Assam Services Rules | Pensioner Entitled To Provisional Pension Until Criminal Appeal Attains Finality: Gauhati High Court

The Gauhati High Court has held that a criminal appeal is a judicial proceeding in the context of Rule 22(1) of the Assam Services (Pension) Rules, 1969 ("1969 Rules") and a pensioner is entitled for provisional pension until appeal u/s 374 CrPC attains finality.

The Single Judge Bench of Justice Arun Dev Choudhury noted:

“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.”

The court was hearing a writ petition filed by a government servant (pursued by his wife after his death) who served as UDA and I/C Accountant of Dhemaji Zilla Parishad and was arrested in connection with offences u/s 468, 471, 409 of IPC and Section 7 of the Prevention of Corruption Act.

The petitioner was kept under suspension, on allegations of financial irregularities to the tune of Rs. 1.88 crores for more than 13 months, without the respondent authorities completing disciplinary proceedings or releasing arrears of salary, subsistence allowance.

He filed a writ petition before the High Court, which was disposed of with a direction to respondent authorities to take a considered decision with regard to revocation of suspension, payment of subsistence allowance and release of arrears of salary. The respondent authorities re-instated the petitioner, however, a day prior to his retirement, the petitioner was removed from service.

The petitioner challenged the removal order, which was set aside. He further filed a contempt petition wherein respondent contemnors were directed to ensure that provisional pension was paid. While passing the said order, the court had concluded that under Rule 22(1) of 1969 Rules, the petitioner could not be deprived of provisional pension.

While contempt proceeding was pending, the petitioner was convicted by the Trial Court in the case initiated on the basis of FIR registered against him. Thereafter, the petitioner was granted provisional pension w.e.f. December 01, 2017 till the date of his conviction.

The petitioner challenged his conviction through an appeal, which was admitted by the High Court. He also filed the present writ petition averring that he was entitled to family pension till the judicial proceeding initiated through lodging of FIR is finalized.

While both the appeal and writ petition were pending, the petitioner expired. Therefore, his wife got impleaded in both the cases.

The petitioner's counsel submitted that there is no power to stop provisional pension on conviction when an appeal is preferred and pending. It was contended that Rule 22(1) of the 1969 Rules was enacted to protect interests of pensioners against whom proceeding is pending during period of service and no final order has been passed on date of retirement.

On the other hand, Addl. Advocate General for State submitted that when a person is convicted, the determination is made and finality is achieved so far the same relates to conviction of the person.

The following issues were before the court:

1. Whether the term used “conclusion of a proceeding and final order passed” in Rule 22 (1) of the Assam Services (Pension) 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 CrPC.
2. Whether under Rule 21 of the Rules, 1969, the Governor is empowered to withhold the provisional pension permanently or for a specified period or a regular pension which has already been granted.

In the facts of the case, it was observed that the judicial proceeding initiated against the petitioner (now deceased) during his service period shall attain finality on the determination of the criminal appeal.

“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,” the court said.

On the second issue, it was observed 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 either permanently or for a specific period. Further, the Governor is empowered to make recovery from such pension.

Concluding that the criminal proceedings against the petitioner arose out of Rule 21 of the 1969 Rules and the court was concerned with judicial proceedings as opposed to departmental proceedings, the court directed the respondents to ensure that payment as determined was released to petitioner's wife within four weeks.

Counsel for petitioner: Advocate D. Borgohain 

Counsels for respondents: Addl. Advocate General K Konwar assisted by Advocate P Handique; Standing Counsels SK Medhi and A Chaliha

Case Title: On the death of Anil Mahanta v. The State of Assam & 4 Ors., WP(C)/5034/2020

Citation: 2023 LiveLaw (Gau) 101

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