a specific period. The Governor is further empowered to make recovery from such pension.
V. Rule 22 (1) of Rules, 1969 provides that when a proceeding either departmental or judicial was instituted under Rule 21 of the Rules, 1969 and such
proceeding continued, and in the meantime, the officer has retired on attaining the age of compulsory retirement or otherwise, he is entitled to get the
provisional pension, not exceeding the maximum pension which would have been admissible on the basis of his qualifying service from the date of
retirement to the date on which upon conclusion of such proceeding (either judicial proceeding initiated under Rule 21 of Rules, 1969 or departmental
proceeding is continued) final orders are passed.
VI. In the case in hand, the criminal proceeding was initiated within the meaning of Rule 21 of the Rules, 1969 while the husband of the petitioner was
in service. A departmental proceeding was also initiated within the meaning of Rule 21 of the Rules, 1969 during his service period, though the
petitioner was removed from service, such decision was set aside with a liberty to continue with de-novo proceeding which was not started.
Therefore, in the present case, this Court is concerned with the judicial proceeding and not the departmental proceeding within the meaning of Rule 21
and 22 of the Rules, 1969.
VII. Section 393 of the Code of Criminal Procedure, 1973 provides for finality of judgments and orders of appeal. It provides that judgment and orders
passed by an appellate Court upon an appeal shall be final except in the case as provided for under Sections 377, 378 and Sub-Section (4) of Section
384 or Chapter XXX of the Cr.P.C.
VIII. Section 377 of the Cr.P.C., provides for appeal by State government against sentence, which is having no relevance in the present case. Section
378 of the Cr.P.C. deals with appeal in case of acquittal and Sub-Section (4) of Section 384 of Cr.P.C., relates to summary dismissal of appeal under
Section 383 of Cr.P.C.
IX. Section 2(i) of Cr.P.C., defines judicial proceeding to include any proceeding in course of which evidence is or may be legally taken on oath. Thus,
the definition of judicial proceeding is an inclusive definition.
X. Chapter XXIX of Cr.P.C., deals with provisions and procedure of appeals, containing Sections 372 to 394 of Cr.P.C. Section 391 of Cr.P.C,
empowers the appellate Court to take additional evidence, when the appellate Court thinks necessary and the appellate Court can itself take such
evidence. Therefore, an appeal under Section 374 of Cr.P.C., as the case herein, shall for all meaning and purports, a judicial proceeding within the
meaning of Section 2(i) of the Cr.P.C.
XI. Now coming the argument and judgments relied on by Mr. Konwar, learned Additional Advocate General, Assam, this court is of the view that
the context in which the judgments passed by the Hon’ble Apex Court that have been relied upon by Mr. Konwar, learned Additional Advocate
General, Assam is not applicable in the given facts of the case inasmuch as the present case relates to a payment of pension and the legislature in its
wisdom specifically used the word and emphasised on “conclusion and finality†of judicial proceeding. Therefore, the judgment which relates to
the exercise of power under Article 311 and relating to execution of decree is not applicable in the present case inasmuch as a dismissal of
government servant cannot be equaled with a person who has retired and who is entitled for pension. In the considered opinion of this Court pension
being a very valuable right, the legislature in its wisdom has incorporated the provision of Rule 22 of Rules, 1969 so that the pensioner survives till the
allegation made against him attains finality.
7. In terms of the discussions and determination made hereinabove, this Court passes the following orders:-
I. Criminal Appeal is a judicial proceeding in the context of Rule 22 (1) of the Pension Rules, 1969.
II. Accordingly, the judicial proceeding initiated against the husband of the petitioner during his service period shall attain finality on the
termination/determination of the criminal appeal filed by the pensioner/husband of the petitioner under Section 374 of Cr.P.C., which is now being
pursued by the present petitioner.
III. Therefore, till such finality of judicial proceeding is attained, the pensioner/deceased husband of the petitioner shall be entitled for provisional
pension till his death i.e. and the present petitioner shall be entitled for provisional family pension till determination of the appeal being Crl. Appeal
No.399/2019, and further course of action shall depend upon the determination made in the appeal as discussed hereinabove.
IV. Accordingly, it is directed that the respondents/employers including the respondent No. 5, shall ensure thatÂ
payment as determined hereinabove shall be released/made within a period of four weeks from receipt of a certified copy of this order by the
aforesaid respondents to be submitted by the petitioner.
V. A compliance report be filed thereafter by the respondents before the Registry of this Court.
8. With the aforesaid observations, discussions and decisions, the present writ petition stands allowed. Parties to bear their own cost.
