Pension Or Retiral Benefits Of Govt Employee Can Only Be Withheld When Cognizance Is Taken On Police Report Before Retirement: MP High Court

In a recent judgement, the High Court of Madhya Pradesh held merely on the basis of a complaint or report against the government servant before the date of retirement, he cannot be deprived of his right to a pension or other retiral dues. There must be cognizance of the complaint or report of a police officer on the date of retirement.

The Counsel for the petitioner argued that withholding the full pension and gratuity is illegal, and arbitrary under Rule 9 of the Pension Rules, 1976. He further argues that as per Sub-Rule 6(b)(i) of Rule 9, read with Sub-Rule (4) of Rule 9 of the Pension Rules, 1976, in the case of a government servant who has retired upon attaining the age of superannuation or otherwise, and against whom any departmental or judicial proceedings are instituted, or where departmental proceedings are continued under Sub-Rule (2), provisional pension and death-cum-retirement gratuity shall be sanctioned. Additionally, under Sub-Rule 6(b)(i) of the Pension Rules, 1976, the pension can only be withheld when judicial proceedings are pending.

The counsel for the respondent, on the other hand, argued that under Rule 9(6)(b)(i) of the Pension Rules, 1976, judicial proceedings will be considered to have been instituted when the complaint or the report of the police officer has been submitted to the competent authority for taking cognizance.

The question raised before the court was “Whether full pension and retiral dues can be withheld if no charge sheet is filed and no cognizance is taken on the complaint/report of a police officer in a criminal case as of the date of retirement, or if it can be withheld when a complaint is made to the Magistrate or upon the report of a police officer?”

Justice Vijay Kumar Shukla observed, “The intention of the legislature is to withhold or withdraw the pension or retiral dues only when the cognizance is taken on the complaint or report of a police officer in a criminal proceeding then only it shall be deemed to be instituted.”

He further relied on Kanai Lal Sur vs. ParamnidhiSadhukhan, AIR 1957 SC 907, wherein it was held, “Primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.”

While clarifying the meaning of the term 'cognizance' under Section 190 of the Cr.P.C., the court stated that it is only when a Magistrate applies his mind considering the facts of a complaint and material prima facie which forms an opinion as to whether a case is made out for cognizance or not. The court further observed that the legislature has intentionally used the word 'cognizance' in Rule 9(6)(b)(i) of Pension Rules, 1976 that a pension or retiral dues of a retired government servant can be withheld or withdrawn only when cognizance is taken on the complaint or report of a police officer in a criminal proceeding.

Therefore, it was held that the mere making of a complaint or report against the government servant before the date of retirement would not deprive him of his right to a pension or other retiral dues. The present petition was hence, allowed.

Case Title: DR. RAJESH KOTHARI v. URBAN ADMINISTRATION AND HOUSING DEPARTMENT AND OTHERS, WP No. 11771/2020

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