feroz ahmad mir vs JAL SHAKTI DEPARTMENT on 22 October 2026

1. Union Territory of J&K, through, Principal Secretary to Govt. Jal Shakti Deparment Civil Secretariat Srinagar /Jammu.

2. Principal Secretary to Govt, Housing and Urban Development Department, Civil Secretariat Jammu/Srinagar. Pin Code 190009.

3. Vice- Charman, J&K Lakes & Conservation Management, Authority, Srinagar. ….Respondents

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By Advocate :- Mr. Rais Ud Din Ganaie, DAG

O R D E R (FINAL) JUSTICE RITU TAGORE, MEMBER [JUDL.]

01. The applicant, a retired Government employee, has approached this Tribunal calling in question the validity of Government Order No. 267-JK(JSD) of 2025 dated 28.11.2025, whereby his claim for release of pension and other retiral and pensionary benefits has been rejected on the ground of the pendency of criminal proceedings against him before the competent criminal court. Consequently, the applicant has also sought a direction to the respondents to release his retiral and pensionary benefits, including pension, General Provident Fund (GPF), gratuity, leave salary and other admissible dues, together with consequential benefits and interest, in accordance with the applicable rules.

02. The case of the applicant is that he was appointed as Junior Engineer pursuant to Government Order No. PW-

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210 of 1988 dated 08.03.1988. He was subsequently placed as In-charge Assistant Engineer and, vide Government Order No. 21PW/Hyd of 2005 dated 18.01.2005, was accorded temporary placement as In- charge Assistant Executive Engineer. He ultimately retired from service on 31.03.2023 while serving as Executive Engineer in the J&K Lakes Conservation and Management Authority.

03. The applicant was implicated in FIR No. 12/2015 registered by the Vigilance Organisation, now the Anti- Corruption Bureau, in connection with allegations relating to the approval process for construction of a commercial complex at Hari Singh High Street, Srinagar. The allegations pertain to his participation in a meeting of the Building Operation Controlling Authority (BOCA) held on 19.04.2008 as a proxy representative of the J&K Lakes and Waterways Development Authority (LAWDA). The applicant maintains that his role was confined to representing the Authority and that the material does not

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establish any culpability on his part.

04. In connection with the aforesaid matter, the applicant was placed under suspension vide Government Order No. 99- JK(HUD) of 2021 dated 21.06.2021. Sanction for prosecution against the applicant and other officials was accorded by the General Administration Department vide Government Order No. 32-JK-GAD(Vig) of 2021 dated 07.06.2021. The charge-sheet in the criminal case was thereafter presented before the Court of the Additional Special Judge, Anti-Corruption, Srinagar, on 18.08.2021, as stated in the respondents’ reply.

05. The respondents, on the other hand, have sought to justify their action by placing reliance upon Articles 168-A and 168-D of the Jammu and Kashmir Civil Services Regulations, 1956. Their case is that the criminal proceedings instituted against the applicant are pending adjudication before the competent court and that the charge-sheet was presented prior to his retirement. According to the respondents, the pendency of the judicial

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proceedings warrants regulation of the applicant’s retiral benefits in accordance with the applicable rules.

06. Heard learned counsel for the parties and perused the pleadings, documents placed on record, the impugned Government Order and the relevant legal provisions.

07. According to the applicant, the allegations forming the subject matter of the criminal prosecution are substantially identical to those examined in the departmental proceedings. The Inquiry Officer, upon consideration of the material placed before him, returned findings in favor of the applicant, where after the departmental proceedings were closed. The period during which the applicant remained under suspension was also treated as spent on duty for all purposes. It is, therefore, contended that no adverse departmental finding survives against him so as to furnish an independent basis for withholding his retiral benefits. In these circumstances, the applicant submits that the impugned order rejecting his claim is legally unsustainable and deserves to be set aside.

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08. The controversy which arises for consideration is whether the pendency of criminal proceedings against a retired Government employee, notwithstanding the conclusion of departmental proceedings in his favor, authorizes the respondents to withhold all his retiral benefits, or whether such withholding must remain confined to the benefits and circumstances expressly covered by the applicable statutory provisions.

09. It is a well-settled principle of law that departmental proceedings and criminal prosecution operate in distinct legal spheres. The purpose, scope and standard of assessment in the two proceedings are different. Consequently, exoneration in departmental proceedings does not, by itself, bring a pending criminal prosecution to an end, nor does it automatically determine the outcome of the criminal case. At the same time, the pendency of criminal proceedings cannot be treated as an unrestricted authority to withhold every service or retiral benefit otherwise payable to an employee. The effect of such

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pendency must be determined with reference to the specific statutory provisions governing the benefit concerned.

10. It is equally well settled that pension and other retiral benefits constitute valuable statutory entitlements and cannot be withheld except in accordance with law. Pension is not a bounty or a gratuitous payment dependent upon the sweet will and pleasure of the employer, but a right accruing to an employee under the applicable service rules in consideration of the service rendered.

11. In Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330, the Hon’ble Supreme Court recognized the right to receive pension as a right flowing from the applicable rules and as property protected by law. The principle was reiterated in D.S. Nakara v. Union of India, (1983) 1 SCC 305, and further affirmed in State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, wherein it was held that pensionary benefits cannot be withheld except under the authority of law. The

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respondents are, accordingly, required to demonstrate that the withholding of each retiral benefit in question is authorized by the applicable provisions of the Jammu and Kashmir Civil Services Regulations 1956 or any other relevant statutory provision. In the absence of such authority, the withholding cannot be sustained merely by reference to the pendency of criminal proceedings.

12. Before proceeding further, it would be apposite to notice the relevant provisions governing the withholding or regulation of pensionary and other retiral benefits in the circumstances contemplated thereunder. In this regard, Articles 168-A and 168-D of the Jammu and Kashmir Civil Services Regulations, 1956, assume significance, as they delineate the circumstances in which proceedings may be instituted or continued against a retired employee and the consequences that may follow in respect of pension and gratuity.

13. Article 168-A of the Jammu and Kashmir Civil Services Regulations reserves to the Government the right to order

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recovery from the pension of an officer of an amount representing the loss caused to the Government by the negligence or fraud of such officer during service, as established in judicial or departmental proceedings, subject to the conditions stipulated therein. The provision also prescribes requirements concerning the institution and conduct of proceedings, particularly where such proceedings are initiated after the employee has ceased to be on duty. Its application, therefore, depends upon the nature of the proceedings and fulfilment of the statutory conditions prescribed therein. It cannot be construed as a general power to withhold all retiral benefits merely because an allegation of misconduct remains the subject matter of a criminal prosecution.

14. Article 168-D of the aforesaid Regulations deals with the payment of provisional pension where qualifying departmental or judicial proceedings are instituted or continued against an officer who has retired. Under the said provision, provisional pension is payable subject to

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the prescribed conditions, while gratuity or death-cum- retirement gratuity remains withheld until conclusion of the proceedings and issuance of final orders. The provision must be read in conjunction with Article 168-A and applied in accordance with the requirements of the statutory scheme. The Government instructions appended to the provision further clarify that payment of provisional pension is mandatory in the circumstances covered by the provision and that the pension-sanctioning authority has no discretion to sanction an amount lower than the maximum pension otherwise admissible thereunder.

15. In Ghulam Mohi-Ud-Din Lone v. State of J&K and Others, LPA No. 220/2019, decided on 11.12.2020, the Hon’ble High Court of Jammu and Kashmir considered the scope and interplay of Articles 168-A and 168-D of the Jammu and Kashmir Civil Services Regulations and Rule 37(2)(v) of the Jammu and Kashmir Civil Services (Leave) Rules, 1979, in the context of withholding post- retiral benefits where criminal proceedings were pending

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against a retired employee.

16. The Hon’ble Division Bench explained that Articles 168- A and 168-D are complementary and must be read together to give effect to the statutory scheme governing the regulation of pensionary benefits. Article 168-A deals with the conditions governing the relevant departmental or judicial proceedings, whereas Article 168-D addresses the consequences following retirement, including payment of provisional pension and withholding of gratuity. Article 168-D cannot, therefore, be invoked in isolation without examining whether the requirements of Article 168-A and the other applicable statutory conditions stand satisfied.

17. A conjoint reading of these provisions makes it clear that the pendency of judicial proceedings does not, by itself, result in the forfeiture or withholding of every retiral benefit. The consequences of such pendency are governed by the specific provisions of the Regulations, and the extent of withholding cannot travel beyond what the applicable rules authorize. Where the prescribed

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conditions are satisfied, gratuity may remain withheld during the pendency of the qualifying proceedings. However, such withholding cannot automatically be extended to every component of the retiral benefits without examining the statutory provisions governing each benefit separately.

18. The Hon’ble High Court, in Imtiyaz Ahmad Dar v. Union of India and Others, WP(C) No. 03/2023, decided on 13.09.2024, considered the point at which criminal proceedings are to be treated as instituted for the purposes of Articles 168-A and 168-D of the Jammu and Kashmir Civil Services Regulations. The Court held that criminal proceedings for this purpose are instituted upon presentation of the challan before the competent court. Where qualifying proceedings are pending on the date of retirement, the employee’s entitlement to provisional pension and the withholding of gratuity are governed by the aforesaid provisions, subject to their applicability and fulfilment of the prescribed conditions.

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19. In Ghulam Mohi-Ud-Din Lone (supra), the Hon’ble Division Bench further held that, although gratuity may be withheld in accordance with Article 168-D during the pendency of qualifying judicial proceedings, GPF and leave salary cannot be withheld merely on that account in the absence of statutory conditions authorizing such withholding. The Court accordingly directed release of admissible retiral benefits. The judgment also clarifies that mere registration of an FIR or investigation by the investigating agency does not amount to institution of judicial proceedings for the purposes of the aforesaid provisions; the relevant stage is the presentation of the complaint or police challan before the competent court.

20. The aforesaid judgment is relevant to the present controversy, though the factual position in the present case is that the charge-sheet in FIR No. 12/2015 was presented before the competent criminal court on 18.08.2021, prior to the applicant’s retirement on 31.03.2023. Consequently, the applicant’s entitlement to

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provisional pension and the regulation of gratuity must be examined in accordance with Articles 168-A and 168-D, subject to fulfilment of the prescribed conditions. Nevertheless, the principle laid down in Ghulam Mohi- Ud-Din Lone (supra) remains applicable to the extent that benefits not covered by the permissible statutory withholding cannot be withheld merely because the criminal trial remains pending.

21. The position concerning leave encashment is required to be examined separately in the light of Rule 37(2)(v) of the Jammu and Kashmir Civil Services (Leave) Rules, 1979. The said provision permits withholding of the whole or part of the cash equivalent of earned leave where the competent authority is satisfied that there is a possibility of some money becoming recoverable from the retiring Government servant upon conclusion of the pending proceedings. Thus, withholding under this provision is not automatic upon registration of a criminal case or presentation of a challan. The requisite satisfaction of the

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competent authority regarding the possibility of recovery must exist in accordance with the rule.

22. The scope of Article 168-A also requires emphasis. The provision contemplates recovery from pension of an amount representing loss caused to the Government by negligence or fraud, as established in judicial or departmental proceedings, subject to the conditions prescribed therein. It does not confer an unrestricted power to withhold all retiral benefits merely because allegations forming the subject matter of a criminal prosecution remain pending.

23. In Sudershan Mehta v. Union Territory of Jammu and Kashmir and Others, WP(C) No. 2027/2024, decided on 11.09.2025, the Hon’ble Division Bench of the High Court reiterated that Article 168-A concerns the determination of loss caused to the Government by negligence or fraud and that action under the provision must conform to its statutory requirements and the principles of natural justice. The Court set aside the

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impugned recovery where the requisite proceedings to determine such loss had not been conducted. The judgment reinforces the principle that Article 168-A cannot be invoked as a general authority for withholding or recovering pensionary benefits without satisfying its specific requirements.

24. Coming to the facts of the present case, the departmental proceedings initiated against the applicant, Shri Feroze Ahmad Mir, the then Assistant Executive Engineer, J&K Lakes and Waterways Development Authority, who subsequently retired as Executive Engineer, in connection with FIR No. 12/2015 registered at Police Station ACB, culminated in Government Order No. 116-JK(HUD) of 2024 dated 15.05.2024. The proceedings had been initiated pursuant to the sanction for prosecution accorded vide Government Order No. 32-JK-GAD (Vig) of 2021 dated 07.06.2021 and the recommendation for simultaneous departmental action under the Jammu and Kashmir Civil Services (Classification, Control and

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Appeal) Rules, 1956. The applicant was placed under suspension vide Government Order No. 99-JK(HUD) of 2021 dated 21.06.2021, and a chargesheet was served upon him on 07.06.2022. Subsequently, Shri Naseer Ahmad Kakroo, Chief Engineer, UEED, was appointed as the Inquiry Officer vide Government Order No. 98- JK(HUD) of 2022 dated 01.07.2022. The Inquiry Officer, in his report dated 29.07.2022, observed that the applicant had attended the BOCA meeting as a proxy representative of his Executive Engineer under the verbal instructions of his superiors and had endorsed the No Objection Certificate issued by LAWDA. His role was found to be confined to verifying the correctness of the said NOC, particularly with regard to the distance from water bodies, whereas scrutiny of building plans vis-à-vis the Master Plan and examination of the NOC issued by the Srinagar Development Authority, along with the observations of the Town Planning Section of SMC, fell within the domain of the concerned planning experts. As the

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correctness of the NOC issued by LAWDA was not questioned and the charges against the applicant could not be substantiated, the Inquiry Officer recommended that the charges be dropped and the case against him be closed. The matter was thereafter considered by the Review Committee in its meeting held on 06.02.2023, and the applicant was reinstated vide Government Order No. 49-JK(HUD) of 2023 dated 29.03.2023. Ultimately, accepting the recommendations of the Inquiry Officer, the Government, vide Government Order No. 116-JK(HUD) of 2024 dated 15.05.2024, ordered closure of the departmental proceedings against the applicant, subject to the outcome of any writ petition pending before a competent court of law. The aforesaid departmental outcome is a relevant circumstance to be taken into account by the respondents while determining the applicant’s entitlement to retiral benefits. However, the closure of the departmental proceedings, by itself, does not determine the outcome of the separate criminal

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proceedings arising out of the FIR in question.

25. Further, vide Government Order No. 162-JK(HUD) of 2024 dated 08.08.2024, the competent authority directed that the applicant’s suspension period from 21.06.2021 to 28.03.2023 be treated as spent on duty for all purposes in terms of Article 108-B of the Jammu and Kashmir Civil Services Regulations, Volume I. In the absence of any material showing that the said order has been modified, withdrawn or set aside by a competent authority or court, its operative effect must be respected. The departmental exoneration and the treatment of the suspension period as spent on duty are material circumstances; however, they do not, by themselves, override any statutory restriction lawfully applicable to a particular retiral benefit.

26. In the present case, the impugned Government Order No. 267-JK(JSD) of 2025 dated 28.11.2025 refers to the pendency of the criminal proceedings and the presentation of the charge-sheet before the competent court. The respondents have relied upon Articles 168-A and 168-D to

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justify their action. However, the impugned order does not adequately distinguish between the various categories of retiral benefits or demonstrate the statutory basis for withholding each of them. In particular, it does not sufficiently explain the application of Rule 37(2)(v) to the applicant’s claim for leave encashment or identify any independent statutory provision justifying the blanket withholding of GPF and other admissible dues.

27. The competent authority is empowered, subject to the applicability of Articles 168-A and 168-D and fulfilment of the conditions prescribed therein, to regulate the applicant’s pensionary entitlement and withhold gratuity during the pendency of qualifying judicial proceedings. Such power, however, cannot be construed as authorizing the extensive withholding of all retiral benefits without reference to the statutory provisions governing each category. The applicant’s entitlement to provisional pension, gratuity, GPF, leave encashment and other admissible dues must accordingly be determined

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separately in the light of the respective rules applicable thereto.

28. Applying the aforesaid principles to the facts of the present case, I am of the considered view that the respondents may regulate the applicant’s pensionary entitlement and gratuity in accordance with Articles 168- A and 168-D, subject to the applicability of those provisions and fulfilment of the prescribed conditions. However, the impugned consideration order cannot be sustained insofar as it results in the blanket withholding of all retiral benefits solely on account of the pendency of criminal proceedings, without examining the separate statutory provisions governing each benefit. The mere pendency of the criminal prosecution does not, by itself, confer unrestricted authority to withhold all retiral benefits indefinitely. Any such restriction must be supported by an express provision of law and must satisfy the conditions prescribed thereunder.

29. Accordingly, the impugned Government Order No. 267-

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JK(JSD) of 2025 dated 28.11.2025 is liable to be set aside to the extent that it rejects the applicant’s entire claim for retiral benefits solely on the ground of the pendency of the criminal trial. The respondents are required to examine the applicant’s entitlement to the respective benefits in accordance with the applicable rules and the observations made hereinabove, and to release the amounts found admissible, subject only to any lawful withholding or adjustment specifically authorized by the governing provisions.

30. In view of the foregoing discussion, the Original Application is allowed in the following terms:

(i) Government Order No. 267-JK(JSD) of 2025 dated 28.11.2025 is hereby set aside to the extent that it rejects the applicant’s entire claim for retiral benefits without separately examining the statutory provisions governing each category of benefit.

(ii) Provisional pension: The respondents shall sanction and release provisional pension to the applicant in accordance with Articles 168-A and 168-D of the Jammu and Kashmir Civil Services Regulations, 1956, if not already sanctioned and released, subject to the applicability of the said

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provisions and the conditions prescribed therein.

(iii) Gratuity: The applicant’s claim for gratuity or death-cum- retirement gratuity shall be regulated in terms of Article 168-D read with Article 168-A and other applicable provisions during the pendency of the qualifying criminal proceedings. Upon conclusion of the proceedings and issuance of final orders thereon, the competent authority shall pass appropriate orders regarding its release in accordance with law and within a period of four months.

(iv) GPF and other admissible dues: The respondents shall examine and release the applicant’s GPF and other admissible retiral or service dues which are not lawfully subject to withholding under Article 168-D or any other applicable statutory provision, after verification of the relevant records and adjustment of any lawful and established Government dues.

(v) Leave encashment: The applicant’s entitlement to the cash equivalent of earned leave shall be considered in accordance with Rule 37(2)(v) of the Jammu and Kashmir Civil Services (Leave) Rules, 1979. Any withholding under the said provision shall be permissible only upon fulfilment of the prescribed conditions, including the recording of the requisite satisfaction by the competent authority regarding the possibility of recovery of money from the applicant upon conclusion of the proceedings.

(vi) Final pensionary settlement: Upon conclusion of the criminal proceedings and issuance of final orders in

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accordance with law, the respondents shall undertake the final settlement of the applicant’s pensionary benefits in terms of the applicable rules, subject to any lawful adjustment or recovery that may be ordered by the competent authority and within a period of four months.

(vii) The respondents shall also consider and decide the applicant’s claim for interest on delayed payment in accordance with the applicable rules and governing judicial precedents.

31. The respondents shall complete the aforesaid exercise within a period of eight weeks from the date a certified copy of this order is served upon them. All amounts found admissible and not lawfully liable to be withheld shall be released within the said period, together with any consequential arrears lawfully payable. In the event of withholding any particular benefit, the competent authority shall record the specific statutory provision and reasons justifying such withholding.

32. It is clarified that this Tribunal has not expressed any opinion on the merits of the criminal prosecution pending against the applicant. The observations made herein are confined to the applicant’s entitlement to retiral benefits

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under the applicable service rules and shall not prejudice the adjudication of the criminal case or any action lawfully permissible upon its conclusion.

33. The Original Application is accordingly allowed in the aforesaid terms. There shall be no order as to costs.

34. All pending miscellaneous applications, if any, shall also stand disposed of.

35. The Registry shall consign the record to the Record Room after due compliance.

(JUSTICE RITU TAGORE) Member(Judl.)

22.10.2026 DEVENDRA TRIPATHI

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