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HIGH COURT OF DELHI
W.P.(C) 15943/2024, CM APPLs. 67013/2024 & 67014/2024
CHIEF ELECTORAL OFFICER AND ORS. ....Petitioners
Through: Mr. Yeeshu Jain, ASC
Through: Mr. Samarth Luthra, Adv.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
JUDGMENT
19.11.2024 C. HARI SHANKAR, J
1. The respondent was appointed to Grade-II of the Delhi Administration Subordinate Service[1] on 14 August 1986. He was thereafter promoted to Grade-I of the DASS and was appointed ad hoc to the DANICS[2] w.e.f.[3] 28 February 1995 and 20 May 2015.
2. While in service, FIR No. 58/2006 was registered against the respondent by the Anti Corruption Bureau[4], Delhi, under Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section DASS Delhi, Andaman & Nicobar Islands, Lakshadweep, Dadra & Nagar Haveli, Daman & Diu Civil Service with effect from “ACB” hereinafter 120B of the Indian Penal Code, 1860.
3. The respondent was compulsorily retired under FR 56(j)5 on 25 November 2019. It is not in dispute that the FIR was still pending before the competent Tribunal Court at the time of compulsory retirement of the respondent.
4. The ACB submitted a closure report on 2 December 2020 before the learned Special Judge (PC Act), ACB-II, Rouse Avenue Court. Vide order dated 18 December 2021, the learned Special Judge rejected the closure report and directed the matter to be investigated further by the ACB.
5. Consequent on his compulsory retirement, the respondent sought release of his pensionary benefits. The GPF and GEIGS[6] were released to the respondent and provisional pension was paid to him. However, final pension, gratuity, commuted pension and leave encashment had not been paid to the respondent. Repeated representations by the respondent having failed to elicit any favourable response from the petitioner, the respondent moved the Central Administrative Tribunal[7] by way of OA 506/2023, seeking (j) Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of less than three months in writing or three months’ pay and allowances in lieu of such notice:
(i) If he is,in Group ‘A’ or Group ‘B’ service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) in any other case after he has attained the age of fifty-five years;
6. The said OA stands disposed of by the Tribunal by way of the impugned order dated 18 January 2024.
7. Before the Tribunal, two issues arose. The first was with respect to withholding of the respondent’s pensionary benefits and the second was with respect to withholding of leave encashment due to the respondent.
8. Insofar as the withholding of pensionary benefits is concerned, the Tribunal observed that, by virtue of Rule 9(6)(b)(i)8 of Central Civil Services (Pension) Rules, 1972[9], pension would be withheld only if cognizance have been taken by the competent criminal court in the proceedings against the official concerned. Inasmuch as no cognizance have been taken by the Special Court, the Tribunal directed release, to the respondent, of his pensionary benefits.
9. Apropos leave encashment, the Tribunal noted that withholding of leave encashment had to abide by Rule 39(3)10 of Central Civil (6) For the purpose of this rule, - ***** (b) judicial proceedings shall be deemed to be instituted –
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made;” “the Pension Rules” hereinafter (3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any. Services (Leave) Rules 197211. The said Rule applies only where there was a decision by the authority withholding the leave encashment that there was a possibility of money becoming recoverable from the official on conclusion of the proceedings against him. Inasmuch as there was no such decision taken by the petitioner, the Tribunal held that leave encashment could also not be withheld.
10. We have recently decided a similar issue in Govt. of NCT of Delhi v. Anang Pal Singh12, apropos Rule 39(3) of Central Civil Services (Leave) Rules, 1972 itself in which we have taken the view that, in the absence of a specific decision by the authority withholding leave encashment that, in the event of the proceedings against the official culminating, there was a possibility of money being recovered from him, leave encashment could not be withheld. Admittedly, no such decision is forthcoming on the record in the present case. The withholding of the leave encashment was clearly illegal.
11. On the aspect of withholding of pension, we have heard Mr. Yeeshu Jain for some time. Mr. Jain has placed reliance on the judgment of the Supreme Court in Tula Ram v Kishore Singh13. He has specifically emphasized the following passages from the decision:
“the Leave Rules” hereinafter v State of Uttar Pradesh14 observed as follows: ‘Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. While considering the question in greater detail this Court endorsed the observations of Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee15 which was to the following effect: “It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.” *****
11. Mr. Mukherjee however submitted that the moment the Magistrate directed investigation he must be deemed to have taken cognizance, and, therefore, he could not have taken any of the steps excepting summoning the accused straight-away or directing reinvestigation. We have already pointed out that Chapter 12 and Chapter 14 subserve two different purposes: One pre-cognizance action and the other post cognizance action. That fact was recognised by a recent decision of this Court in the case of Devarpalli Lakshminaryana Reddy and Ors. v. V. Narayana AIR 1951 SC 207 AIR 1950 Cal 347 Reddy and Ors.16 where the Court observed as follows: The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operates in a distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizance offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3).
12. In the case of Gopal Das Sindhi and Drs. v. State of Assam and Anr17 this Court while approving the observations of Justice Das Gupta in the case referred to above, observed as follows: It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. *****
15. In these circumstances we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved thread-bare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge:
1. That a Magistrate can order investigation under Section 156 (3) only at the pre-cognizance stage, that is to [1976] Supp SCR 524 AIR 1961 SC 986 say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can pursue that complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
4. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.” Mr. Jain’s contention is that, therefore, it could not be said that the learned Special Judge has not taken cognizance of the alleged offence against the respondent.
12. On when a criminal court takes cognizance, the law is no longer res integra. In State of West Bengal v Mohd Khalid18, the Supreme Court held, on the aspect of taking of cognizance by the Magistrate, thus:
13. Paras 10 and 13 of State of Karnataka v Pastor P Raju19 are even more instructive:
14. Thus, prior to the Magistrate, or Judge, applying his judicial mind to the facts before him to arrive at a conclusion, even if prima facie, as to whether the alleged offence has, or has not, been committed, cognizance cannot be said to have been taken.
15. In the present case, the matter is still at the stage of investigation. No charge sheet has been filed. There is no evidence of application of judicial mind, by the learned Special Judge, of the facts of the case before him.
16. The passages from Tula Ram on which Mr. Jain places reliance do not in any way indicate that the learned Special Judge in the present case has taken cognizance. It is an admitted position that chargesheet is yet to be filed in the proceedings. As such, there can be no question of the learned Special Judge having taken cognizance in the case against the respondent.
17. In that view of the matter, applying Rule 9(6)(b)(i) of the CCS (Pension) Rules, we find no fault with the decision of the learned Tribunal to the effect that the pensionary benefits of the respondent could not have been withheld.
18. Accordingly, there is no cause for us to interfere with the present petition. The petition is dismissed in limine.
C.HARI SHANKAR, J. ANOOP KUMAR MENDIRATTA, J. NOVEMBER 19, 2024 vl/ar Click here to check corrigendum, if any