DILBAGH SINGH vs HOME DEPARTMENT on 31 December 2025

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: - a) Direct the respondents to grant of full salary from 2017 till retirement (i.e. 30-04-2023), gratuity, monthly pension as per full salary and other pensionary benefits to which he was legally entitled under law from the date of reinstatement into his services in terms of order dated 11-10-2021 issued by respondent No.4. b) Direct the respondents to accord consideration to the representation of the applicant by passing a speaking and reasoned order within some time frame. c) any other relief, which this Hon'ble Tribunal in the facts and circumstances of the case deems fit and proper.

2. The facts of the case as averred by the applicant in his pleadings, are as follows: - a) The applicant, a permanent resident of the Union Territory of Jammu and Kashmir and a citizen of India, was appointed as a by HARSHIT YADAV HARSHIT YADAV

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Constable in the J&K Police Department on 07.04.1987. On account of satisfactory service record, dedication, and experience, he was promoted to the rank of Selection Grade Constable in the year 2001 and thereafter to the rank of Head Constable (Havaldar) during the period 2010–2011. b) While serving as Head Constable, the applicant came to be placed under suspension vide order dated 02.06.2017 issued by the Superintendent of Police, Police Headquarters, Jammu, in connection with his involvement in FIR No. 64/2017 registered at Police Station Channi Himmat under Sections 279, 337 and 304-A RPC. Consequent upon the said order, the applicant remained under suspension from 02.06.2017 onwards. c) After remaining under suspension for a considerable period, the applicant was reinstated into service vide order dated 11.10.2021 issued by respondent No. 4, with immediate effect. Pursuant thereto, the applicant joined duties and continued to discharge his official functions honestly and to the satisfaction of his superiors. d) The applicant thereafter attained the age of superannuation and retired from service on 30.04.2023. However, according to the applicant, despite his reinstatement into service and subsequent retirement, the respondents failed to release his full salary and by HARSHIT YADAV HARSHIT YADAV

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service benefits for the period commencing from the date of suspension i.e. 02.06.2017 till the date of retirement. It is further pleaded that the applicant has not been paid pensionary benefits, including monthly pension and gratuity, on the basis of the last pay drawn by him. e) The grievance of the applicant is that once he was reinstated into service, he became legally entitled to full salary for the entire period of suspension and consequential pensionary benefits based on full pay. Despite representations made to the respondents seeking release of full salary from 2017 till retirement and fixation of pension accordingly, no decision has been taken by the respondents, compelling the applicant to approach this Tribunal for redressal of his grievances.

3. The respondents have filed their written statement wherein they have averred as follows: - a) The respondents have filed their written statement raising preliminary objections as well as responding on merits. At the outset, it is contended that the present Original Application does not disclose infringement of any legal, statutory or constitutional right of the applicant and is therefore liable to be dismissed in limine. It is further pleaded that the applicant has by HARSHIT YADAV HARSHIT YADAV

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no enforceable cause of action and has approached the Tribunal by suppressing material facts, thereby disentitling himself to any discretionary relief. b) On facts, the respondents submit that the applicant was appointed as Constable vide DPO Udhampur Order No. 364 of 1987 dated 02.04.1987 and had joined duties on 03.04.1987. It is admitted that the applicant was placed under suspension on 02.06.2017 in connection with FIR No. 64/2017 registered under Sections 279, 337 and 304-A RPC. It is also admitted that the applicant was reinstated into service vide order dated 11.10.2021. c) However, it is specifically pleaded that the reinstatement of the applicant was ordered while a departmental/judicial proceeding arising out of the aforesaid FIR was still pending. The respondents submit that upon retirement of the applicant on 30.04.2023, his case became governed by the provisions of Article 168-D of the Jammu and Kashmir Civil Service Regulations, Volume-I. In terms thereof, where departmental or judicial proceedings are pending against a government servant at the time of superannuation, such employee is entitled only to provisional pension till the conclusion of the proceedings and passing of final orders.

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d) It is stated that in accordance with the aforesaid statutory provisions, the applicant has already been granted provisional pension and other admissible retiral benefits. The respondents assert that provisional pension is being regularly paid to the applicant and that amounts towards GPF, leave salary and other provisional benefits to the tune of ₹11,26,692/- have already been released in his favour. e) The respondents deny the claim of the applicant for full salary for the suspension period as well as fixation of pension on the basis of full pay, contending that the same cannot be granted as a matter of right during the pendency of departmental or judicial proceedings. It is reiterated that final pensionary benefits can only be settled after conclusion of the pending proceedings, strictly in accordance with law. f) The respondents therefore submit that the applicant has been granted all benefits to which he is legally entitled at this stage and that the present Original Application is misconceived, devoid of merit and deserves dismissal.

4. Heard learned counsel for the parties and perused the pleadings made by them.

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5. The applicant, a retired Head Constable of the Jammu and Kashmir Police, has approached this Tribunal seeking release of full salary for the period commencing from the date of his suspension in the year 2017 till the date of his superannuation on 30.04.2023, along with consequential pensionary benefits on the basis of last pay drawn. The grievance essentially arises from the fact that although the applicant was reinstated into service vide order dated 11.10.2021 and thereafter retired on attaining the age of superannuation, the respondents have not released his full salary for the suspension period and have confined him only to provisional pension.

6. The facts are largely undisputed. The applicant was appointed as Constable in the year 1987, earned promotions in due course, and was serving as Head Constable when he was placed under suspension on 02.06.2017 in connection with FIR No. 64/2017 registered under Sections 279, 337 and 304-A RPC. He remained under suspension for a considerable period and was ultimately reinstated into service on 11.10.2021. After reinstatement, the applicant joined duties and continued in service till his superannuation on 30.04.2023.

7. It is the admitted position of the respondents that after reinstatement, the applicant was permitted to work and his services were taken by the department till retirement. It is also not in dispute that the applicant by HARSHIT YADAV HARSHIT YADAV

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has been sanctioned provisional pension under Article 168-D of the Jammu and Kashmir Civil Service Regulations, Volume-I, on account of pendency of criminal proceedings arising out of the aforesaid FIR.

8. The short question which arises for consideration is whether the applicant, having been reinstated into service and having actually worked thereafter till superannuation, can be denied salary for the period of suspension, and whether pensionary benefits can be finally settled during the pendency of the criminal case.

9. So far as the issue of salary is concerned, it is well settled that suspension is not a punishment in itself, but only a measure pending inquiry or trial. Once an employee is reinstated into service and allowed to work, the suspension period does not automatically get converted into a period of punishment unless a specific order is passed to that effect after culmination of proceedings.

10. The Hon’ble Supreme Court in State of Kerala v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 has held that payment of salary for the suspension period depends upon the final outcome of proceedings, but where the employee is reinstated and no penalty affecting pay is imposed, the competent authority is required to pass an appropriate order regarding treatment of the suspension period. Similarly, in Ajay Kumar Choudhary v. Union of India (2015) 7 SCC 291, the by HARSHIT YADAV HARSHIT YADAV

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Supreme Court emphasized that suspension cannot be prolonged indefinitely and that reinstatement restores the employee to service, subject to lawful consequences.

11. In the present case, the respondents have not placed on record any order treating the suspension period as “dies non” or denying salary by way of punishment. The applicant was reinstated into service without any such stipulation and thereafter continued to serve the department till retirement. In absence of any specific order to the contrary, denial of salary for the suspension period, even after reinstatement and retirement, cannot be sustained in law.

12. The respondents’ reliance on Article 168-D of the J&K CSR is misplaced insofar as salary is concerned. Article 168-D governs the grant of pension where departmental or judicial proceedings are pending at the time of retirement. It does not authorise withholding of salary for a period during which the employee stood reinstated and continued in service without any subsisting order of penalty.

13. Accordingly, this Tribunal is of the considered view that the applicant is entitled to release of salary for the period from the date of suspension i.e. 02.06.2017 till the date of superannuation, in accordance with rules, after adjusting subsistence allowance already paid, if any.

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14. However, the position is materially different with regard to regular pension and other retiral benefits. The criminal case arising out of FIR No. 64/2017 is admittedly still pending. Under Article 168-D of the J&K CSR, where judicial proceedings are pending against a government servant at the time of retirement, only provisional pension can be sanctioned and final pensionary benefits can be settled only after conclusion of such proceedings.

15. The Hon’ble Supreme Court in Union of India v. K.V. Jankiraman (1991) 4 SCC 109 and State of Jharkhand v. Jitendra Kumar Srivastava (2013) 12 SCC 210 has clearly held that while pension is a property right protected under Article 300-A of the Constitution, the State is legally empowered to regulate its final disbursement in accordance with statutory rules where disciplinary or judicial proceedings are pending.

16. Therefore, the action of the respondents in confining the applicant to provisional pension during pendency of the criminal case cannot be faulted. Any direction for release of regular pension, gratuity or final fixation at this stage would be contrary to the statutory mandate and settled legal position.

17. Balancing the equities and the legal framework governing the field, this Tribunal finds merit in the applicant’s claim only to the limited by HARSHIT YADAV HARSHIT YADAV

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extent of release of salary, while safeguarding the statutory rights of the respondents with regard to pensionary benefits.

18. For the foregoing reasons, the Original Application is partly allowed in the following terms: a) The principle of “no work no pay” shall apply to the applicant for the period during which he remained under suspension. The applicant shall not be entitled to full salary for the suspension period as a matter of right. b) The applicant shall be entitled only to subsistence allowance for the period he remained under suspension, strictly in accordance with the applicable service rules. In case any shortfall in subsistence allowance is found, the same shall be released to him within a period of three months from the date of receipt of a certified copy of this order. c) The salary for the suspension period shall become payable only if:  the applicant is honourably exonerated in the criminal case arising out of FIR No. 64/2017, and  the disciplinary proceedings, if any, also culminate in his favour, by HARSHIT YADAV HARSHIT YADAV

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 and only thereafter, upon regularisation of the suspension period by sanctioning leave of the kind due, as permissible under the relevant rules. d) In the event the applicant is not exonerated in the criminal case and/or disciplinary proceedings, he shall not be entitled to salary for the suspension period, except to the extent of subsistence allowance already admissible and paid. e) It is further clarified that regular pension, gratuity and other final retiral benefits shall remain subject to and governed by the final outcome of the criminal case and disciplinary proceedings, and shall be settled strictly in accordance with the applicable statutory rules after their conclusion. f) The provisional pension already sanctioned to the applicant shall continue till such final determination. g) No order as to costs. (RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit /

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